1982 INSC 0250
                                                Sheonandan Paswan

                                                           Vs

                                             State of Bihar and Others

                                        Criminal Appeal No. 241 of 1982

                              (V. D. Tulzapurkar, Baharul Islam, R. B. Misra JJ)

                                                      16.12.1982

                                                     JUDGMENT

TULZAPURKAR, J -

1. By this appeal preferred on the basis of the special leave granted to him. The appellant is
challenging the withdrawal from the prosecution of respondents 2, 3 and 4 in a criminal case under
Section 321 of the Criminal Procedure Code. 1973.

2. After obtaining the requisite sanction from the Governor on February 19, 1979 a charge-sheet in
Vigilance P. S. Case No. 9 (2) 78 was filed by the State of Bihar against respondent 2 (Dr. Jagannath
Misra), respondent 3 (Nawal Kishore Sinha), respondent 4 (Jiwanand Jha) and three others (K. P.
Gupta, since deceased, M. A. Haidari and A. K. Singh, who later became approvers) for offences
under sections 420/466/471/109/120-B, IPC and under Section 5 (1) (a), 5 (1) (b) and 5 (1) (d) read
with Section 5 (2) of the Prevention of Corruption Act, 1947. Inter alia, the gravamen of the charge
against respondent 2 was that at all times material he was either a Minister or the Chief Minister of
Bihar and in that capacity by corrupt or illegal means or by otherwise abusing his position as a
public servant, he, in conspiracy with the other accused and with a view to protect Nawal Kishore
Sinha in particular, sought to subvert prosecution and surcharge proceedings against Nawal Kishore
Sinha and others, and either obtained for himself or conferred on them pecuniary advantage to the
detriment of Patna Urban Cooperative Bank, its members, depositors and creditors and thereby
committed the offence of criminal misconduct under Section 5 (1) (d) read with Section 5 (2) of the
Prevention of Corruption Act, 1947 and in that process committed the other offences specified in
the charge-sheet, including the offence of forgery under Section 466 IPC. Cognizance of the case
was taken on November 21, 1979 by the learned Chief Judicial Magistrate-cum Special Judge
(Vigilance) Patna, who issued process against the accused but before the trial commenced the State
Government, at the instance of respondent 2 who in the meantime had come to power and had
become the Chief Minister, took a decision in February 1981 to withdraw from the prosecution for
reasons of State and public policy. Though initially Shri Awadhesh Kumar Datta, Senior Advocate,
Patna High Court had been appointed as a Special Public Prosecutor by the previous Government
for conducting the said case, the State Government (now headed by respondent 2) without
cancelling Shri Datta's appointment as Special Public Prosecutor, on February 24, 1981 constituted
a fresh panel of lawyers for conducting cases pertaining to Vigilance Department and Shri Lalan
Prasad Sinha, one of the Advocates so appointed on the fresh panel was allotted the said case and
was informed of the Government's said decision and on March 26, 1981 he was further requested to
take steps for the withdrawal of the case after he had considered the matter and satisfied himself
about it. On June 17, 1981 Shri Lalan Prasad Sinha made an application under Section 321, CrPC,
1973 to the Special Judge seeking permission to withdraw from the prosecution of respondents 2, 3
and 4 in the case on four grounds, namely, (a) lack of prospect of successful prosecution in the light
of the evidence, (b) implication of the persons as a result of political and personal vendetta, (c)
inexpediency of the prosecution for the reasons of the State and public policy and (d) adverse effects
that the continuance of the prosecution will bring on public interest in the light of the changed
situation; and the learned Special Judge by his order dated June 20, 1981 granted the permission. A
Criminal Revision (No. 874 of 1981) preferred by the appellant against the said order was dismissed
in limine by the High Court on September 14, 1981. It is this withdrawal from the prosecution
permitted by the learned Special Judge and its confirmation by the High Court that are being
challenged in this appeal.

3. Counsel for the appellant raised three or four contentions in support of the appeal. In the first
place he contended that the impugned withdrawal was utterly unjustified on merits and also illegal
being contrary to the principles enunciated by this Court governing the exercise of the power under
Section 321, CrPC. According to him the decisions of this Court bearing on the nature and scope of
the power under the section clearly suggest that for purposes of that section a dichotomy exists
between political offences and common law offences and that the considerations of public policy,
public interest, reasons of State or political and personal vendetta may become relevant in the case
of the former category but are irrelevant while withdrawing from the prosecution of common law
offences and since in the instant case the offences with which the accused and particularly
respondent 2 had been charged were common law offences, namely, bribery (criminal misconduct)
and forgery and not with any political offence the grounds at (b), (c) and (d) mentioned in the
application seeking permission for withdrawal were irrelevant and extraneous and since extraneous
and nongermane considerations influenced the Public Prosecutor as also the court the withdrawal is
vitiated and is bad in law; and as regards ground (a), namely, insufficiency of evidence or lack of
prospect of successful prosecution the same was clearly untenable being in teeth of undisputed and
genuine documentary evidence including the orders admittedly passed by respondent 2 in his own
hand that was available to prove the charges; he also urged that in a case where the proof of the
offences was primarily based on documentary evidence, the genuineness of which was not in
dispute no question of political and personal vendetta or unfair and overenthusiastic investigation
could arise : therefore, the impugned withdrawal deserved to be quashed. Secondly, counsel
contended that Shri Lalan Prasad Sinha was not the competent officer to apply for withdrawal from
the prosecution of the case under Section 321, CrPC inasmuch as that Shri A. K. Datta's
appointment as Special Public Prosecutor made under Section 24 (8). CrPC to conduct this case had
not been cancelled and as such the application for permission to withdraw as well a the permission
granted thereon were unauthorised, incompetent and illegal. Thirdly, it was urged that on the facts
and circumstances of the case Shri Lalan Prasad Sinha did not function independently as a free
agent but was influenced and guided by the State Government's decision in the matter and as such
the withdrawal at the behest of the Government was vitiated. Counsel also urged that Sri Lalan
Prasad Sinha's decision (if at all it was his own) to withdraw from the prosecution as well as the
Special Judge's decision to grant permission were vitiated by non-application of mind.

4. On the other hand, counsel for the respondents refuted all the contentions urged on behalf of the
appellant. It was denied that the withdrawal in question was unjustified on merits or illegal or
contrary to the principles governing the exercise of the power under Section 321 : on the contrary
counsel for the respondents urged that the decision of this Court had clarified the position that under
the Code a withdrawal from the prosecution was an executive function of the Public Prosecutor, that
the discretion to withdraw from the prosecution was that of the Public Prosecutor and none else and
that he could withdraw from the prosecution not merely on the ground of paucity of evidence but on
other relevant grounds as well in order to further the broad ends of public justice, public order and
peace and the broad ends of public justice would include appropriate social, economic and political
purposes, and what was more in granting its consent to the withdrawal the court merely performed a
supervisor function and in discharging such function the court was not to reappreciated the grounds
which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether
the Public Prosecutor had applied his mind as a free agent, uninfluenced by irrelevant or extraneous
considerations. It was disputed that the grounds (b), (C) and (d) mentioned in the application
seeking permission to withdraw were irrelevant or extraneous or that ground (a) was untenable.
According to counsel, in the instant case Shri Lalan Prasad Sinha, being in charge as well as in the
conduct of the case was competent to make the application for withdrawal and he had done so after
considering all the relevant factors and circumstances bearing on the issue and satisfying himself
about it and not at the behest of the Government as contended by the appellant and the learned
Special Judge also performed his supervisory functioning granting the requisite permission on
relevant considerations. Counsel emphatically denied that either the Public Prosecutor's decision to
withdraw from the prosecution or the Special Judge's supervisory function was vitiated by non-
application of mind. Lastly, it was contended that this Court should not interfere with the impugned
order of the trial court as well as the High Court in exercise of its powers under Article 136 of the
Constitution and the appeal be dismissed.

5. Having regard to the aforesaid rival contentions that were urged before us by the learned
Attorney-General and counsel on either side it is clear that principally three questions arise for our
determination in this appeal, namely, (1) What is the true scope and nature of the power under
Section 321 of Cr. P. C. 1973 ? (2) Whether Shri Lalan Prasad Sinha was competent officer entitled
to apply for withdrawal from the prosecution and if so whether he discharged his executive function
independently as a free agent? And (3) whether the withdrawal; from the prosecution of respondents
2,3 and 4 in Vigilance P. S Case No. 9 (2) 78 was unwarranted and unjustified on facts as also in
law? In other words, whether the executive function of the Public Prosecutor and/or the supervisory
function performed by the court was vitiated on account of extraneous considerations or non-
application of mind etc. deserving interference by this Court?

6. On the first question Section 321 in terms gives no guidance : it merely says that "the Public
Prosecutor in charge of a case may, with the consent of the court, at any time before the judgment is
pronounced, withdraw from the prosecution of any person either generally or in respect of any one
or more of the offences for which he is tried" and goes on to indicate the results that entail upon
such withdrawal, namely, either a discharge of the accused if the withdrawal is made after the
charge has been framed; in other words, it gives no indication or guideline as to in what
circumstances or on what grounds the Public Prosecutor may apply for withdrawal from the
prosecution nor the consideration on which the court is to grant its consent and hence the necessity
to go to decisions of this Court for ascertaining the true scope and nature of the power contained in
it. In this behalf quite a few decisions of this Court both in regard to the earlier provision contained
in Section 494, Cr PC. 1898 and the Present provision contained in Section 321 (both being
substantially in pari material) were referred to by counsel for the parties but it is not necessary to
deal with all of them and reference to four decisions, namely, state of Bihar v. Ram Naresh Pandey,
State of Orissa v. Chandrika Mohapatra Balwant Singh v. State of Bihar and R. K. Jain v. State
having a bearing on the aspects under consideration will suffice. These decisions, apart from
enunciating the principles which would govern the exercise of the power under the section,
emphasise the functional dichotomy of the Public Prosecutor (who performs an executive function)
and the court (which performs a supervisory judicial function) thereunder.

7. In Ram Naresh Pandey case the Court while dealing with Section 494 of the old Code observed
thus :

                  The section is an enabling one and vests in the Public Prosecutor the discretion to
                  apply to the Court for its consent to withdraw from the prosecution of any person.
                  The consent if granted, has to be followed up by his discharge or acquittal, as the
                  case may be... There can be no doubt, however, that the resultant order, on the
                  granting of the consent, being as order of 'discharge' or 'acquittal', would attract the
                  applicability of correction by the High Court under Sections 435, 436 and 439 or 417
                  of the Code of Criminal Procedure. The function of the Court, therefore, in granting
                  its consent may well be taken to be a judicial function. It follows that in granting the
                  consent the Court must exercise a judicial discretion... The initiative is that of the
                  Public Prosecutor and what the Court has to do in only to giver its consent and not to
                  determine any matter judicially... The judicial function, therefore, 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
                  between improperly exercised, or that it is not an attempt to interfere with the normal
                  course of justice for illegitimate reasons or purposes..... It (Section 494) cannot be
                  taken to place on the Court the responsibility for a prima facie determination of a
                  triable issue. For instance the discharge that results therefrom need not always
                  conform to the standard of "no prima facie case" under Section 209 (1) and 253 (1)
                  or of "groundlessness" under Section 209 (2) and 253 (2). This is not to say that a
                  consent is to be lightly given on the application of the Public Prosecutor, without a
                  careful and proper scrutiny of the grounds on which the application for consent is
                  made.

8. In Chandrika Mohapatra case while setting out the principles that should be kept in mind by the
Court at the time of giving consent to withdrawal from the prosecution under Section 494 the Court
observed thus : [SCC para 6, p. 253 : SC (Cri) pp. 586-871]

It will therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not
expedient to proceed with the prosecution. He has to make out some ground which would show that
the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to
produce sufficient evidence to sustain the charge or that there are other circumstances which clearly
show that the object of administration of justice would not be advanced or furthered by going on
with the prosecution. The ultimate guiding consideration must always be the interest of
administration of justice and that is the touchstone on which the question must be determined
whether the prosecution should be allowed to be withdrawn.

It may be stated that Criminal Appeal No. 310 of 1975 was one of the appeals decided by the Court
in that case. In that appeal the incident, during the course of which offences under Sections 147,
148, 149, 307, and 324, IPC were said to have been committed, had arisen out of revelry between
two trade unions and since the date of the incident calm and peaceful atmosphere prevailed in the
industrial undertaking and in those circumstances the State felt that it would not be conducive to the
interest of justice to continue the prosecution against the respondents since the prosecution with the
possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and
disturb the calm and peaceful atmosphere prevailing in the industrial undertaking and hence
permission to withdraw was sought and granted. Upholding and hence permission the Court
observed thus : [SCC par 10, p. 255 : SCC (Cri) pp. 588-89]
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 section, the
State should clearly be at liberty to withdraw from the prosecution.

9. In Balwant Singh Case the independent role of the Public Prosecutor in making an application for
withdrawal from the prosecution was emphasised and the Court pointed our that the solve
consideration which should guide the Public Prosecutor before he decides to withdraw from the
prosecution was the large factor of the administration of justice and not political favours nor party
pressures nor the like considerations; nor should he allow himself to be dictated by his
administrative superiors to withdraw from prosecution, but that the consideration which should
weigh with him must be whether the broader cause of public justice will be advanced or retarded by
the withdrawal or continuance of the prosecution. The Court also indicated some instances where
withdrawal from prosecution might be resorted to independently of the merits of the case where the
broader cause of public justice would be served : [SCC para 2, p. 449 : SCC (Cri) p. 634)

Of course, the interest of public justice being the paramount consideration they may transcend and
overflow the legal justice of the particular litigation. For instance communal feuds which may have
been amicably settled should not re-erupt on account of one or two prosecutions pending. Labour
disputes which might have given rise to criminal cases, when settled, might probably be another
instance where the interests of public justice in the broader connotation may perhaps warrant
withdrawal from the prosecution. Other instances also may be given where public justice may be
served by withdrawal even apart from the merits of the case.

10. In R. K. Jain case after reviewing the entire case-law on the subject this Court enunciated eight
propositions as emerging from the decided cases (SCR p. 996), out of which the following six
would be material for the purposes of the instant case : [ SCC para 14, p. 445 : SCC (Cri) p. 767]

                  #* * *##

                  2. The withdrawal from the prosecution is an executive function of the Public
                  Prosecutor.

                  3. The discretion to withdraw from the prosecution is that of the Public Prosecutor
                  and none else, and so, he cannot surrender that discretion to someone else.

                  4. The government may suggest to the Public Prosecutor that he may withdraw from
                  the prosecution but none can compel him to do so.

                  5. The Public Prosecutor may withdraw from the prosecution not merely on the
                  ground of paucity of evidence but on other relevant grounds as well in order to
                  further the broad ends of public justice, public order and peace. The broad ends of
                  public justice will certainly include appropriate social, economic and, we add,
                  political purposes sans Tanmany Hall enterprises.

                  #* * *##

                  7. The court performs a supervisory function in granting its consent to the
                  withdrawal.

                  8. The court's duty is not to reappreciate the grounds which led the Public Prosecutor
                  to request withdrawal from the prosecution but to consider whether the Public
                  Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and
                  extraneous considerations. The court has a special duty in this regard as it is the
                  ultimate repository of legislative confidence in granting or withholding its consent to
                  withdrawal from the prosecution.

                  By way of elaborating proposition 4 above, the Court has gone on to observe thus :
                  [SCC para 16, pp. 445-46 : SCC (Cri) pp. 767-68]

                  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,
                  students unrest etc. Wherever issues involve the emotions and there is a surcharge of
                  violence in the atmosphere it has 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.

                  Similarly, by way of elaborating proposition 6 above the Court has gone on the
                  observe thus : [SCC para 15, p. 445 : SCC (Cri) p. 767]

                  We may add it shall be the duty of the Public Prosecutor to inform the court and it
                  shall be the duty of the court to apprise itself of the reasons which prompt the Public
                  Prosecutor to withdraw from the prosecution. The court has a responsibility and a
                  stake in the administration of criminal justice against possible abuse or misuse by the
                  executive by resort to the provisions of section 361, Criminal Procedure Code. The
                  requires that once the case has travelled to the court, the court and it officers along
                  must have control over the case and decide what is to be done in each case.

11. From the aforesaid enunciation of the legal position governing the proper exercise of the power
contained in Section 321, three or four things become amply clear. In the first place though it is an
executive function of the Public Prosecutor for which statutory discretion is vested in him, the
discretion is neither absolute nor unreviewable but it is subject to the Court's supervisor function. In
fact being an executive function it would be subject to a judicial review on certain limited grounds
like any other executive action; the authority with whom the discretion is vested" must genuinely
address itself to the matter before it, must not act under the dictates of another body, must not do
what it has been forbidden to do, must act in good faith, must have regard to all relevant
considerations and must not be swayed by irrelevant considerations, must not seek to promote
purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not
act arbitrarily or capriciously.... These several principles can conveniently be grouped in two main
categories : failure to exercise a discretion, and excess or abuse of discretionary power. The two
classes are not, however, mutually exclusively"
12. Secondly since the trial court's supervisory function of either granting or refusing to grant the
permission is a judicial function the same is liable to correction by the High Court under its
revisional powers both under the old as well as the present Code of Criminal Procedure and
naturally this Court would have at least coextensive jurisdiction with the High Court in an appeal
Preferred to it by special leave or upon a certificate by the High Court.

13. Thirdly, no dichotomy as such between political offences or the like on the one hand and
common law crimes on the other cloud be said to have been made by this Court for purposes of
Section 321 as contended for by counsel for the appellant, for even in what are called political
offences or the like committing common law crimes is implicit for the withdrawal from the
prosecution of which the power under Section 321 has to be resorted to. But the decisions of this
Court do lay down that when common law crimes are motivated by political ambition or
considerations or they are committed during or are followed by mass agitations, communal frenzies,
regional disputes, industrial conflicts, students unrest or like situations involving emotive issues
giving rise to an atmosphere criminal justice in a particular litigation and withdrawal from the
prosecution of that litigation would become necessary, a certainly of conviction notwithstanding,
and persistence in the prosecution in the name of vindicating the law may prove counter-productive.
In other words, in case of such conflict between the two types of public interests, the narrower
public interest should yield to the broader public interest, and therefore, and onerous duty is cast
upon the court to weigh and decide which public interest should prevail in each case while granting
or refusing to grant its consent to the withdrawal from the prosecution. For, it is not invariably that
wherever crime is politically motivated or is committed in or is followed by any explosive situation
involving emotive issue that the prosecution must be withdrawn. An instance in point would be the
case of Mahatma Gandhi's assassination, which was in a sense politically motivated (due to transfer
of Rs. 55 Crores to Pakistan) and was followed by explosive situation involving emotive issue
resulting in widespread violence, arson and incendiarism against members of a class in the country
particularly in Maharashtra but no one suggested any withdrawal and the prosecution of the accused
persons, who also included a political personality, was rightly carried to its logical end resulting in
conviction of the guilty and acquittal of the political personality. In other words, in each case of
such conflict the court has to weigh and decide judiciously. But it is obvious that unless the crimes
in question are per se political offences like sedition or are motivated by political considerations or
are committed during or are followed by mass agitations, communal frenzies, regional disputes,
industrial conflicts, student unrest or the like situations involving emotive issues giving rise to an
atmosphere surcharged with violence, no question of serving any broader cause of public justice,
public order or peace would arise and in the absence thereof the public interest of administering
criminal justice in a given case cannot be permitted to be sacrificed, particularly when a highly
placed person is allegedly involved in the crime, as otherwise the common man's faith in the rule of
law and democratic values would be shattered.

14. Fourthly, the decision in R. K. Jain case clearly shows that when paucity of evidence or lack of
prospect of successful prosecution in the ground for withdrawal the court has not merely the power
but a duty to examine the material on record without which the validity and propriety of such
ground cannot be determined. In that case this Court disposed of two sets of appeals, one where the
withdrawal from the prosecution against George Fernandes and others was on the ground that the
offences were of political character and the other pertained to withdrawal from the prosecution in
four cases against Choudhry Bansi Lal on the ground that the evidence available was meagre and in
one out of the four cases the complainant (Shri Manohar Lal) had been suitably and profitably
compensated. The Court upheld the grant of permission for withdrawal in both the sets of appeals-in
the first set on the ground that offences of a political character, the motive attributed to the accused
being that they wanted to change the Government led by Shrimati Gandhi and therefore with the
change the Government led by Shrimati Gandhi and therefore with the change in the Government
the broad ends of public justice justified the withdrawal, while in the other set the Court examined
the entire material available on record and came to the conclusion that the ground put forward had
been made out and justified the withdrawal. It may be stated that in M. N. S. Nair v. P. V.
Balakrishnan the Sessions Court as well as the High Court had permitted withdrawal from the
prosecution of a case involving offences of forgery, cheating, etc. on the ground that the dispute was
of a civil nature, that there had been enormous delay in proceeding with a trial and that securing of
evidence would involve heavy expenses for the State as witnesses were in far of places. This Court
allowed the appeal, set aside the permission granted for the withdrawal and directed the trial to
proceed in accordance with the law after holding that none of the grounds alleged or even their
cumulative effect would justify the withdrawal from the prosecution; in particular after examining
the material on record this Court came to the conclusion that the finding of the lower courts that the
dispute was of a civil nature was incorrect. It is thus clear that when paucity of evidence or lack of
prospect of successful prosecution is the ground for withdrawal this court must of necessity examine
the material in order to determine the validity or propriety of the ground. It is in the light of the
aforesaid legal principles that two questions arising in this appeal will have to be decided.

15 The next question raised by counsel for the appellant was whether Shri Lalan Prasad Sinha was
the competent officer entitled to apply for the withdrawal from the prosecution and if so whether he
discharged his function independently as a free agent ? In this behalf counsel urged that the initial
appointment of Shri A. K. Datta as the Special Public Prosecutor made by the State Government
under Section 24 (8), Cr PC on February 26, 1979 to conduct merely be regarded as one of the four
Public Prosecutors appointed on the fresh panel constituted under Law (Justice) Department's letter
No. C/ Mis-8-43/78 J dated February 24, 1981 and that though this particular case had been allotted
to him by the letter dated February 25, 1981, he had no authority over the head of Shri A. K. Datta
to apply for withdrawal from the prosecution and as such the application made by him would be
unauthorised and illegal and consequently the Court's order dated June 0, 1981 would be vitiated.
Counsel further contended that the State Government had already taken a decision to withdraw from
the prosecution in this case on grounds of inexpediency of prosecution for reasons of State and
public policy, that the said decision was communicated to Shri Lalan Prasad Sinha, who was
directed to take steps in that behalf and that it was pursuant to such direction that he made the
application and not independently on his own as a free agent and, therefore the executive function
on the [part of the Public Prosecutor (assuming he had the authority to make the application) was
improperly performed. It is not possible to accept either of these contentions for reasons we shall
presently indicate.

16. It is true that the appointment of Shri A. K. Datta made by the previous Government as the
Special Public Prosecutor to conduct this case had not been cancelled, though in fitness of things the
new Government should have done so but that did not prevent the new Government to make a fresh
appointment of a Public Prosecutors generally fall under Section 24 (8) and in the instant case under
the law (justice) Department's letter dated February 24, 1981 a fresh panel of lawyers consisting of
four Advocates including Shri Lalan Prasad Sinha was constituted "for conducting cases pertaining
to Vigilance Department both at Head quarters at Patna as also outside Patna" and therefore. Shri
Lalan Prasad Sinha will have to be regarded as having been appointed as |Special Public Prosecutor
under Section 24 (8). But apart from this aspect of the matter, on the fact obtaining in the case, it
cannot be disputed that Shri A. K. Datta not having appeared before the Special Judge at any stage
of the hearing was never de facto incharge of the case nor in the actual conduct of the case : on the
other hand, after the allotment of this case to him Shri Lalan Prasad Sinha was incharge of the case
and was actually conducting the case he having admittedly appeared in the case at the least on four
occasion (on April 6, April 21, April 27 and May 26, 1981) before the Special Judge, and
therefrom, in our view, he was the proper person who could make the necessary application in the
matter of withdrawal. In this context it will be useful to point out that Section 494 of the old Code
seemed to authorise "any Public Prosecutor" to withdraw from the prosecution with the consent of
the court but this Court in State of Punjab v. Surjit Singh had held that "the reasonable interpretation
to be placed upon Section 494, in our opinion is that it is only the Public Prosecutor, who is
incharge of a particular case and is actually conducting the prosecution, that can file an application
under that section, seeking permission to withdraw from the prosecution". The same view was
reiterated by this Court in the case of M. N. Sankaranarayanan Nair v. P. V. Balakrishnan The
present Section 321, Cr Pc. has given legislative recognition to the aforesaid view of this Court
inasmuch as it expressly provides that the Public Prosecutor "incharge of a case" may withdraw
from the prosecution with the consent of the court. We are satisfied that though appointed 1979 Shri
A. K. Datta was neither incharge of the case nor was actually conducting the same at the material
time and since Shri Lalan Prasad Sinha was not merely incharge of the case but was actually
conducting the case was the proper officer to apply for the withdrawal from the prosecution.

17. Similarly, there is no substance in the contention that Shri Lalan Prasad Sinha had sought the
withdrawal from the prosecution at the behest of the State Government. It is true that the State
Government had taken its own decision to withdraw from the prosecution in the case against
respondent 2,3 and 4 and it is also true that said decision was communicated to Shri Lalan Prasad
Sinha but if the two letters one dated February 25, 1981 from the Law Secretary to the District
Magistrate and the other dated March 26. 1981 from the Additional Collector, Incharge Legal
Section to the special Public Prosecutor, Incharge Vigilance cases, are carefully scrutinized it will be
clear that the State Government merely suggested to Shri Lalan Prasad Sinha (which it was entitled
to do) to withdraw from the prosecution but at the same time asked him to consider the matter on
his own and after satisfying himself about it make the necessary application which he did on June
17, 1981 and there is no material to doubt the recital that is found in the application that he had
himself considered relevant materials connected with the case and had come to this own conclusion
in that behalf. We are not impressed by the argument that the appointment of Shri Lalan Prasad
Sinha was made only for applying for withdrawal and not for conducting the case. The appellant's
contention, therefore, has to be rejected.

18. The next important question that arises for consideration is whether the withdrawal from the
prosecution of respondents 2, 3 and 4 in Vigilance P. S. Case No. 9 (2) 78 was unwarranted,
unjustified or illegal on facts as also in law. In other words, the real question is whether the
executive function of the Public Prosecutor and/or the supervisory function of the trial court in
granting its consent to the withdrawal have been improperly performed or are vitiated by reason of
any illegality? This will necessitate the consideration of the four grounds on which the withdrawal
was sought by the Public Prosecutor and granted by the trial court under Section 321, Cr PC. As
stated earlier, pursuant to the suggestion of the State Government and after considering the matter
for himself Shri Lalan Prasad Sinha in his application dated June 17, 1981 specifically set out four
grounds for withdrawal from the prosecution, namely (a) lack of prospect of successful prosecution
in the light of evidence, (b) the implication of the persons as a result of political and personal
vendetta, (c) the inexpediency of the prosecution for the reasons of the State and Public Policy, and
(d) the adverse effects that the continuation of the prosecution will bring on public interest in the
light of the changes situation. Significantly enough the leaned Special Judge after summarising the
submissions of Shri Lalan Prasad Sinha, which were in terms of the averment made and the grounds
set out in the application passed a short-reasoned order on June 20, 1981 as follows :
                  Having considered the legal position explained by the Supreme Court (in R. K. Jain
                  case) and submissions made by the learned Special P. P. incharge of this case and
                  having perused the relevant records of the case I am satisfied that it is a fit case in
                  which prayer of the learned special P. P to withdraw should be allowed and it is,
                  therefore, allowed.. Consequently the Special P. P. Shri Lalan Prasad Sinha is
                  permitted to withdraw from the prosecution and in view of section 321 (a) Cr PC the
                  accused persons are discharged.

In other words, the learned Special Judge accepted al the grounds on which withdrawal was sought
and granted the permission to withdraw from from the prosecution on those grounds. The question
is whether Vigilance P. S. Case No. 9 (2) 78 was such as would attract the grounds and even if the
grounds were attracted was withdrawal from the prosecution justified?

19. Out of the four grounds set out above, I shall deal with grounds (b), (c) and (d) first and ground
(a) later. In the light of the legal principles discussed above it cannot be dispute that grounds like the
inexpediency of the prosecution for the reasons of State or public policy, implication of the accused
persons out of political and /or personal vendetta and adverse effects which the continuance of
prosecution will have on public interests in the light of changed situation are appropriate and have a
bearing on the broader cause of public justice, public order and peace, which might in a given case
outweigh or transcend the narrower public interest of administering criminal justice in a particular
litigation necessitating the withdrawal of the latter, but, as observed earlier, no question of serving
any broader cause of public justice, public order or peace can arise unless the crimes allegedly
committed are per se political offences or are motivated by political ambitions or considerations or
are committed during or are followed by mass agitations, communal frenzies, regional disputes
conflicts, student unrest or like situations which involve emotive issues giving rise to a surcharged
atmosphere of violence. Admittedly, the offences of bribery (criminal misconduct) and forgery
which are said to have been committed by respondent 2 in conspiracy with the other accused are
ordinary common law crimes and were not committed during nor were they followed by any mass
agitation or communal frenzy or regional dispute or industrial conflict or student unrest or the like
explosive situation involving any emotive issue giving rise to any surcharged atmosphere of
violence : further it cannot be disputed that these are not per se political offences nor were they
committed out of any political motivation whatsoever : in fact the motivating force behind hem was
merely to give protection to and shield Shri Nawal Kishore Sinha, a close friend, from criminal as
well as civil liability - a favouritism amounting to criminal misconduct allegedly indulged in by
respondent 2 by abusing his position as a Minister or the Chief Minister of Bihar. If therefore the
offences did not partake of any political character nor were committed in nor followed by any
explosive situation involving emotive issue giving rise to any surcharged atmosphere of violence no
question serving any broader cause of public justice, public order or peace could arise and in
absence thereof the public interest of administering criminal justice in this particular case could not
be permitted to be sacrificed. In other words, this being an ordinary criminal justice in this
particular case could not be permitted to be sacrificed. In other words, this being an ordinary
criminal case involving the commission of common law crimes of bribery and forgery in ordinary
normal circumstances with self-aggrandisement or favouritism as the motivating force; grounds (b),
(c) and (d) were irrelevant and extraneous to the issue of withdrawal and since admittedly these
were the considerations which unquestionably influenced the decision of the Public Prosecutor in
seeking the withdraw as well as the decision of the trial court to grant the permission, the impugned
withdrawal from the prosecution would stand vitiated in law.

20. Counsel for the respondents urged that as a result of the elections there was a change in the
situation, that respondent 2's party had received the peoples' mandate and voted to power, that
respondent 2 had become the Chief Minister of the State and that the prosecution against the head of
the state would have had adverse effects on public interest including public order and peace and,
therefore, its continuation was regarded as inexpedient for reasons of State and public policy. I fail
to appreciate the contention, for, what has the change in the situation brought about by the elections
putting one or the other party in power got to do with the continuation of prosecution for ordinary
common law crimes of bribery (criminal misconduct) and forgery especially when the offences were
not actuated by any political motivation whatsoever nor had they been committed in or followed by
any explosive situation involving emotive issue? No emotive issue was or is involved whatsoever.
Surely, in the absence of the aforesaid aspect no results of any election, howsoever sweeping, can be
construed as the peoples' mandate to condone or compound the common law crimes allegedly
committed by those who have been returned to power; in fact such interpretation of the mandate
would be contrary to all democratic canons. Success at hustings is no licence to sweep all dirt under
the carpet and enjoy its fruits nonchalantly. Moreover, the apprehension that public interest
including public order and peace would be adversely affected by the continuation of the prosecution
of common law crimes (which do not partake of any political character or are not committed in or
followed by any explosive situation involving emotive issue) against the head of the State is ill-
founded, of, all that can happen is that respondent 2 will have to step down and nothing more. Any
fear of destabilisation of the Government is entirely misplaced. On the other hand withdrawal from
the prosecution of such offences would interfere with the normal course of administration of
criminal justice and since respondent 2 is placed in a high position the same is bound to affect the
common man's faith in the rule of law and administration of justice. Besides, as I shall point out
later, if the proof of the offences said to have been committed by respondent 2 in conspiracy with
the other accused was based on documentary evidence, the genuineness of which is not in dispute,
no question of political and personal vendetta or unfair and overzealous investigation would arise.
In my view, in all the facts and circumstances grounds (b), (c) and (d) were not attracted to the
instant case and were irrelevant and extraneous to the issue of withdrawal and since these grounds
had influenced the executive function of the Public Prosecutor as well as the supervisory judicial
function of the trial court the performance of these functions is vitiated. The High Court has simply
put its seal on the trial court's order accepting these grounds. The impugned withdrawal as permitted
by the trial court and confirmed by the High Court insofar as it is based on these grounds would be
bad in law.

21. I shall now proceed to deal with ground (a) that was put forward for withdrawal from the
prosecution. In substance the ground was that there were no chances of successful prosecution in
view of paucity of evidence to prove the charges. As stated earlier when such is the ground it is the
duty of the court to examine the material to ascertain whether the ground was valid one or whether
the available material was sufficient to make out a prima facie case against the accused to put him
on trial? And I shall approach the problem strictly from this angle.

22. The facts giving rise to the launching of the aforesaid prosecution against respondents 2, 3 and 4
and three others may be stated : The Patna Urban Cooperative Bank was registered in May 1970 and
commenced its banking business with Nawal Kishore Sinha as its manager and A. K. Singh as a
Loan Clerk (who also worked as the caretaker and Personal Assistant to N. K. Sinha). A Loan Sub-
Committee consisting of N. K. Sinha the Chairman, K. P. Gupta the Secretary and one Shri
Purnendu Narain, an Advocate used to look after the sanctioning and granting of loans. Under its
bye-laws the Chairman was the ultimate authority in regard to all the functions of the Bank and
Honorary Secretary along with the Chairman had to exercise supervisory control over all the
activities of the Bank while the Manager was concerned with its day to day working Dr. Jagannath
Misra, then an M. L. C. and who subsequently became a Minister and the Chief Minister in the
Bihar Cabinet helped the bank and its Chairman (N. K. Sinha being his close associate and
confidant) in several ways including mobilisation of resources for the Bank. Separate audits into the
working of the Bank were conducted by the Reserved Bank of India as well as by the Cooperative
Department of the Bihar Government for the years 1972-73 and 1973-74 during the course of which
a large number of irregularities which as non-maintenance of cash books in a proper manner, grant
of overdraft facility without current account etc.), illegal practices, of defalcations and malversation
of funds of the Bank came to light; in particular the Audit Reports disclosed that huge amounts
running into lakhs of rupees had been squandered away by (a) giving to non-members, (b) giving
loans even without application, agreement or pronote, (c) giving loans without hypothecations, (d)
giving short-term loans instead of realising cash on sale proceeds even for hypothecated goods, (e)
giving loans to the same persons in different names and (f) giving loans to fictitious persons and
non-existing firms or industries etc. and the audit team of the Reserve Bank in its report came to the
conclusion that the Chairman Shri Nawal Kishore Sinha and others were responsible and
accountable for 'bad loans' to the tun of Rs. 12 lakhs and 'misappropriation and exbezzlement' to the
tune of Rs. 25 lakhs. On the basis of the__se audit reports at the instance of the Reserve Bank the
management of the Bank through its Board of Directors was superseded on July 10, 1974 under the
orders of the Registrar, Cooperative Societies, and Nawal Kishore Sinha the Chairman and other
Directors of the Board were removed and an officer of the Cooperative Department, Government of
Bihar, was appointed as the Special Officer to look after the affairs of the Bank. 23. On the strength
of the aforesaid Audit Reports the Registrar, Cooperative Societies, agreeing with the Joint
Registrar, put up a note dated November 4, 1974 to the Secretary, Cooperation saying that prima
facie charges of defalcations, conspiracy, etc. were made out against the officials of the Bank and
legal action be taken against them after taking the opinion of the Public Prosecutor; the Secretary by
his not dated November 7, 1974 sought the opinion of the Law Department : on November 18, 1974
the Law Department recorded its opinion in the relevant file (being File No. IX/Legal-95 of the
Department of Cooperation) that a case of conspiracy and criminal breach of trust against the
loanees and office-bearers of the Bank was prima facie made out. On December 16, 1974 a draft
complaint was prepared by the Assistant Public Prosecutor, Patna for being filed before the Chief
Judicial Magistrate Patna : on the same day (December 16, 1974) an office noting was made by Shri
Bimal on the file suggesting that the Law Department's advice on the draft complaint be obtained,
which course of action was approved by the Secretary, Cooperation on December 16, 1974, by the
Minister for Cooperation (Shri Umesh Prasad Verma) on January 1, 1975 and by the then Chief
Minister (Shri A. Gaffoor) on January 2, 1975. Accordingly, the file was sent to the Law
Department which reiterated its earlier advice for launching the prosecution and on the file being
received back on January 18, 1975, the Secretary, Cooperation endorsed the file on January 21,
1975 to A. P. P. Shri Girish Narain Sinha for necessary action i.e. to file the prosecution (vide the
several notings made in File No. IX/Legal-9/75 - relied upon by the respondents). In other words by
January 21, 1975 the stage was set for launching a criminal prosecution against the loanees and the
members of the Board of Directors of the Bank with Nawal Kishore Sinha as the principal accused
and a complaint petition in that behalf duty approved by the Law Department and signed by Shri
Jagdish Narain Verma. District Cooperative Officer, Patna on January 25, 1975 was also ready with
the A. P. P. for being filed in the Court. But before the A. P. P. could file the complaint, respondent 2
(Jagannath Misra, Agriculture and Irrigation minister) wrote a buff-sheet note dated January 24,
1975 asking the Secretary, Cooperation to send the concerned file along with Audit Reports to him
before the institution of the criminal case. Accordingly, after obtaining the approval of the then
Cooperative Minister and the then Chief Minister for sending the file to respondent 2, the Secretary
recalled the file and other paper from the A. P. P. on January 28, 1975 and on February 24, 1975 he
sent the file to the Law Minister en route the then Chief Minister. It may be stated that under the
Notification dated April 30, 1974 issued under Article 166 (3) of the Constitution read with Rule 5
of the Rules of Executive Business of the State of Bihar, the then Chief Minister Shri Abdul Gaffoor
was inter alia holding the portfolio of Law also but according to the affidavit of Shri Neelanand
Singh dated October 19, 1982 filed on behalf of respondent I before us Shri A. Gaffoor as per his
note dated August 29, 1974 addressed to the Chief Secretary and circulated to various departments
had, with a view to lessen his heavy burden, requested respondent 2 (Jagannath Misra) to look after
the work of the Law Department and as such endorsing the file on February 24, 1975 to the Law
Minister en route the Chief Minister' would mean that the file must have gone to respondent 2 as
there was no other person holding the Law portfolio excepting the Chief Minister himself under the
Notification dated April 30, 1974. It is claimed by the appellant that respondent 2 sat tight over the
file for over two and half months till he became the Chief Minister whereas it is suggested on behalf
of the respondents that though the file was called for by respondent 2 on January 24, 1975 it did not
actually reach him till middle of May 1975. However, ignoring the aforesaid controversy, the fact
remains that the filing of the complaint got postponed from January 24, 1975 (the date of buff-sheet
order of respondent 2) till middle of May 1975 and in the meantime on April 11, 1975 respondent 2
replaced Shri A. Gaffoor as the Chief Minister and in the middle of May 1975 as the Chief Minister
respondent 2 passed two orders which are very eloquent.

24. On May 16, 1975 in the File No. IX/Legal-9/75 respondent 2 out an order in his own hand in
Hindi concerning the action to be taken against Nawal Kishore Sinha and others, the English
rendering of which, according of which, according to the respondents, runs thus :

                  Much time has passed. On perusal of the File it appears that there is no allegation of
                  defalcation against the Chairman and the Members of the Board of the Bank of Bank.
                  Stern action should be taken for realisation of loans from the loanees and if there are
                  difficulties in realisation from the loanees surcharge proceedings should be initiated
                  against the Board of Directors. The normal condition be restored in the Bank after
                  calling the Annual General Meeting and holding the election.

                  # Sd/-May 16, 1975 Jagannath Misra##

In the margin opposite the above order the seal containing the despatch entry originally showed May
16, 1975 as the date on which the file was despatched from the Chief Minister's Secretariat to the
Cooperative Department after respondent 2 had made the above order. It is clear that the first part of
the above order regarding the criminal involvement is in teeth of the Audit Reports of the Reserve
Bank and the Cooperative Department and contrary to the opinion of the Law Department it
thwarted the criminal prosecution against Shri Nawal Kishore Sinha and others, while under the
latter part it still exposed them to civil liability by way of surcharge proceedings to be adopted
against them in default of realisations from the loanees but as even the loans had been advanced
mostly in fictitious names and were actually utilised by the office-bearers themselves the prospect of
civil liability loomed large before them. Realising this position respondent 2 irregularly - there
being no endorsement nor any seal showing inward receipt of the File by Chief Minister's
Secretariat - got hold of the File again and passed another order in his hand on a piece of paper in
Hindi under his signature but bearing an earlier date May 14, 1975 and had it pasted over the earlier
order dated May 16, 1975 in the File so as to efface the same completely, and the date of despatch
May 14, 1975 by overwriting; an English rendering of this second order, addressed to the Minister
for Cooperation, runs thus :
                  Please issue order for restoring the normal condition in the Bank after holding
                  Annual General Meeting.

                  # Sd/-May 14, 1975 Jagannath Misra##

It is undisputed that respondent 2 did pass the aforesaid two orders in his own hand in Hindi, the
first on May 16, 1975 and the second subsequently in point of time but antedated it to May 14, 1975
and had it pasted over the first order completely effacing that order. Such conduct on his part has
been explained only on the basis that as the Chief Minister he had the authority and power to revise
or review his earlier order and that it is the usual practice prevailing in the Patna Secretariat that
whenever any order passed earlier is sought to be revised or reviewed by the same officer or
minister it is done by pasting it over by a piece of paper containing the revised order (para 8 of the
counter-affidavit of Shri Bidhu Shekhar Banerjee dated March 17, 1982 filed on behalf of
respondent 1). Even with this explanation the admitted position that emerges is that the aforesaid
two orders were passed by respondent 2, that the second order was antedated to May 14, 1975 and
that the same was pasted on the file so as to efface completely the earlier order. In other words in
substance and reality the entire order passed by respondent 2 in the concerned file on May 16, 1975
which contained four directions : (a) there being no allegation of defalcation against the Chairman
[sic and] the Members of the Board no criminality was involved, (b) stern action for realisation of
the loans from the loanees be taken, (c) failing which surcharge proceedings against the Board of
Directors be initiated and (d) restoration of normal condition in the Bank be brought about by
calling Annual General Meeting and holding the election, was wiped out and completely substituted
by the second order which merely retained the last direction [item (d) above] of the first order. In
effect under the second order both the criminal as well as civil liability of Nawal Kishore Sinha and
others were given a go-bye, notwithstanding the Audit Reports of the Reserve Bank and the
Cooperative Department and respondent 2 merely directed that the normal condition in the Bank be
restored and this result was brought about by the second order which was antedated with the
obvious fraudulent intent of nullifying or rendering nugatory any action that could have been or
might have been taken (even if not actually taken) pursuant to the first order after the file had left
the Chief Minister's Secretariat on May 16, 1975, that being the most natural consequence flowing
from the act of antedating the second order. It is not necessary that the fraudulent intent should
materialise; it is enough if act of antedating is done with the fraudulent intent. This being a case of
interdepartmental orders, the first order dated May 16, 1975 passed by respondent 2 became
operative as soon as the concerned file left the Chief Minister's Secretariat and as such the same
could be revised or reviewed by respondent 2 by officially and regularly calling back the file and by
passing a fresh order subsequent in point of time modifying or cancelling the earlier order but surely
not by the crude method of pasting the subsequent order over the first so as to effect the same
completely and in no event by antedating it. It is true that mere antedating a document or an order
would not amount to an offence of forgery but if the document or the order is antedated with
oblique motive or fraudulent intent indicated above (without the same actually materialising) it will
be forgery.

25. The aforesaid undisputed documentary evidence comprising the Audit Reports, the relevant
notings in the concerned file and the two orders of respondent 2 clearly makes out a prima facie
case of the commission of two common law offences of criminal misconduct (Section 5 (1) (d) of
Prevention of Corruption Act) and forgery (Section 466, IPC) by respondent 2 without needing any
further material to establish the same. The ingredients of the former can be said to be prima facie
satisfied in that by passing the two orders respondent 2 by corrupt or illegal means or by otherwise
prosecution and surcharge proceedings against Nawal Kishore Sinha and others and had thereby at
any rate obtained for them pecuniary advantage to the detriment of the Bank, its members,
depositors and creditors. This is apart from the aspect as to whether while doing so he obtained
pecuniary advantage for himself or not, for which further material by way of confessional statement
of the approvers would be required to be considered or appreciated but ignoring such further
material the ingredients of Section 5 (1) (d) get satisfied prima facie as indicated above. As regards
the latter though respondent 2 had the authority and power to pass the second order in substitution
of the first, by antedating the second order with fraudulent intent the ingredients of forgery again
prima facie satisfied. In other words, the aforesaid material is clearly sufficient to put respondent 2
on trial for, if the said material remains unrebutted a conviction would clearly ensue.

26. It was strenuously contended by counsel for respondents, particularly by counsel for respondent
2 that if the aforesaid two orders passed by respondent 2 are properly understood it cannot be said
that the effect of either of these two orders was to thwart or to scuttle or to subvert the criminal
prosecution and surcharge proceedings against Nawal Kishore Sinha and others and that the effect
of the second order was certainly not to countermand the directions contained in the first order in
regard to items (b) and (c) above put in fact the effect was to facilitate recourse to surcharge
proceedings against the office bearers without the hurdle of being required to make the recovery of
loans from the loans first, which was the import of the first order dated May 16, 1975. It was further
contended that instead of shifting the criminal prosecution against Nawal Kishore Sinha and other
office-bearers respondent 2 at a subsequent stage had directed prosecution of office-bearers
including Nawal Kishore Sinha and actually the Cooperative Department had taken steps to adopt
surcharge proceeding even against Nawal Kishore Sinha by issuing show--cause notice in him, and
therefore the charges of criminal misconduct and forgery against respondent 2 in conspiracy with
others were clearly unsustainable and withdrawal from the prosecution sought by the Public
Prosecutor was proper and justified. In my view, however, as I shall presently indicate, the further
materials on record do not bear out or support these submissions of counsel for the respondents.

27. On the question as to whether the effect of either of the aforesaid two orders was to thwart,
scuttle or subvert criminal prosecution and surcharge proceedings or not and what was intended by
respondent 2 when he passed those orders would be clear from his further conduct evidenced by
subsequent notings and orders passed by him till he went out of power in 1977 and in this behalf it
would be desirable to delineate the course which the subsequent events took in regard to criminal
prosecution as well as surcharge proceedings separately. As regards criminal prosecution, it appears
that the Cooperative Department wanted to go ahead with it and in that behalf by his next noting
dated June 28, 1975 the then Minister for Cooperation sought directions from the Chief Minister as
to what should be the next course of action in the matter of filing the complaint and respondent 2 as
the Chief Minister passed the following order on the file on June 30, 1975 : "Discussion has been
held, there is no need to file the prosecution." This clearly shows what respondent 2 intended by his
aforesaid two orders in the matter of criminal prosecution and the direction clearly runs counter to
the suggestion that he did not thwart, scuttle or subvert the criminal prosecution against Nawal
Kishore Sinha and others. It further appears that in July 1975 there were questions and call attention
motions in the Bihar Legislative Assembly during the course of which the propriety of non-
prosecution of the culprits concerned in the Bank fraud, despite Law Department's advice, was
discussed, that the Speaker referred the matter to the Estimates Committee of the House, that in
June 1976 the Estimates Committee submitted its report recommending prosecution of Nawal
Kishore Sinha and others, that in July 1976 a debate took place in the Assembly on the
recommendations contained in the said report and the Government was forced to agree to launch
prosecutions against the culprits. In the wake of these events respondent 2 as the Chief Minister
passed an order on August 4, 1976 for launching criminal prosecution but even there he directed
that prosecutions be launched against some of the office-bearers and loanees of the Bank including
Shri K. P. Gupta, the Honorary Secretary, Shri. M. A. Haidari, the Manager and Shri A. K. Singh
the loan Clerk but not against Nawal Kishore Sinha who was excluded from being arranged as an
accused and accordingly 25 criminal cases were filed against the aforesaid office-bearers and
loanees. This order is another indication that even with all the furore which the Bank's affairs had
created, respondent 2 wanted to and did protect and save Shri Nawal Kishore Sinha from criminal
prosecution by excluding him from the array of accused persons. As regards the 23 criminal cases
filed against the other office-bearers and the loanees of the Bank there is on record in the
Cooperative Department File No. 12/Legal-31/77 a buff-sheet order dated February 2, 1977 passed
by respondent 2 to the following effect :

In order to recover the money from some of the loanees of the Patna Urban Co-operative Bank,
criminal cases were instituted against them. Action should be taken immediately for the withdrawal
of the cases against those loanees who have cleared the loan in full, and proper instalments for
payment of loans should be fixed against those who want to repay the loan but due to financial
handicaps are unable to make payment at a time, and thereafter necessary further action should be
taken.

It appears that pursuant to this order after verifying that loans from three parties (Plastic Fabricators,
Climax Plastic Udyog and K. K. Boolan) had been cleared the criminal cases against them were
directed to be withdrawn immediately. However, the protection given to Shri Nawal Kishore Sinha
against criminal prosecution continued to benefit him.

28. In the meanwhile in April 1976 the Banking Licence of the Patna Urban Cooperative Bank was
cancelled by the Reserve Bank of India and further at the instance of the Registrar, Cooperative
Societies, the Bank was ordered to be liquidated. It appears that Shri T. Nand Kumar, I. A. S.,
Liquidator of the Bank addressed a communication to the Registrar, Cooperative Societies
suggesting that besides the other office-bearers Shri Nawal Kishore Sinha, the ex-Chairman of the
Bank also deserved to the prosecuted for offences of embezzlement, forgery, cheating etc., but the
matter was kept pending for report of the Superintendent of Police (Cooperative Vigilance Cell) :
the S. P. (Cooperative Vigilance Cell) after collecting facts and evidence got it examined by Deputy
Secretary (Law) in C. I. D. obtained the opinion that a criminal case was fully made out against Shri
Nawal Kishore Sinha and proposed that a fresh criminal case as per draft F. I. R. be filed and that
Shri Nawal Kishore Sinha should also be made co-accused in a number of cases already under
investigation : the S. P. (Cooperative Vigilance Cell) obtained the approval of D. I. G., C. I. D. on
his said proposals and submitted the same to the Secretary, Cooperation, for obtaining Chief
Minister's permission. In view of the Chief Minister's earlier order restricting the filing of criminal
cases against some of the office-bearers and loanees only the s. P.'s noting categorically stated that
the draft F. I. R. (against N. K. Sinha) had been vetted by D. I. G., C. I. D. as well by I. G. of
Police. After examining the entire material carefully and obtaining clarification on certain points
Shri Binod Kumar, Secretary, Cooperation put up a lengthy note dated January 15, 1977 to the
Minister for Cooperation in which he specifically placed the proposal of S. P. (Cooperative
Vigilance Cell) for lodging F. I. R. against Shri Nawal Kishore Sinha for his approval and also
suggested that the Hon'ble Minister may obtain the approval of the Chief Minister. The Minister for
Cooperation in his turn endorsed the file on January 20, 1977 to the Chief Minister for the latter's
approval. The file was received by the Chief Minister's Secretariat on March 30, 1977 and
respondent 2 as the Chief Minister on April 9, 1977 instead of indicating his mind either way
merely marked the file to "I. G. of Police," which was meaningless as the prior notings had clearly
indicated that a draft F. I. R. had been vetted by both, D. I. G., C. I. D. and I. G. of Police. Counsel
for respondent 2 submitted that the endorsement made by the Chief Minister meant that he had
approved the action as proposed. It is impossible to accept the submission. Had the Chief Minister
merely put his signature or initials without saying anything it might have been possible to suggest
that he had approved the proposal, but to mark the file to "I. G. of Police" without saying "as
proposed" or something to that effect cannot mean that respondent 2 had approved the proposal. In
fact, with the knowledge that the I. G. of Police had approved and vetted the draft F. I. R. against N.
K. Sinha, merely marking the file to "I. G. of Police" amounted to putting off the matter. Meanwhile
respondent 2's Government went out of power and under the President's Rule the matter was dealt
with by the Governor Shri Jagan Nath Kaushal (the present Union Law Minister) who granted the
approval on May 16, 1977 as a result whereof a criminal case [being F. I. R. Case No. 97 (5) 77]
ultimately came to be filed at Kadam Kuan Police Station on may 30, 197 against Nawal Kishore
Sinha for which respondent 2 cannot take any credit whatsoever. On the other hand, the subsequent
events show that so long as it lay within his power respondent 2 made every effort to protect and
save Nawal Kishore Sinha from criminal prosecution by abusing his official position - a criminal
prosecution which had been proposed by independent bodies like the Reserve Bank of India and the
Cooperative Department, agreed to by the Law Department, recommended by the Estimates
Committee and ultimately approved by the Governor Shri Jagan Nath Kaushal.

29. As regards the surcharge proceedings the position is very simple. As discussed earlier, the two
directions contained in the first order dated May 16, 1975 for taking stern action to realise loans
from the loanees and in default to initiate surcharge proceedings against the Board of Directors,
were wiped out by the subsequent antedated order dated May 14, 1977, and thereby respondent 2
thwarted surcharge proceedings and attempted to give a go-bye to the civil liability of Nawal
Kishore Sinha and other office-bearers of the Bank. This conduct on the part of respondent 2 has
been explained in the counter affidavit of Shri Binod Kumar Sinha dated October 8, 1982 filed
before us, and counsel for respondent 2 pressed it into service during his arguments and the
explanation is that a separate file titled "Surcharge Proceedings" being File No. 3 of 1975
maintained in the office of Deputy Registrar, Cooperative Societies, Patna Division shows (a) that
by his letter dated April 30, 1975 the Deputy Registrar informed the Joint Registrar that discussions
had already been held with the Registrar and that surcharge proceedings would be initiated as soon
as possible, (b) that on June 10, 1975 the necessary proposal for surcharge was drafted and filed by
the District Cooperative Officer before the Registrar under Section 40 of the Bihar and Orissa
Cooperative Societies Act and (c) on July 1, 1975 Surcharge case No. 3 of 1975 had been started
against Nawal Kishore Sinha and others by directing issuance of show-cause notice to them and that
in view of these facts respondent 2 could not be said to have counter manded the surcharge
proceedings; it is further urged that the order dated May 16, 1975 directing surcharge proceedings
was, therefore, unnecessary and irrelevant as the proper authority, namely, the Registrar had already
decided to start surcharge proceedings which were started by issuance of show-cause notice to
Nawal Kishore Sinha and others on July 1, 1975 and, in fact, if the struck-out order dated May 16,
1975 had remained without being replaced by the order dated May 14, 1975 the surcharge
proceedings which were filed on June 10, 1975 would have been delayed and the effect of recalling
the first order dated May 16, 1975 (incidentally recalling of the first order by the second order is
admitted) was to facilitate the surcharge proceedings (which were being processed at that time in the
office of Deputy Registrar) without being required to adopt recovery proceedings from the loanees
first. Counsel for respondent 2 strenuously urged that instead of thwarting or stalling the surcharge
proceedings the subsequent order dated May 14, 1975 removed a hurdle. The explanation to say the
least is disingenuous for two or three reasons and cannot be accepted. First, admittedly - and this
was fairly conceded by counsel for respondent 2 - that there is no material on record to show that
File No. 3/75 pertaining to surcharge proceedings was sent to the Chief Minister (respondent 2) or
was seen by him prior to May 16, 1975; indeed it was never sent to him at all with the result that
respondent 2 had no knowledge of either the notings and orders contained therein or what was being
done in the office of the Deputy Registrar, Cooperative Societies, when he passed either of the two
orders dated May 16, 1975 and May 14, 1975 and the explanation, therefore, that respondent 2
facilitated the filing of the surcharge proceedings by the office of the Deputy Registrar, without the
necessity of proceeding against the loanees first, is not candid. Secondly, the proposal for surcharge
proceeding itself was submitted and filed by the District Cooperative Officer against Nawal Kishore
Sinha and others on June 10, 1975 and the surcharge proceedings actually could be said to have
been initiated on July 1, 1975 when show-cause notice was directed to be issued and served on
Nawal Kishore Sinha on July 15, 1975, while thwarting of the surcharge proceedings against Nawal
Kishore Sinha and others was already complete, having been accomplished by respondent 2 by his
antedated order dated May 14, 1975. Thirdly it is obvious that respondent 2 cannot take credit for
the action that was taken in the matter of surcharge proceedings against Nawal Kishore Sinha and
others by the office of Registrar, Cooperative Societies independently of and in spite of respondent
2's action of subverting the surcharge proceedings.

30. It will appear clear from the above discussion that the documentary evidence mentioned above,
the genuineness of which cannot be doubted, clearly makes out a prima facie case against
respondent 2 sufficient to put him on trial for the offence of criminal misconduct under Section 5
(1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947. Similar is the position
with regard to the incidental offence of forgery under Section 466, IPC said to have been committed
by him, for, antedating of the second order by him is not disputed; and it is on record that in regard
to such antedating no explanation was offered by him during the investigation when he was
questioned about it in the presence of his lawyers and there has been no explanation of any kind in
any of the counter affidavits filed before us. But during the course of arguments his counsel offered
the explanation that it could only be ascribed as a bona fide mistake on slip (vide written arguments
filed on October 14, 1982) but such explanation does not bear scrutiny, having regard to the
admitted fact that after the antedated order was pasted over the first order the despatch dated
appearing in the margin was required to be and has been altered to May 14, 1975 by overwriting and
if over writing is required to be done there cannot be any bona fide mistake or slip. The antedating
in the circumstances would be with oblique intent to nullify any possible action that could have or
might have been taken pursuant to the first order as stated earlier, that being the most natural
consequence flowing from it which he must in law be presumed to have intended. It would, of
course, be open to him to rebut the same at the trial but at the moment there is not material on
record - by way of rebuttal. In the circumstances it is impossible to accept the paucity of evidence or
lack of prospect of successful prosecution as a valid ground for withdrawal from the prosecution.
On the aforesaid undisputed documentary evidence no two views are possible in the absence of any
rebuttal material, which, of course, respondent 2 will have the opportunity to place before the court
at the trial. What is more the so-called unfair or overzealous investigators were miles away when the
aforesaid evidence came into existence.

31. As far as respondent 3 (Nawal Kishore Sinha) and respondent 4 (Jiwanand Jha) are concerned it
cannot be forgotten that they have been arraigned along with respondent 2 on a charge of criminal
conspiracy in pursuance whereof the several offences are said to have been committed by all of
them. Further it is obvious that the principal beneficiary of the offence of criminal misconduct said
to have been committed by respondent 2 under Section 5 (1) (d) read with Section 5 (2) of
Prevention of corruption Act, 1947 has been respondent 3 and so far as respondent 4 is concerned it
cannot be said that there is no material on record suggesting his complicity. Admittedly, he has been
very close to respondent 2 for several years and attending to his affairs - private and party affairs
and the allegation against him in the F. I. R. is that he was concerned with the deposit of two
amounts of Rs. 10,000 and Rs. 3000 on December 27, 1973 and April 1, 1974 on the savings bank
account of respondent 2 with the Central Bank of India, Patna Bungalow Branch, which sums, says
the prosecution, represented some of the bribe amounts said to have been received by respondent 2
and the tangible documentary evidence in proof of the two deposits having been made in respondent
2's account consists of two pay-in slips of the concerned branch of Central Bank of India. Whether
the two amounts came from the funds of the Patna Urban Cooperative Bank or not and whether they
were really paid as bribe amounts or not would be aspects that will have to be considered at the trial.
However, as pointed out earlier the offence under Section 5 (1) (d) would even otherwise be
complete if pecuniary advantage (by way of scuttling the civil liability of surcharge) was conferred
on Nawal Kishore Sinha and others. If respondent 2 has to face the trial then in a case where
conspiracy has been charged no withdrawal can be permitted against respondent 3 and respondent 4.
In arriving at the conclusion that pancity of evidence is not a valid ground for withdrawal from the
prosecution in regard to respondents 2, 3 and 4, I have deliberately excluded from consideration the
debatable evidence like confessional statements of the approvers etc. (credibility and effect whereof
would be for the trial court to decide) said to have been collected by the allegedly overzealous
investigating officers after respondent 2 went out of power in 1977.

32. There is yet another legal infirmity attaching to the executive function of the Public Prosecutor
as well as the supervisory judicial function of the trial court which would vitiate the final order. As
per the charge-sheet filed against them respondents 2, 3 and 4 were said to have committed offences
under Sections 420/466/417/109/120-B. IPC and under Section 5 (1) (a), (b) and 5 (1) (d) read with
Section 5 (2) of the Prevention of Corruption Act, 1947 and gravamen of the charge against
respondent 2 was that in his capacity either as a Minister or the Chief Minister of Bihar by corrupt
or illegal means or by otherwise abusing his position as a public servant he, in conspiracy with the
other accused and with a view to protect Nawal Kishore Sinha in particular, sought to subvert
criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others and either
obtained for himself or conferred on them pecuniary advantage to the detriment of Patna
Cooperative Bank, its Members, depositors and creditors; in other words, the principal charge
against respondent 2 was in respect of the offence of criminal misconduct under Section 5 (1) (d)
read with Section 5 (2) of Prevention of Corruption Act, 1947 and the offence under Section 5 (1)
(c) was nowhere mentioned or referred to. The difference between section 5 (1) (d) (bribery
amounting to criminal misconduct) and Section 5 (1) (c) (beach of trust amounting to criminal
misconduct) is substantial each having different ingredients but in the application for withdrawal
filed by Shri Lalan Prasad Sinha on June 17, 1981 he stated that withdrawal from the prosecution in
Vigilance Case No. 9 (2) 78 was sought in respect of several offences including the offence of
criminal misconduct under Section 5 (1) (c) read with Section 5 (2) of the Prevention of Corruption
Act and throughout the application there was no reference to the offence of criminal misconduct
under Section 5 (1) (d) read with Section 5 (2) of the said Act. In other words, an offence under
Section 5 (1) (c) read with Section 5 (2) with which respondent 2 had never been charged was
mentioned and the offence under Section 5 (1) (d) each with Section 5 (2) with which he was
principally charged was completely omitted. Obviously submission contained in the application as
well as those that were made at the hearing before the court were in relation to the offence of
Section 5 (1) (c) and not Section 5 (1) (d). Similarly the learned Special Judge while granting the
requisite permission has also referred to the offence under Section 5 (1) (c) and not Section 5 (1) (d)
of the Prevention of Corruption Act in his order and obviously the permission granted must be
regarded as having been given in respect of an offence with which respondent 2 had not been
charged, completely ignoring the offence under Section 5 (1) (d) with which he had mainly been
charged. This state of affairs brings out a clear and glaring non-application of mind both on the part
of the Public Prosecutor as also the learned Special Judge while dealing with the issue of withdrawal
: in the High Court also there is no improvement in the situation. This must lead to the quashing of
the impugned withdrawal from the prosecution.

33. Having regard to the aforesaid discussion it is clear that the impugned withdrawal was not
justified either on merits or in law and being illegal has to be quashed. I would, therefore, allow the
appeal set aside the withdrawal order and direct that Vigilance P. S. Case No. 9 (2) 78 be proceeded
with and disposed of in accordance with law.

BAHARUL ISLAM, J.

This is an appeal by special leave by Shri Sheonandan Paswan, who intervened in an application
under Section 321 of the Code of Criminal Procedure, 1973 (hereinafter "the Code") pending before
the Chief Judicial Magistrate-cum-Special Judge, Patna. The material background facts may be
narrated thus :

35. The appellants is a Member of the Bihar Legislative Assembly and belongs to the Lok Dal party.
Respondent 2, Dr. Jagannath Misra, is currently the Chief Minister of Bihar; and respondent 4, Shri
Jiwanand Jha at the relevant time was a close associate of respondent 2. Respondent 3, Shri Nawal
Kishore Sinha, who started the Patna Urban Cooperative Bank (hereinafter 'the Bank') and became
its Chairman, had a colleague of respondent 2 in the Legislative Council of Bihar. In 1972,
respondent 2 became Minister for Cooperation and Agriculture. On June 18, 1974, the Sub-
Divisional Cooperative Audit Officer, Patna submitted his Audit Report of the Bank in respect of
the year 1972-73 alleging a number of irregularities in the affairs of the Bank. The report was
submitted to the Cooperative Department whereupon the Joint Registrar, Cooperative, Audit
Department, recommend legal action against the Directors of the Bank. The Legal Assistant of the
Department submitted a draft prosecution report prepared by the Public Prosecutor with a
suggestion that the Registrar of the Cooperative Department should obtain the opinion of the Law
Department on the draft prosecution report. The Registrar agreed to send the draft prosecution
report to the Law Department but expressed desire that the minister in charge of the Cooperative
Department should see the report. Accordingly the file was endorsed to the Minister in charge of the
Cooperative Department. The then Chief Minister, Shri Abdul Gaffoor, signed it by way of
agreement with the Registrar to obtain the advice of the Law Department and approved the First
Information Report (FIR). The Secretary of the Cooperative Department then requested the Public
Prosecutor to amend the draft FIR which was sent to the Law Department for opinion. The Law
Department returned the file to the Cooperative Department stating that it had already given its
opinion and that it was not its duty to file complaint. The file was then endorsed to the Additional
Public Prosecutor for necessary action. Respondent 2 who was the Minister in charge of Irrigation
and Agriculture also wanted to see the file along with the operation Minister endorsed the file to the
Chief Minister, Shri Gaffoor, with his comments that the file might be sent to the Irrigation
Minister. The Secretary, Cooperative, requested the Additional Public Prosecutor to release the file,
with the endorsement, "filling of complaint may await further instruction". The Additional Public
Prosecutor sent the file to the Secretary, Cooperative, through a Special messenger with a request to
return the file after perusal by the Chief Minister (Shri Gaffoor). The Secretary, Cooperative
Department, sent the file to the Minister of Cooperation with his remarks, inter alia.

                  Para 4 : Law Department have tendered their advice at page 13/N that criminal case
                  made out against the Secretary and other Directors of the bank should be filed.

                  Para 5 : Chief Minister and Minister (Law) have desired to see the file before
                  complaints are actually lodged.

As a result the file was recalled from the Additional Public Prosecutor.

36. The above movement of the file was between January 1975 to February 24, 1975.

37. On April 11, 1975, there was a change in the Ministry of Bihar, Chief Minister, Abdul Gaffoor,
was replaced by respondent 2 as Chief Minister and one Dr. Jawar Hussain became the Minister of
Cooperation. On May 16, 1975, the aforesaid file was put up before the Chief Minister who ordered
for taking strict steps for realisation of the loans, failing that for starting surcharge proceedings, and
to restore normal conditions in the Bank after convening annual general meeting and holding
election.

38. Subsequently, the said order was covered by pasting a piece of paper containing a fresh order to
which we shall refer later. On June 28, 1975 the Minister of Cooperation wrote to the Chief Minister
that the buff-sheet of correspondence showed that the former Chief Minister (Shri Gaffoor)
postponed the filing of the complaint and wanted to see the file : and as the former Chief Minister
had passed the said orders, it was for the new Chief Minister to indicate the next course of action in
the case. Respondent 2 wrote on the file that discussions had been held and that there was no need to
file any case. On August 4, 1976, the Chief Minister ordered for the prosecution of the office-
bearers and loanees of the bank including its Honorary Secretary, Shri K. P. Gupta, Manager, Shri
M. A. Haidari (hereinafter 'Haidari') and the Loan Clerk.

39. There was a mid-term poll to the Lok Sabha in March 1977. In that poll, the Congress (I)
Government at the Centre was voted out of power and the Janata Government was installed with
Shri Morarji Desai as the Prime Minister and Chaudhury Charan Singh as the Home Minister. In
April following, the Patna Secretariat Non-gazetted Employee's Association submitted a 25-point
representation against respondent 2 to the Prima Minister and Home Minister of the Union
Government apprising them of the irregularities of the Bank. In June following, the Congress (I),
Government of Bihar headed by respondent 2 replaced by the Janata Government headed by Shri
Karpoori Thakur. The said Employee's Association on July 9, 1977 submitted a copy of the
representation to the new Chief Minister, Shri Karpoori Thakur with a request for making an
enquiry into the allegations by an Enquiry Commission. The representation was endorsed by the
State Government to the Inspector-General (Vigilance for a preliminary probe. Eventually the
preliminary enquiry was entrusted to the then Joint Secretary, Shri D. N. Sahay.

40. The Union Home Minister, Chaudhury Singh, wrote a D. O. letter to the Chief Minister of
Bihar, Shri Karpoori Thakur, saying that as per Code of Conduct, 1964, the Prime Minister had to
look into a complaint against a Chief Minister or an ex-Chief Minister and obtain comments of the
Chief Minister in the first instance and then decide the course of action. On July 25, 1977, Joint
Secretary, Shri D. N. Sahay submitted his preliminary report and recommend that the Home
Minister of the Government of India should be informed of the proposed course of action and
suggested that before ordering detailed enquiry, it was essential to take concurrence of the Union
Home Minister. The Chief Minister, however, on August 23, 19977, discussed the matter with the
Chief Secretary 'at 20.08 hours' and ordered full enquiry without the consent of, or intimation to the
Union Home Ministry.
41. On September 1, 1977, Joint Secretary, Shri D. N. Sahay, wrote to the Special Secretary
regarding the charge No. 8 that related to the Bank that as a Commission of Enquiry had already
been instituted, he doubted the desirability of a vigilance enquiry. The Chief Minister, Shri Karpoori
Thakur, opined that the materials collected by the Vigilance Department would be used by the
Commission. On September 20, 1977, the Joint Secretary, Shri D. N. Sahay, again referred to the
Conduct rules of 1964 for Ministers and Chief Ministers and suggested that necessary notes by
Chief Minister should be sent to the Union Home Minister for necessary orders for enquiry. Then on
October 17, 1977, Chief Minister, Shri Karpoori Thakur, who had written a D. O. letter to the Home
Minister, Chaudhury Charan Singh, regarding the allegations with regard to the Bank again
suggested that although a Commission of Enquiry had been appointed, the vigilance enquiry might
continue, as the materials collected by vigilance might be used by the Commission.

42. In October 1977, Shri S. B. Sahay was posted as D. I. G. (Vigilance) by the Chief Minister, Shri
Karpoori Thakur. On November 7, 1977, Shri S. B. Sahay ordered for enquiry on all points without
obtaining consent of the Union Home Ministry and without waiting for further orders.

43. In November 1977, one Shri D. P. Ojha was posted as S. P., Vigilance by the Chief Minister,
Shri Thakur, and the enquiry was endorsed to the Shri Ojha.

44. It has been alleged by the respondents that in January 1978, some Inspectors of the C. I. D. like
Raghubir Singh Sharda Prasad Singh, Ram Dahim Sharma and others were transferred to Vigilance
Department and they were responsible for the investigation of the major portions of the case in
question and that all the criminal cases investigated by D. S. Ps. (C. I. D.), Bihar, relating to the
Bank were transferred to Vigilance Department and placed under the charge of the Inspector, Shri
Raghubir Singh. Haidari, aforesaid, who had been an accused of Kadam Kuan P. S. case and
arrested and who had made a confessional statement was rearrested by the investigating officer, Shri
Raghubir Singh on January 22, 1978. Haidari made a second confession implicating respondent 2
for the first time. On January 26, 1978, A. K. Sinha who was also rearrested made a confession. On
January 28, 1978, D. P. Ojha aforesaid, submitted his enquiry report recommending institution of
criminal cases against respondent 2 and others. Similar recommendations were also made by Shri S.
B. Sahay, aforesaid and also by the I. G. Vigilance. The file was then referred to the Advocate
General Shri K. D. Chatterjee appointed by the Karpoori Thakur Government. On January 31, 1978,
the Chief Minister. Shri Thakur approved it with the direction to hand over the file to Shri S. B.
Sahay, who in turn, endorsed it to Shri D. P. Ojha for investigation and institution of the case. On
February 1, 1978, Shri Ojha directed Shri R. P. Singh. Additional S. P. to institute a case. After
having obtained sanction of the Governor a criminal case was instituted on February 1, 1978 by the
Vigilance Police and on February 19, 1979 a charge-sheet was submitted against the respondents
and others.

45. On February 26, 1979, one Shri Awadhesh Kumar Datta (hereinafter A. K. Datta), a Senior
Advocate of the Patna High Court was appointed Special Public Prosecutor by the Karpoori Thakur
Government to conduct the two vigilance cases against respondent 2.

46. On November 21, 1979, the Chief Judicial Magistrate-cum-Special Judge, Patna took
cognizance of the case.

47. Shortly thereafter there was a change of Government in that and respondent 2 became the Chief
Minister again. On June 10, 1980, the State Government took a policy decision that criminal cases
launched "out of political vendetta" in 1978-79 and cases relating to political agitation be
withdrawn.

48. On February 24, 1981, the Government appointed one Shri Lalan Prasad Sinha (hereinafter 'L.
P. Sinha') as Special Public Prosecutor along with three others vide Letter No. C. /Mis-8-43 J dated
February 24, 1991.

49. On the following day (February 25, 1981), the Secretary to the Government of Bihar wrote a
letter to the District Magistrate informing him about the policy decision of the Government to
withdraw from prosecution of two vigilance cases including the case in hand, namely. Vigilance P.
S. Case No. 9 (2) 78. The letter is at page 85 of Volume 1 of the Paper-book and reads thus :

                  # Letter No. MW 26-81. J. Government of Bihar, Law (Justice) DepartmentFromShri
                  Ambika Prasad Sinha.Secretary to Government, PatnaToThe District
                  Magistrate,Patna Patna, dated February 25, 1981Subject : The withdrawal of
                  Vigilance P. S. Case No. 9 (2) 78 and Case No. 53 (8) 78 in connection withSir,##

I am directed to say that the State Government have decided to withdraw from prosecution the
above-mentioned two criminal case on the grounds of inexpediency of prosecution for reasons of
Sate and public policy.

You are, therefore, requested to direct the Public Prosecutor to pray the Court after himself
considering for the withdrawal of the above-mentioned two cases for the above reasons under
Section 321 of the Code of Criminal Procedure.

Please acknowledge receipt of the letter and also intimate this Department about the result of the
action taken.

                  # Yours faithfully, Sd/- Secretary to Government, Bihar, PatnaMemo No. MW 26/81,
                  1056 J.Patna, dated February 25, 1981 Copy forwarded to Vigilance Department for
                  information. Sd/- Secretary to Government, Bihar, Patna##

50. Accordingly, on June 16, 1981, Shri L. P. Sinha filed an application under Section 321 of the
Code.

51. On June 20, 1981, the Special Judge passed the impugned order giving his consent to withdraw
the case.

52. It may be noted at this stage that before the impugned order was passed, the appellant filed an
appellant under Section 302 of the Code and the leaned Judge held that the appellant had no locus
standi in the matter. The appellant then filed a criminal revision before the High Court and the High
Court after bearing the appellant by its order dated September 14, 1981, rejected the revision
petition and affirmed the order of withdrawal passed by the Special Judge.

53. Hence this appeal by special have against the order of the High Court in the criminal revision.

54. Shri Venugopal, learned counsel appearing for the appellant formulated three points before us :

                  (1) That the permission accorded by the Special Judge to withdraw the case in
                  question was contrary to a series of decision of this Court and is unsustainable.
                  (2) That Shri L. P. Sinha who had made the application under Section 321 of the
                  Criminal Procedure Code was not the Public Prosecutor in charge of the case.

                  (3) That in the facts and circumstances of the case, Shri L. P. Sinha could not and did
                  not function independently.

55. Shri Parasaran learned Solicitor-General, appearing for respondent 1. the State of Bihar, on the
other hand submitted.

                  (1) that the institution of the case was the result of political vendetta and the vendetta
                  had vitiated the investigation of the case;

                  (2) that Shri L. P. Sinha was the Public Prosecutor in charge of the case and was
                  competent to make the application under section 321 of the Code and that his
                  appointment cannot be collaterally challenged; and

                  (3) that the impugned order of the Special Judge was legally valid.

56. The first point for decision is whether Shri L. P. Sinha was the Public Prosecutor in charge of
the case as required by Section 321 of the Code. Section 321 of the Code reads (material portion
only) :

                  321. Withdrawal from prosecution.-The Public Prosecutor or Assistant Public
                  Prosecutor in charge of a case may, with the consent of the Court, at any time before
                  the judgment is pronounced, withdraw from the prosecution of any person either
                  generally or in respect of any one or more of the offences for which he is tried; and,
                  upon such withdrawal, -

                  (a) if it is made before a charge has been framed, the accused shall be discharged in
                  respect of such offence or offences;

                  (b) if it is made after a charge has been framed, or when under this Code no charge is
                  required, he shall be acquitted in respect of such offence or offences :

                  # * * *##

57. Three of the essential requirements of Section 321 are :

                  (1) that a Public Prosecutor or Assistant Public Prosecutor the only competent person
                  to withdraw from the prosecution of a person;

                  (2) that he must be in charge of the case;

                  (3) that the withdrawal is permissible only wit the consent of the court (before which
                  the case is pending).

58. As stated above, Shri A. K. Datta was appointed Special Public Prosecutor for conducting the
case in question vide order under Letter No. C/Special/04/79 which reads thus (material portion
only) :
                  # Letter No. C/Special/04/79 Government of Bihar, Law (Justice) DepartmentFrom
                  Shri Yogeshwar Gope, Under-Secretary to the Government of Bihar.To Shri R. N.
                  Sinha District, Magistrate, Patna Patna, dated February 26, 1979Subject :
                  Appointment for conducting Vigilance P. s. Case No. 9 (2) 78 and 53 (8) 78 State
                  versus Dr. Jagannath Misra, ex-Chief Minister and others##

Sir,

I am directed to say that the State Government have been pleased to appoint Shri Awadhesh Kumar
Datta, Senior Advocate, Patna High Court, as Special Public Prosecutor for conducting Vigilance P.
S. Cases Nos. 9 (2) 78 and 53 (8) 78 in which Dr. Jagannath Misra, ex-Chief Minister is the main
accused.

2. The order for appointing Junior Advocates for assisting Shri Datta will be issued later.

# Yours faithfully,

Sd/- (Yogeshwar Gope)Memo No. 1313, J.Patna, dated February 26, 1979##

Copy forwarded to Shri Awadhesh Kumar Datta, Senior Advocate, Patna High Court/Cabinet
(Vigilance) Department, Government of Bihar, Patna for information and necessary action.

Yours faithfully,

# Sd/- (Yogeshwar Gope)Under-Secretary to Government of Bihar##

59. Later on, in pursuance of para 2 of the said Letters No. C/Special/04/79 dated February 26,
1979, by letter No. C/Misc.-8-43/78 J dated February 24, 1981, the Government constituted a panel
of lawyers to conduct vigilance cases. This letter reads (material portion only);

                  # Letter No. C/Misc.-8-43/78 J. Government of Bihar, Law (Justice)
                  DepartmentFrom Shri Ambika Prasad Sinha Secretary to Government, BiharTo The
                  District Magistrate, Patna Patna, dated February 24, 1981Subject : Constitution of
                  the panel of lawyers of conducting cases pertaining to Vigilance Department.Sir,##

I am directed to say that for conducting cases pertaining to Vigilance Department, the State
Government, by cancelling the panel of lawyers constituted under Law (Justice) Department Letters
No. 5240 J, dated August 19, 1978 have been pleased to constitute a panel of the following four
lawyers in place of the previous panel.

                  (1) Sri Ramjatan Singh, Advocate, Salimpur Ahra, Patna-3.

                  (2) Sri Bindeshwari Prasad Singh, Advocate, Lalji Tola, Patna-1.

                  (3) Sri Kamla Kanta Prasad, Advocate, Road No. 2D, Rajendra Nagar, Patna-16.

                  (4) Sri Lalan Prasad Sinha, Advocate, Sarda Sadan, Saidpur, Nala Road, Patna-4.

                  #2. * * *##

                  3. This order shall be effective with immediate effect.
                  #4. * * * Yours faithfully, Sd/- Secretary to Government, BiharMemo No. 1043
                  JPatna, dated February 24, 1981##

Copy forwarded to Sri Ramjatan Singh, Advocate, Salimpur Ahra, Patna-3, Sri Bindeshwari Prasad
Singh, Advocate, Lalji Tola, Patna-1, Sri Kamla Kant Prasad, Advocate, Road No. 2D, Rajendra
Nagar, Patna-16, Sri Lalan Prasad Sinha, Advocate, Sarda Sadan, Saidpur, Nala Road, Patna-4 for
information and necessary action.

                  2. Cabinet (Vigilance) Department is requested to inform the lawyers of the old panel
                  about this order.

                  # Sd/- Secretary to Government, Bihar##

60. It is evident from the last quoted letter that Shri L. P. Sinha was appointed a Public Prosecutor.

61. The State Government may appoint a Special Public Prosecutor under sub-section (8) of Section
24 of the Code for the purpose of any case or classes of cases. Public Prosecutor has been defined
under clause (ii) of Section 2 of the Code as :

                  "Public Prosecutor" means any person appointed under Section 24, and includes any
                  person acting under the directions of a Public prosecutor.

62. In the case of State of Punjab v. Surjit Singh, a Bench of five Judges of this Court considered
the provisions of Sections 492 to 495 of the old Code dealing with the appointment of Public
prosecutor. The Court observed :

                  Public Prosecutors are appointed by the State Government under Section 492 (1), or
                  by the District Magistrate or the Sub-Divisional Magistrate, under sub-section (2) of
                  Section 492. The appointment, under sub-section (1) of Section 492, can be a general
                  appointment, or for a particular case, or for any specified class of cases, in any local
                  area. Under this provision, more than one officer can be appointed as Public
                  Prosecutors by the State Government. Under sub-section (2), the appointment of the
                  Public Prosecutor is only for the purpose of a single case. There is no question of a
                  general appointment of the Public Prosecutor, under sub-section (2). Therefore it will
                  be seen, that a Public Prosecutor or Public Prosecutors, appointed either generally, or
                  for any case, or for any specified classes of cases, under sub-section (1), and a Public
                  Prosecutor appointed specifically for a single case, under sub-section (2), are all
                  Public Prosecutors, under the Code.

There cannot be any doubt, therefore, tat Shri L. P. Sinha was a Public Prosecutor validly appointed
under sub-section (8) of Section 24 of the Code.

63. But what was submitted by the appellant was that Shri L. P. Sinha could not be appointed a
Public Prosecutor without the appointment of Shri A. K. Datta, having been terminated first. It was
not the contention of the appellant that the appointment of Shri L. P. Sinha was otherwise invalid.

64. The answer to this contention is this. Shri A. K. Datta had at no point of time come forward to
make any grievance at any stage of the case, either at the appointment of Shri L. P. Sinha as Special
Public Prosecutor or in the latter's conduct of the case; nor Shri L. P. Sinha whose appointment and
right to make an application under Section 321 of the Code have been challenged, is before us. His
appointment cannot be collaterally challenged, particularly in an application under Article 136 of
the Constitution.

65. The appointment of Shri L. P. Sinha without the termination of the appointment of Shri A. K.
Datta, might at best be irregular or improper, but cannot be said to be legally invalid. The doctrine
of de facto jurisdiction which has been recognised in India will operate in this case. In the case of
Gokaraju Rangaraju v. State of A. P. so which one of us (Baharul Islam, J.) was a party it has been
held : (SCC para 4, P. 136 : SCC (Cri) p. 656].

                  The doctrine is now well established that "the acts of the officers de facto performed
                  by them within the scope of their assumed official authority in the interest of the
                  public or third persons and not for their own benefit, are generally as valid and
                  binding, as if they were the acts of officers de jure."

66. The judgment referred, with approval to the following observations made in the case of Norton
v. Shelby County decided by the United States Supreme Court :

Where an office exists under the law, it matters not how the appointment of the incumbent is made,
so far as the validity of insignia of the office, and exercises its powers and function .... The official
acts of such persons are recognised as valid on grounds of public policy, for the protection of those
having official business to transact.

67. This Court in Gokaraju Rangaraju v. State of A. P. also quoted with approval the following
passage from Cooley's Constitutional Limitations, 8th Edn., Vol. 2 p. 1355.

An intruder is one who attempts to perform the duties of an office without authority of law, and
without the support of public acquiescence.

No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes
they are absolutely void. But for the sake of the order and regularity, and to prevent confusion in the
conduct of public business and in security of private rights, the acts of officers de facto are not
suffered to be questioned because of the want of legal authority except by some direct proceeding
instituted for the purpose by the State or by some one claiming the office de jure, or except when
the person himself attempts to build up some right, or claim some privilege or emolument, by
reason of being the officer de facto are as valid and effectual, while he is supposed to retain the
office, as though he were an officer by right, and the same legal consequences will flow from them
for the protection of the public and of third parties. There is an important principle, which finds
concise expression in the legal maxim that the acts of officers de facto cannot be questioned
collaterally.

68. The next question is whether Shri L. P. Sinha was in charge of the case as required by Section
321 of the Code. Shri L. P. Sinha was entrusted with, and put in charge of, the case in question,
namely, Vigilance Case No. 9 (2) 78, vide Letter No. 1829 dated February 25, 1981. The relevant
portion of the letter read :

                  # Letter No. 1829 Bihar Government, Cabinet (Vigilance) Department.From Shri
                  Shivaji Sinha, Special Secretary to GovernmentTo Shri Lalan Prasad Sinha,
                  Advocate, Sharda Sadan, Sendpur, Nala road, Patna Patna, dated February 25,
                  1981Subject : Panei of Advocates for cases pertaining to Vigilance Department.##
Sir,

You have also been appointed as Panel Lawyer relating to the above subject vide letter No. 1943
dated February 24, 1981 of the Law Department. In many cases, charge-sheets have been submitted
in the Court of Chief Judicial Magistrate-cum-Special Judge. Out of these cases the following cases
are allotted to you to work for the prosecution :

1. Vigilance P. S. Case No. 9 (2) 78

#2. * * *3. * * *4. * * *5. * * *##

Please take necessary action for the prosecution in the cases on being acquainted with the present
position from the court.

# Yours faithfully

Sd/- (Shivaji Sinha) February 25, 1981 Special Secretary to Government##

69. Shri L. P. Sinha had been appointed a government counsel on February 24, 1981 to conduct
vigilance cases as stated above, the application for withdrawal was made by him on June 17, 1981 -
more than four months later. After having been appointed Public Prosecutor, and having been put in
charge of the Vigilance P. S. Case No. 9 (2) 78, he appeared in the case on seven dates, namely,
April 6, 1981, April 21, 1981, April 27, 1981, May 26, 1981, June 3, 1981, June 19, 1981 and June
20, 1981. It has been stated in the affidavit filed by the Secretary, Law Department of the State of
Bihar that the order disclosed that "no one else appeared for the prosecution except Shri L. P. Sinha.
There is nothing on record to show whether in fact Shri A. K. Datta did at all accept the
appointment as a Public Prosecutor. The record does not show that he took any steps at all in the
case. Shri L. P. Sinha could not have appeared on seven different dates during the course of 31/2
months and taken steps in its had he (A. K. Datta) been in charge of the case. The learned Special
Judge also has found as a fact in his judgment that the application under Section 321 of the Code
was made "by Shri Lalan Prasad Sinha, Special Public Prosecutor, in charge of this case". There is,
therefore, absolutely no doubt that at the relevant time Shri L. P. Sinha was in charge of the case,
and not Shri A. K. Datta, as submitted by the appellant. Shri L. P. Sinha was both de jure and de
facto Public Prosecutor in the case.

70. It was factually wrong that Shri L. P. Sinha was appointed only to withdraw the case, as
submitted by appellant's counsel. Even if he were, there was nothing illegal in it. If Shri L. P. Sinha
fulfilled the two conditions as required by Section 321 of the Code, namely, that (i) he was a Public
Prosecutor, and (ii) was in charge of the case, he was competent to apply for withdrawal of the case,
even if he were appointed for that purpose only.

71. The next question for decision is whether Shri L. P. Sinha functioned independently. The
appellant's submission is that Shri L. P. Sinha acted as directed by the Government to make the
application for withdrawal and himself did not apply his mind.

72. Section 321 of the Code enables the Public prosecutor or Assistant Public prosecutor in charge
of a case to withdraw from the prosecution with the consent of the court. The appellant submits, in
our opinion correctly, that before an application is made under Section 321 of the Code, the Public
prosecutor has to apply his mind to the facts of the case independently without being subject to any
outside influence; and secondly, that the court before which the case is pending cannot give its
consent to withdraw without itself applying its mind to the facts of the case. But is cannot be that a
Public Prosecutor's action will be illegal if he receives any communication or instruction from the
Government.

73. Let us consider the point from the practical point of view. Unlike the Judge, the Public
Prosecutor is not an absolutely independent officer. He is an appointee of the Government, Central
or State (see Section 24 and 25, CrPC), appointed for conducting in court any prosecution or other
proceedings an behalf of the Government concerned. So there is the relationship of counsel and
client between the Public Prosecutor and the Government. A Public Prosecutor cannot act without
instruction of the Government; a Public Prosecutor cannot conduct a case absolutely on his own, or
contrary to the instruction of his client, namely the Government. Take an extreme hypothetical case,
in which Government is the prosecutor, and in which there is a prima facie case against an accused,
but the Government feels on the ground of public policy, or on the ground of social harmony, or on
the ground of inexpediency of prosecution for reasons of State, the case should not bee proceeded
with; the Government will be justified to express its desire to withdraw from the prosecution and
instruct the Public Prosecutor to take necessary legal steps to withdraw from the prosecution.
Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any instruction
from the Government before he files an application under that section. If the Public Prosecutor
receives such instruction, he cannot be said to act under extraneous influence. On the contrary, the
Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction
from the Government.

74. Now in the above hypothetical case, if the Government gives instruction to a Public Prosecutor
to withdraw from the prosecution of a case, the latter has the following course open to him :

                  (i) He can blindly file the petition without applying his mind to the facts of the case.
                  This is not contemplated by Section 321 of the Code;

                  (ii) He may, himself, apply his mind to the facts of the case, and may agree with the
                  instructions of the Government and file the petition stating the grounds of
                  withdrawal. This is what is contemplated by the section and has been done in this
                  case; or

                  (iii) He may tell the Government, "It is a good case for the prosecution; conviction is
                  almost sure; and I do not agree with you that the case should be withdrawn, I am not
                  going to file a petition for withdrawal". In that event, the Public Prosecutor will have
                  to return the brief and perhaps to resign. For, it is the Government, not the Public
                  Prosecutor, who is in the know of larger interest of the State.

75. Let us now see if Shri L. P. Sinha applied his mind to the facts of the case before he made the
application. He made the following application before the court :

                  # IN THE COURT OF THE CHIEF JUDICIAL. MAGISTRATE, PATNA
                  Withdrawal Case No. of 1981##

in Vigilance P. S. Case No. 9 (2) 78

The humble petition on behalf of the Public Prosecutor for withdrawal of the Vigilance P. S. Case
No. 9 (2) 78 under Section 321 of the Code of Criminal Procedure.
Most respectfully shewth :

                  1. That this is an application for withdrawal of Vigilance P. S. Case No. 9 (2) 78
                  which has been charge sheeted under Section 466/120-B/109 of the Indian Penal
                  Code and Section 5 (1) (a), 5 (1) (b), 5 (1) (c) read with Section 5 (2) of the
                  Prevention of Corruption Act against Dr. J. N. Misra, Shri Jiwanand Jha and Shri N.
                  K. P. Sinha.

                  2, That since the prosecution of the case involves the questions of momentous public
                  policy of the Government which may have its consequences of wide magnitude
                  affecting the larger issued of public interest also the desirability of the continuance of
                  the prosecution was broadly examined both by the State Government and also by me.
                  Keeping in view (a) lack of prospect of successful prosecution in the light of
                  evidence. (b) the implication of the persons as a result of political and personal
                  vendetta. (c) the inexpediency of the prosecution for the reasons of the State and
                  public policy. (d) the adverse effects that the continuation of the prosecution will
                  bring on public interests in the light of the changed situation and after giving anxious
                  considerations and full deliberations. I beg to file this application to withdraw from
                  the prosecution of all the persons involved in the aforesaid case.

                  3. That I have, therefore, gone through the case diary and the relevant materials
                  connected with the case and have come to the conclusion that in the circumstances
                  prevailing at the time of institution of the case and the investigation thereof, it
                  appears that the case was, instituted on the ground of political vendetta and only to
                  defame the fair image of Dr. J. N. Misra, who was then the leader of the opposition
                  and one of the acknowledged leaders of the Congress Party in the country. The
                  prosecution was not launched in order to advance the interest of public justice. I
                  crave leave to place materials in support of the above submission and conclusion at
                  the time of moving this petition.

                  4. That it is in public interest that the prosecution which has not reasonable chance of
                  success and has been launched as a result of political vendetta unconnected with the
                  advancement of the cause of public justice should not proceed further. More so, as
                  the same is directed against the head of the Executive in whom not only the
                  electorate have put their faith and confidence, but who has been elected leader of the
                  majority party in the legislature, both events have taken place after the institution of
                  the case.

It is therefore, prayed that your honour would be pleased to grant permission to withdraw from the
prosecution of the persons accused in case and your honour may further be pleased to pass further
orders in conformity with Section 321 of the Code of Criminal Procedure, 1973.

And for this the petitioner shall ever pray.

76, A mere perusal of the above application abundantly shows that Shri L. P. Sinha did apply his
mind to the facts of the case; he perused "the case diary and the relevant materials connected with
the case", before he made the application. He did not blindly quote from the Government Letter No.
M/26-81 J. dated February 25, 1981 (quote above) which contained only one ground namely
"inexpediency of prosecution for reasons of State and public policy." A comparison of the contents
of this letter with the contents of the application under Section 321 of the Code completely
negatives the appellant's contention that Shri L. P. Sinha did not himself apply his mind
independently to the facts of the case and that he blindly acted on extraneous considerations.

77. As a proof of non-application of the mind of the Public Prosecutor learned counsel pointed out
that Shri L. P. Sinha mentioned in his petition inter alia Section 5 (1) (c) in place of Section 5 (1) (d)
of the Prevention of Corruption Act. In our opinion in the background of the case, it is too
insignificant an error to be taken note of.

78. The appellant then submits that the court erred in giving its consent for withdrawal as there was
a triable case before it. The submission is misconceived. What the court has to do under Section 321
is to see whether the application disclosed valid grounds of withdrawal--valid as judicially laid
down by this Court.

79. Learned counsel cited the following decision of this court in state of Bihar v. Ram Naresh
Pandey; State of Punjab v. Surjit Singh; M. N. S. Nair v. P. V. Balakrishan; Bansi Lal v. Chandan
Lal; State of Orissa v. Chandrika Mohapatra : Balwant Singh v. State of Bihar and R. K. Jain v.
State

80. We need not refer to all these decision except to R. K. Jain case hereinafter referred to as
'George Fernandes case', inasmuch as this decision has considered all the earlier decision, and
summarised the observations as under : [SCC para 14 p. 445 : SCC (Cri) P. 767]

Thus from the precedents of this Court, we gather :

                  1. Under the scheme of the Code prosecution of an offender for a serious offense is
                  primarily the responsibility of the executive.

                  2. The withdrawal from the prosecution is an executive function of the Public
                  Prosecutor.

                  3. The discretion to withdraw from the prosecution is that of the Public Prosecutor
                  and none else, and so, he cannot surrender that discretion to someone else.

                  4. The government may suggest to 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 pancity of evidence but on other relevant grounds as well in order to
                  further the board 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 Tammary Hall enterprises.

                  6. The Public Prosecutor is an officer of the court and responsible to the court.

                  7. The court performs a supervisory function in granting its consent to the
                  withdrawal.

                  8. The court's duty is not to reappreciate the grounds which led the Public Prosecutor
                  to request withdrawal from the prosecution but to consider whether the Public
                  Prosecution 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.

81. The Court in the above decision has also observed : [SCC para 16 pp. 445-46 : SCC (Cri) pp.
767-68]

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 prosecution where emotive issues are
involved in the same of vindicating the law may even be utterly counter-productive. An elected
Government sensitive and responsible 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 prosecution already launched. In such
matters who but the government can and should decide, in the first instance, whether it should bee
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?

82. The Court further observed : [SCC para 17 p. 446 : SCC (Cri) p. 768]

But, where such large and sensitive issues of public policy are involved, he (Public Prosecutor)
must, if he is right minded, seek advice and guidance from the 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 momentous public policy are involved, and if they advise the Public
Prosecutor to withdraw from the prosecution, it is not for the court to say that the initiative comes
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.

83. This decision is a complete answer to the contention raised by learned counsel of the appellant
that a triable case cannot be withdrawn. Pancity of evidence is only one of the grounds of
withdrawal.

84. Faced with this decision, learned counsel submitted that the case in hand was a case involving
common law offences while George Fernandes case was dealing with political offences, which
offences only, according to counsel, can be permitted to be withdrawn from prosecution. We are
unable to accept the submission. Section 321 of the Code has not dichotomised into common law
offences and political offences. The Court held in George Fernandes case, with respect rightly, "to
say that an offence is of a political character is not to absolve the offenders 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". The reason of the absence of any dichotomy in Section 321 of the Code
appears to us to be the very object of the section. What is the necessity of this section. An offence is
an offence. A trial will end in conviction or acquittal of the accused. If the offence is compoundable,
it may be compounded. But if the offence is not compoundable, why should the trial be withdrawn ?
How are offences under Section 121-A, 120-B of the Penal Code and Sections 4, 5 and 6 of the
Explosive Substances Act, 1908 and Section 5 (3) (b) and 12 of the Indian Explosives Act, 1984 (as
in George Fernandes case) less heinous than offences under Sections 420/466/471/109/120-B of the
Penal Code and Section 5 (1) (a), 5 (1) (b) and 5 (1) (d) of the Prevention of Corruption Act (as in
this Case) ? Are offences relating to security of State less serious than corruption ? In our view the
answers are in the negative. The reverse appears to be truer.

85. In our opinion the object of Section 321 CrPC appears to be to reserve power to the Executive
Government to withdraw any criminal case on largest grounds of public policy such as inexpediency
of prosecutions for reasons of State; Broader public interest like maintenance of law and order;
maintenance of public peace and harmony, social, economic and political situation; avoidance of
destablization of a stable government and the like. And such powers have been in our opinion
rightly reserved for the Government; for, who but the Government is in the know of such conditions
and situations prevailing in a State or in the country ? The Court is not in a position to know such
situations.

86. In George Fernandes case, the allegations against Shri George Fernandes, who later on became a
Minister of the Union Government during the Janata regime, were that after the proclamation of
Emergency on June 25, 1975, Shri George Fernandes, Chairman of the Socialist Party of India, and
Chairman of Railwaymen's Federation, sought to arouse resistance against the said Emergency and
to overthrow the Government and that he committed various acts in pursuance of that object. The
investigating agency submitted a charge-sheet against Shri Fernandes and 24 others for offences
under Section 121-A, 120-B, Penal Code, read with Section 4, 5 and 6 of the Explosive Substances
Act, 1908 and Section 5 (3) (b) and 12 of the Indian Explosives Act, 1984. Two of the accused
persons had been tendered pardon. They had, therefore, to bee 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 Section. The evidence of approver was recorded on March 22,
1977 and the case was adjourned to March 26, 1977 for further proceedings. At that stage, on March
26, 1977, Shri N. S. Mathur, Special Public Prosecutor filed an application under Section 321 of the
Code, for permission to withdraw from the prosecution. The application reads :

It is submitted on behalf of the State as under :

                  1. That on September 24, 1976, 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 u/s 121A, IPC, 120B, IPC r/w sections
                  4, 5 and 6 of the Explosive substances Act 1908 and sections 5 (3) (b) and 12 of the
                  Indian Explosives Act, 1884 as well as the substantive offences.

                  2. That besides the accused who were sent up for trial, two accused, namely, Shri
                  Bharat C. Patel and Rewati Kant Sinha were granted pardon by the Hon'ble Court
                  and were examined as approvers u/s 306 (4), CrPC.

                  3. That out of 25 accused sent up for trial cited in the charge-sheet, two accused
                  namely, Ladli Mohan Nigam and Atul Patel were declared proclaimed offenders by
                  the Hon'ble Court.

                  4. That in public interest and changed circumstances, the Central Government has
                  desired to withdraw from the prosecutions of all the accused.

                  It is therefore prayed that this Hon'ble Court may accord consent to withdraw from
                  (?)
                  #March 26, 1977 Sd/- (N. S. Mathur) Special Public Prosecutor for the State, New
                  Delhi.##

87. It is seen that the only ground for withdrawal was "public interest and changed circumstances"
as mentioned in para 4 of the petition.

88. The Chief Metropolitan Magistrate granted his consent for withdrawal from the prosecution on
the grounds that it was "expedient to accord consent to withdraw from the prosecution". In revision,
the High Court affirmed the Magistrate's order. The appeal by Special leave was dismissed by this
Court. In other words, an application stating Government's desire to withdraw from prosecution on
the grounds of "public interest" and "changed circumstances" was held to be valid under Section
321, CrPC.

89. The next question for examination is whether the permission was given by the Special Judge in
violation of law as laid down by this Court in this regard. We have already referred to the decisions
cited by the appellant. The law laid down by this Court in the series of decisions referred to above,
inter alia, is (1) that the withdrawal from the prosecution is an executive function of the Public
Prosecutor and that the ultimate decision to withdraw from the prosecution is his; (2) that the
Government may suggest to the Public Prosecutor that a particular case may not be proceeded with,
but nobody can compel him to do so; (3) that not merely inadequacy of evidence, but other relevant
grounds such as to further the board ends of public justice, economic and political; public order and
peace are valid grounds for withdrawal. The exercise of the power to accord or withdraw consent by
the court is discretionary. Of course, it has to exercise the discretion judicially. The exercise of the
power of the court is judicial to the extent that the court, in according or refusing consent, has to see
(i) whether the grounds of withdrawal are valid; and (ii) whether the application is bona fide or is
collusive. It may be remembered that the order passed by the Court under Section 321 of the Code,
either according or refusing to accord consent, is not appealable. A mere perusal of the impugned
order of the Special Judge shows that he had applied his mind to the law laid down by this Court in
George Fernandes case that has summarised the entire law on the point, and correctly applied them
to the facts of this case. It is therefore not correct to say that the decision of the Special Judge was
contrary to the law laid down by this Court.

90. The only other submission of the appellant is that there is a prima facie case for trial by the
Special Judge and that this Court should sent it back to him for trial. We have above that a criminal
proceeding with a prima facie case may also be withdrawal. Besides, the normal practice of this
Court in a criminal appeal by special leave under Article 136 of the Constitution directed against an
order of conviction or acquittal is that this Court does not peruse the evidence on record and
reappreciate it to find whether findings of facts recorded by the courts below are correct or
erroneous, far less does it peruse the Police Diary to see whether adequate materials were collected
by the investigating agency. It accepts the findings of the courts below unless it is shown that the
findings are the results of a wrong application of the principles of law and that the impugned order
has resulted in grave miscarriage of justice.

91. An order under Section 321 of the Code, in our opinion, does not have the same status as an
order of conviction or acquittal recorded by a trial or appellate court in a criminal prosecution,
under Section 321 of the Code has a narrower scope. As an order under Section 321 of the Code
recorded by the trial court is judicial, what the trial court is expected to do is to give reasons for
according or refusing its consent to the withdrawal. As stated above, the duty of the court is to see
that the grounds of withdrawal are legally valid and the application made by the Public prosecutor is
bona fide and is not collusive. In revision of an order under Section 321 of the Code, the duty of the
High Court is to see that the consideration by the trial court of the application under Section 321
was not misdirected; and that the grounds of withdrawal are legally valid. In this case, the trial court
elaborately considered the grounds of withdrawal and found them to be valid and accordingly its
consent for withdrawal. In revision the High Court affirmed the findings of the trial court.

92. We find no justification in this appeal by special leave to disturb the findings of the courts below
and peruse the statements of witnesses recorded or other materials collected by the Investigating
Officers during the course of investigation.

93. Although it does not arise out of the three points formulated by Mr. Venugopal at the start of his
argument, nor does it arise out of the appellant's petition opposing withdrawal, learned counsel
submitted that there was a prima facie case for trial by the Special Judge and the case should be
remanded to him for trial. Let us examine that aspect also as it has been argued at length.

94. Learned counsel fairly concedes that he does not take much reliance on oral evidence but takes
strong reliance on two pieces of documentary evidence, namely, alleged creation of forged
documents by Dr. Misra and the confessional statement of Haidari implicating Dr. Misra.

95. Elaborate arguments were advanced by learned counsel of the parties on the piece of
documentary evidence which, according to the appellant's counsel would form the basis of
conviction of respondent 2. That documentary evidence was that respondent 2 as Chief Minister
passed an order on May 16, 1975 in Hindi. English translation of this order reads as follows :

Much time has passed. On perusal of the file, it appears that there is no allegation of defalcation
against the Chairman and the Members of the Board of the Bank. Stern action should be taken for
realisation of loans from the loanees and if there are difficulties in realisation from the loanees,
surcharge proceedings should be initiated against the Board of Directors. The normal condition be
restored in the Bank after calling the Annual General Meeting and holding the elections.

96. According to the appellant, respondent 2 wrote the following fresh order :

Please issue orders for restoring the normal condition in the bank after holding Annual General
Meeting.

                  # Sd/- (Jagannath Misra) May 14, 1975##

and pasted it over the earlier order.

97. According to the appellant, respondent 2 by overwriting '4' (in Hindi) on the original Hindi digit
'6' changed the date, May 16, 1975 to May 14, 1975. These facts have not been denied by
respondent 2 before us.

98. The appellant's submission was that by the above act of antedating by overwriting, respondent 2
committed forgery, and by pasting over the earlier order committed an offence under Section 5 (1)
(d) of the Prevention of Corruption Act as by that latter act he obtained pecuniary advantage to Shri
Nawal Kishore, respondent 3, by stopping the surcharge proceedings.

99. Before proceeding further, it is pertinent to mention that in his application before the Special
Judge, the appellant did not final fault with any of the grounds of withdrawal in the application filed
by the Police Prosecutor under Section 321. His only contention was that an attempt was being
made by the Public Prosecutor to scuttle the case and that the court should apply its independent
mind before according consent to the withdrawal and that he should be heard in the matter. He made
no mention of any forgery by antedating or any earlier order and thereby making any attempt at
shielding of any culprit. He thus, prevented the Special Judge and the High Court from giving any
finding on alleged forgery on the allegations of pasting and antedating and thereby depriving us also
from the benefits of such findings of the courts below. This question of fact has now been sought to
be brought to the notice of this Court during the course of argument by learned counsel of the
appellant in this appeal. A question of fact that needs investigation cannot be allowed to be raised
for the first time in an appeal by special leave under Article 136 of the Constitution.

100. Be that as it may, let us examine the contention. But this will not be treated as a precedent. The
pasted order contained the following :

                  (i) The Chief Minister's finding that there was no allegation of defalcation against the
                  chairman and Members of the Board :

                  (ii) Direction to take stern action for realisation of the loans from the loanees;

                  (iii) Direction to initiate surcharge proceedings in case of difficulties in realisation;

                  (iv) Direction to call the Annual General Meeting of the Bank and hold election in
                  order to restore the normal condition of the Bank.

Only the portions against (i), (ii) and (iii) above have been covered by pasting the fresh order which
is but (iv) above. The appellant's submission is that by covering the first three directions, respondent
2 shielded respondent 3 and others from realizing the dues from the culprits including respondent 3
or from initiating surcharge proceedings against them. The answer to the contention is three-fold :

                  (i) The order of surcharge by the Chief Minister is unwarranted by law. Section 40 of
                  the Bihar Cooperative Societies Act, 1935 gives power only to the Registrar to
                  initiate surcharge proceedings. An appeal lies from his order to the State Government
                  under sub-section (3) of Section 40. (In fact, admitted Deputy Registrar of
                  Cooperative Societies issued notices of surcharge against respondent 3 on December
                  31, 1975 when respondent 2 himself was the Chief Minister.) If the Chief Minister
                  found that his first order was unwarranted by law, it was but right that he cancelled
                  his first order.

                  (ii) On a second thought any authority may bona fide change his mind and decide
                  that restoration of the normal condition of the Bank by calling the Annual General
                  Meeting and election should be attended to first and realisation of the loans and
                  surcharge proceedings later. Bona fide scoring out the order retaining the last part,
                  would constitute no offence by respondent 2. Pasting an order by a piece of paper
                  containing another order prima facie appears suspicious, but pasting is the common
                  practice in the Chief Minister's Secretariat as revealed by the file produced before us.

                  (iii) Antedating simpliciter is no offence. Mr. Venugopal advanced an argument on
                  the possible motive of antedating and submitted that the motive was to obliterate any
                  possible action on the first order. The submission is highly speculative and cannot be
                  accepted.
101. In any view, if two interpretations are possible, one indicating criminal intention and the other
innocent, needless to say that the interpretation beneficial to the accused must be accepted.

Confessional Statement of Haidari

102. As stated above, there was another vigilance case known as Kadam Kuan P. S. Case No. 97 (5)
77 relating to the officers of the Bank. It was being investigated by the officers of the Cooperative
Department but abruptly it was transferred to the Vigilance Department on January 16, 1978. In this
case Haidari, aforesaid, was one of the accused. He was also one of the accused in the case in hand,
but later on, on grant of pardon, he turned an approver and became a prosecution witness. He was
also being prosecuted in several other cases on the basis of orders passed by respondent 2 on August
4, 1976. In the Kadam Kuan Case, Haidari made a confessional statement on November 4, 1976 but
did not implicate respondent 2. He was rearrested on January 22, 1978 whereafter he made a second
confessional statement on January 24, 1978, this time implicating respondent 2 for the first time for
the alleged offence said to have been committed in the years 1973-75. As the Kadam Kuan Case
also related to the affairs of the Bank and Haidari had already made a confessional statement, there
was no need for him to make a second confessional statement on January 24, 1978. It may be
remembered that on that date, Vigilance Case No. 9 (2) 78 had not yet been registered and Haidari
was not an accused in this case and therefore it cannot be said that the confessional statement on
which great reliance has been placed by the appellant was a confessional statement made by an
accused. This case was registered at the Vigilamce Police Station in the morning on February 1,
1978 and, therefore, to give legal validity to the confessional statement it was shown recorded in
Kadam Kuan Case No. 97 (5) 77. This confessional statement is said to be the second confessional
statement of Haidari in the same Kadam Kuan Case. Haidari's so-called confessional statement
therefore is not only not a confessional statement of a co-accused by it inspires no confidence. On
the top of it, it was the statement of an accomplice turned approver, and is worthless.

103. The submission of the respondents that the criminal case against respondent 1 [sic 2] is the
result of political vendetta has also to be considered.

                  (i) The first circumstance pointed out by the respondents in this regard is the unusual
                  hurry in which the file was moved. It has been stated in the affidavit filed on behalf
                  of the State of Bihar by Shri Bidhu Shekhar Bannerjee, Deputy Superintendent of
                  Police, Cabinet Vigilance Department, that within the period of four days the
                  enquiries were completed, advice obtained and orders passed for instituting the case
                  as follows :

                  (i) The Kadam Kuan P. S. Case No. 97 (5) 77 was transferred to Vigilance
                  Department by an order dated January 9, 1978 passed by Shri Karpoori Thakur, the
                  then Chief Minister.

                  # January 16, 1978##

                  (ii) Confessions of Shri M. A. Haidari who was being prosecuted in other cases on
                  the order passed by Dr. Misra in August 1976 and of Shri A. K. Singh, a subordinate
                  clerk as well as appointee of Shri M. A. Haidari were recorded after their in the
                  present case January 22, 1978 and January 26, 1978 respectively

                  # January 24, 1978 January 28, 1978(iii) Enquiries Report submitted. January 28,
1978(iv) Report forwarded by the D. I. F. of Police to the L. G. January 29, 1978(v)
The same was forwarded to the Chief Secretary. January 30, 1978(vi) The Chief
Secretary forwarded it to the Advocate General. January 30, 1978(vii) The Advocate
General returned the file to the ChiefSecretary. January 31, 1978(viii) The Chief
Secretary sent the file to the Chief Minister(Shri Karpoori Thakur). January 31,
1978(ix) The Chief Minister passed order for prosecution of Dr.Misra. January 31,
1978(x) The case was registered. February 1, 1978##

(ii) The second circumstance pointed out is the political bitterness between
respondent 2 and Shri Karpoori Thakur. From the facts narrated at the beginning, it is
seen that there was animosity between the appellant and Shri Karpoori Thakur, the
former Chief Minister of the Janata Government on the one hand and respondent 2.
Dr. Misra, the present Congress (I) Chief Minister of Bihar, on the other.

It has been stated that respondent 2 is one of the prominent leaders of the Congress
Party that was politically opposed to the Janata Party Government headed by Shri
Karpoori Thakur at the time of the institution of the case. In 1977 when respondent 2
headed the Congress Government, a warrant of arrest was issued against Shri
Karpoori Thakur for his arrest and detention, for his alleged anti-government
activities and that Karpoori Thakur was nursing grudge against respondent 2. The
suggestion appears to have substance. Shri D. P. Ojha was a Superintendent of Police
in Bihar. It has been stated in the counter-affidavit filed by respondent 4 that he
(Ojha) had been indicted by Justice Mathew in his report submitted on May 9, 1975
relating to the murder of Shri L. N. Misra, brother of respondent 2. Justice Mathew
in his report held :

The direct responsibility for making security arrangements under the security
instructions dated September 13, 1971 issued by the Central Government devolve on
the head of the Police (Shri D. P. Ojha). The Commission finds that the S. P.,
Samastipur failed to discharge the duty enjoined upon him by the instruction dated
September 13, 1971 issued by the Central Government. The S. P., Samastipur was
guilty of dereliction of duty in this respect. The officers who failed to discharge their
duty or were negligent of the performance of same could be directly responsible to
the State Government and the State Government to be the agency for taking
appropriate action against them.

It has been stated in affidavit that the Janata Government at the Centre had accepted
the said findings of the Mathew Commission. But the Government of Bihar headed
by Shri Karpoori Thakur, not only exonerated Shri D. P. Ojha, but transferred him to
the Vigilance Department and all the cases relating to the Patna Cooperative Bank
(the Bank in question) were transferred to the Vigilance Department in charge of
Ojha. The respondent's allegations are that not only Chief Minister Shri Karpoori
Thakur had his own political animosity against Dr. Misra, but Shri Ojha had to work
under the influence of the Chief Minister. It has been suggested that he has been
instrumental in directing the investigation is such a way that a case was made out
against Dr. Misra and others by collecting false evidence. The suggestion cannot be
ruled out as frivolous of unreasonable. Shri Karpoori Thakur, the then Chief
Minister, Chaudhury Charan Singh, that a former Chief Minister could be proceeded
against only after obtaining clearance of the Prime Minister according to the Code of
                  Conduct of 1964. He also ignored the suggestion in this regard of Shri D. N. Sahay
                  that before proceeding against an ex-Chief Minister, clearance from the Prime
                  Minister and the Home Minister was necessary. He also ignored the suggestion of
                  Shri D. N. Sahay that no vigilance enquiry was necessary as there was already a
                  Commission of Enquiry into the Bank matter, and directed the investigation. This
                  shows active interest of Shri Karpoori Thakur in the prosecution of respondent 2.

                  (iii) The third circumstance pointed out is that although respondent 4 has been an
                  accused, no allegation against him has been pointed out.

104. It is common place that the prosecution is to prove the guilt of the accused beyond reasonable
doubt his defence, if any. If the defence is probable and reasonable, and its consideration creates
doubt in the creditability of the prosecution case, the accused will get the benefit and shall have to
be acquitted. In the instant case, as we have observed, the entire investigation has been vitiated and
no person can be convicted on the basis of evidence procured by such investigation.

105. The following circumstances also need to be taken into account in considering whether the case
merits sending back to the Special Judge for trial as proposed by the appellant, assuming and only
assuming, there is a prima facie case for trial :

                  (i) The occurrence took place as early as 1970; it is already more than 12 years.

                  (ii) Respondent 2 is the Chief Minister in his office. Knowing human nature, as it is,
                  it can hardly be expected that the witnesses, most of whom are officials, will come
                  forward and depose against a Chief Minister.

                  (iii) Even after the assumption of office by respondent 2 as the Chief Minister, in the
                  Court of the Special Judge, the prosecution was pending on several dates but the
                  Public Prosecutor, Shri A. K. Datta, did not take any interest in the case at all. It
                  cannot be expected that a Public Prosecutor appointed by the Government in power,
                  will now take interest and conduct the case so as to secure conviction of his own
                  Chief Minister. Remand for trial, if made, will be a mere exercise in futility; and it
                  will be nothing but an abuse of the process of the court to remand the case to the trial
                  court.

106. As a result of the foregoing discussions, the appeal is dismissed.

MISRA, J.

(concurring)-I have the privilege of persuing the differing judgments of brothers Tulzapurkar and
Baharul Islam, JJ. While I respectfully agree with some of the findings reached by brother
Tulzapurkar, I regret my inability to concur with some of the findings. I, therefore, propose to give
my own reasons for the same.

108. The present appeal by special leave is a sequel to an application under Section 321 of the Code
of Criminal Procedure (hereinafter referred to as 'the Code') made by the Public Prosecutor for
permission of the Court for withdrawal of Vigilance Case No. 9 (2) 78 filed by the State of Bihar
against respondent 2 (Dr. Jagannath Misra), respondent 3 (Nawal Kishore Sinha), respondent 4
(Jiwanand Jha) and three others (K. P. Gupta, since deceased, M. A. Haidari and A. K. Singh) who
later became approvers, for offences under Sections 420/466/471/109/120-B, Indian Penal Code and
under Sections 5 (1) (a), 5 (1) (b) and 5 (1) (d) of the Preventive of Corruption Act, 1947. Material
facts have already been detailed in the two judgment and, therefore, it is no use repeating the same
over again.

109. In order to appreciate the contention raised by the counsel for the parties it is essential to read
the grounds taken in the application. Para 2 of the application reads :

                  That since the prosecution of the case involves the question of momentous public
                  policy of the Government, which may have its consequences of wide magnitude
                  affecting the larder issue of public interest also, the desirability of the continuance of
                  the prosecution was broadly examined both by the State Government and also by me.
                  Keeping in view (a) lack of prospect of successful prosecution in the light of
                  evidence, (b) the implication of the persons as a result of political and personal
                  vendetta, (c) the inexpediency of the prosecution for the reasons of the State and
                  public policy, (d) the adverse effects that the continuation of the prosecution will
                  bring on public interests in the light of the changed situation, and after giving my
                  anxious considerations and full deliberations, I beg to file this application to
                  withdraw from the prosecution of all the persons involved in the aforesaid case.

Para 3 of the application states :

                  That I have therefore gone through the case diary and the relevant materials
                  connected with the case and have come to the conclusion that in the circumstances
                  prevailing at the time of institution of the case and the investigation thereof, it
                  appears that the case was instituted on the ground of political vendetta and only to
                  defame the fair image of Dr. J. N. Misra, who was then the leader of the opposition
                  and one of the acknowledged leaders of the Congress Party in the country. The
                  prosecution was not launched in order to advance the interest of public justice.

Para 4 reads :

                  That it is in public interest that the prosecution which has no reasonable chance of
                  success and has been launched as a result of political vendetta unconnected with the
                  advancement of the cause of public justice should not proceed further. More so, as
                  the same is directed against the head of the Executive in whom not only the
                  electorate have put their faith and confidence but who has been elected leader of the
                  majority party in the legislature, both events have taken place after the institution of
                  the case.

110. The application was opposed on a variety of grounds by the appellant, which I shall deal with
in the latter part of the judgment in detail.

111. The application was, however, allowed by the Chief Judicial Magistrate-cum-Special Judge
(Vigilance) and he accorded his consent by his speaking order dated June 20, 1981.

112. The appellant took up the matter in revision to the High Court which also confirmed the order
of the trial court. The appellant has now come to this Court by special leave. The grounds taken on
behalf of the appellant are four-fold :

                  1. (a) For the purpose of s. 321 of the Code there exists a dichotomy between
                  political offences and offences under common law. While the former can be
                  withdrawn on grounds of public policy, interest or reasons of state even though there
                  is certainty of containing a conviction, on question of public policy, public interest or
                  reasons of State could ever arise in a prosecution for a Common Law offence or a
                  common case of bribery or forgery.

                  (b) Similarly, no question of political or personal vendetta would arise in a case
                  where the proof of the offence is based primarily on documents, the genuineness of
                  which is not in dispute. Thus, three of the grounds on which withdrawal from
                  prosecution is based viz., public policy, public interest, reasons of State, and public
                  or personal vendetta are irrelevant grounds, if it is established that the offence under
                  s. 466 of the JPC and s. 5 (1) (d) of the Prevention of Corruption Act primarily based
                  upon indisputed documentary evidence make out a prima facie case.

                  2. If the court chooses to give consent to the withdrawal of a criminal case on the
                  ground of paucity of evidence or absence of a successful prosecution, the court has to
                  examine the material or evidence already recorded for deciding whether withdrawal
                  is an abuse of or an interference with the normal course of justice.

                  3. The Public Prosecutor who applied for withdrawal of the case was not competent
                  to withdraw as he was not incharge of the case, and in any case he acted at the behest
                  of the Government and did not apply his own mind.

                  4. The documentary evidence on the record prima facie makes out a case of forgery
                  (s. 466, IPC) and s. 5 (1) (d) (criminal misconduct) of the Preventive of Corruption
                  Act.

113. Before dealing with the points raised on behalf of the appellant it is appropriate at this stage to
know the nature and scope of Section 321 of the Code.

114. A bare perusal of the section shows that it does not prescribe any ground nor does it put any
embargo or fetter on the power of the Public Prosecutor to withdraw from prosecuting a particular
criminal case pending in any court. All that it requires is that he can do so only with the consent of
the court where the case is pending. This Court has, however, laid down certain guiding principles
for the exercise of the power of withdrawal under this section by the Public Prosecutor or by the
court according its consent to such withdrawal. It is in the light of those guidelines that the propriety
or the legality of the withdrawal of criminal proceeding has to be judged.

115. In this country the scheme of criminal justice places the prime responsibility of prosecuting
serious offences on the executive authority. The investigation, collection of requisite evidence and
the prosecution for the offences with reference to such evidence are the functions of the executive.
The function of the court in this respect is limited one and intended only to prevent the abuse. The
function of the court in according its consent to withdrawal is, however, a judicial function. It,
therefore, becomes necessary for the court before whom the application for withdrawal is filed by
the Public Prosecutor to apply its mind so that the appellate court may examine and be satisfied that
the court has not accorded its consent as a matter of course but has applied its mind to the grounds
taken in the application for withdrawal by Public Prosecutor.

116. The guiding principles laid down by the various decisions of this Court may now be referred
to. In State of Bihar v. Ram Naresh Pandey this Court had the occasion to consider the scope of the
corresponding Section 494 of the unamended Code, which was in pari materia with the present
Section 321, and observed as follows :

                  The Magistrate's function in these matters are not only supplementary, at a higher
                  lever, to those of the executive but are intended to prevent abuse. Section 494
                  requiring the consent of the Court for withdrawal by the Public Prosecutor is more in
                  line with this scheme, than with the provisions of the Code relating to inquiries and
                  trials by Court. It cannot be taken to place on the Court the responsibility for a prima
                  facie determination of a triable issue. For instance the discharge that result therefrom
                  need not always conform to the standard of "no prima facie case" under Sections 209
                  (1) and 253 (1) or of "groundlessness" under Sections 209 (2) and 253 (2).... the
                  function of the Magistrate in giving consent is a judicial one open to correction.... the
                  application for reasons not confined to the judicial prospects of the prosecution.... If
                  so, it is clear that, what the Court has to determine, for the exercise of its discretion
                  in granting or withholding consent, is not a triable issue on judicial evidence.

117. Again in M. N. S. Nair v. P. V. Balakrishnan this Court after reviewing various cases from
different High Courts laid down the following guidelines :

                  Though the section is in general terms and does not circumscribe the power of the
                  Public Prosecutor to seek permission to withdraw from the prosecution the essential
                  consideration which is implicit in the grant of the power is that it should be in the
                  interest of administration of justice which may be either that it will not be able to
                  produce sufficient evidence to sustain the charge or that subsequent information
                  before prosecuting agency would falsify the prosecution evidence or any other
                  similar circumstance which it is difficult to predicate as they are dependent entirely
                  on the facts and circumstances of each case. Nonetheless it is the duty of the Court
                  also to see in furtherance of justice that the permission is not sought on grounds
                  extraneous to the interest of justice or that offences which are offences against the
                  State do not go unpunished merely because the Government as a matter of general
                  policy or expediency unconnected with its duty to prosecute offenders under the law,
                  directs the public prosecutor to withdraw from the prosecution and the Public
                  Prosecutor merely does so at its behest. [SCC para 5, p. 322 : SCC (Cri) p. 59]

It appears to us that the wide and general powers which are conferred under Section 494 on the
Public Prosecutor to withdraw from the prosecution though they are subject to the permission of the
Court have to be exercised by him in relation to the facts and circumstances of that case in
furtherance of, rather than as a hindrance to the object of law and justified on the material in the
case which substantiate the grounds alleged, not necessary from those gathered by the judicial
method, but on other materials which may not be strictly on legal or admissible evidence. The Court
also while considering the request to grant permission under the said section should not do so as a
necessary formality - the grant of it for the mere asking. It may do so only if it is satisfied on the
materials placed before it that the grant of it subserves the administration of justice and that
permission was not being sought covertly with an ulterior purpose unconnected with the vindication
of the law which the executive organs are in duty bound to further and maintain. [SCC para 8, p.
324 : SCC (Cri) P. 61]

118. The same principle was reiterated again in State of Orissa v. Chandrika Mohapatra in these
words : (SCR head-note)

The ultimate guiding consideration must always be the interest of administration of justice and that
is the touchstone on which the question must be determined. No hard and fast rule can be laid down
nor can any categories of cases be defined in which consent should be granted or refused. It must
ultimately depend on the facts and circumstances of each case in the light of what is necessary in
order to promote the ends of justice, because, the objective of every judicial process must be the
attainment of justice.

119. In Balwant Singh v. State of Bihar this Court laid down : [SCC para 2, p. 450 : SCC (Cri) p.
635]

The statutory responsibility for deciding upon withdrawal squarely vests on the public prosecutor. It
is non-negotiable and cannot be bartered away in favour of those who may be above him on the
administrative side.... the consideration which must weigh with him is, whether the broader cause of
public justice will be advanced or retarded by the withdrawal or continuance of the prosecution.

120. The last in the series is the case of R. K. Jain v. State . After review of the various cases of this
Court, the laid down the following propositions : [SCC para 14, p. 455 : SCC (Cri) p. 767]

                  1. Under the scheme of the Code prosecution of an offender for a serious offence is
                  primarily the responsibility of the executive.

                  2. The withdrawal from the prosecution is an executive function of the Public
                  Prosecutor.

                  3. The discretion to withdraw from the prosecution is that of the Public Prosecutor
                  and none else, and so, he cannot surrender that discretion to someone else.

                  4. The government may suggest to the Public Prosecutor that he may withdraw from
                  the prosecution but none can compel him to do so.

                  5. The Public Prosecutor may withdraw from the prosecution not merely on the
                  ground of paucity of evidence but on other relevant grounds as well in order to
                  further the broad ends of public justice, public order and peace. The broad ends of
                  public justice will certainly include appropriate social, economic and, we add,
                  political purposes sans Tammany Hall enterprises.

                  6. The Public Prosecutor is an officer of the court and responsible to the court.

                  7. The court performs a supervisory function in granting its consent to the
                  withdrawal.

                  8. The court's duty is not to reappreciate the grounds which led the Public Prosecutor
                  to request withdrawal from the prosecution but to consider whether the Public
                  Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and
                  extraneous considerations. The court has a special duty in this regard as it is the
                  ultimate repository of legislative confidence in granting or withholding its consent to
                  withdrawal from the prosecution.
121. In view of the principles laid down in the aforesaid cases, I have to examine whether the
grounds taken by the appellant are tenable.

122. I take up the first ground raised on behalf of the appellant that for the purpose of Section 321,
CrPC there exists dichotomy between the political offences and offences at common law and while
political offences can be withdrawn on grounds of public policy, public interest, or for reasons of
the State, even though there is certainty of obtaining a conviction, no such consideration could ever
arise in a prosecution for a common law offence or a common case of bribery or forgery.

123. This argument proceeds on the assumption that in the cases cited above, permission was
granted only in cases relating to political offences and not with regard to offences at common law. I
am afraid, this will not be a fair reading of the decisions mentioned above. One of the principles laid
down in the aforesaid cases is that the Public Prosecutor may withdraw from the prosecution not
only on the ground of paucity of evidence but on other relevant grounds as well in order to further
broad aims of justice, public order and peace. Broad aims of public justice will certainly include
appropriate social, economic and political purposes. In M. N. S. Nair case 6 this Court after
enumerating certain grounds further observed : [SCC para 5, p. 322 : SCC (Cri) p. 59]

.... any other similar circumstance which it is difficult to predicate as they are dependent entirely on
the facts and circumstances of each case.

Likewise in C. Mohapatra case 2 this Court again observed : [SCC para 10, p. 255 : SCC (Cri) p.
588]

No hard and fast rule can be laid down nor can any categories of cases be defined in which consent
should be granted or refused.

In face of these observations it will be difficult to accept the contention that withdrawal from
prosecution can be permitted only in political offences and not in common law offences. In the past
there have been cases where crimes motivated by political ambitions or considerations or committed
during mass agitations, communal frenzies, regional disputes, industrial conflicts, student unrest or
the like situations involving emotive issues giving rise to an atmosphere surcharged with violence,
have been permitted to be withdrawn in the interest of public order and peace. But on that account it
will not be correct to say that permission to withdraw can be granted by the court only when
offences as enumerated above are involved. Section 321 is in very wide terms and in view of the
decisions cited above it will not be possible to confine the grounds only to offences which may be
termed as political offences or offences involving emotive issues. To interpret the section in the way
as desired by the counsel for the appellant will amount to rewriting Section 321 of the Code. The
only guiding factor which should weigh with the Public Prosecutor while moving the application for
withdrawal and the court according its permission for withdrawal is to see whether the interest of
public justice is advanced and the application for withdrawal is not moved with oblique motive
unconnected with the vindication of cause of public justice.

124. If once it is accepted that the application for withdrawal from the prosecution can be made on
various grounds and it is not confined to political offences, the contention raised on behalf of the
appellant that grounds (b), (c), (d) mentioned in the application for withdrawal are irrelevant in the
instant case will not be tenable. The Indian Penal Code or the Code of Criminal Procedure does not
make any such distinction between political offences other than political ones. Even if it is accepted
that political offences are not unknown to jurisprudence and other Acts do contemplate political
offences, the fact remains that Section 321, CrPC is not confined only to political offences or social
offences, but it applies to all kinds of offences and the application for withdrawal can be made by
the Public Prosecutor on various grounds. The only safeguard that should be kept in mind by the
Public Prosecutor is that it should not be for an improper or oblique or ulterior consideration, and
the guiding consideration should be that of vindication of public justice.

125. In the application for withdrawal from prosecution the Public Prosecutor has given four
reasons and he has applied his own mind to the facts and circumstances of the case. In para 3 of his
application he has clearly stated that he has gone through the case diary and the relevant materials
connected with the case and has come to the conclusion that in the circumstances prevailing at the
time of institution of the case and the investigation thereof it appears that the case was instituted on
the grounds of political vendetta and only to defame the fair image of Dr. J. N. Misra who was then
the leader of the opposition and one of the acknowledged leaders of the Congress Party in the
country.

126. The Court while according the consent to the withdrawal has only to see that the Public
Prosecutor has acted properly and has not been actuated by oblique or extraneous considerations. It
is not the function of the Court to make a fresh appraisal of the evidence and come to its own
conclusion on the question whether there is a triable issue to be investigated by the Court.

127. First I take up ground (b) in para 2 of the application for withdrawal, that is, the implication of
respondent 2, as a result of personal and political vendetta. In the opinion of the Public Prosecutor,
the prosecution was motivated by personal and political vendetta. The aforesaid criminal case was
instituted during the period of Janata Party Government by an order dated January 31, 1978 passed
by Shri Karpoori Thakur, the then Chief Minister, who was the Party leader of the appellant
Sheonandan Paswan, who was also the State Minister of the Janata Party Government.

128. From the materials placed on the record it is evident that respondent 2 is one of the prominent
leaders of the Party politically opposed to the Janata Party which was the party in power led by Shri
Karpoori Thakur at the relevant time of the institution of the prosecution. Respondent 2 had been a
bitter critic of the principles and policies of Shri Karpoori Thakur. In 1977 when respondent 2 was
heading the Government a warrant of arrest was issued against Shri Karpoori Thakur for his arrest
and detention. The appellant, formerly a Deputy Magistrate, was posted as Assistant Secretary in the
Chief Minister's Secretariat of respondent 2. He was removed from the Secretariat to some other
department by respondent 2. The appellant joined the Lok Dal and fought election on Lok Dal ticket
after resigning his job. When he became a State Minister in the Ministry of Shri Karpoori Thakur,
he came to occupy a big official bungalow at Bailly Road, Patna. In 1980 when the party to which
respondent 2 belongs came to power, respondent 2 became the Chief Minister. The appellant ceased
to be a State Minister and was asked to hand over possession of the official residence. Since the
appellant refused to vacate the State Government ultimately resorted to extreme legal step for
dispossessing him. This made the appellant feel aggrieved. He vindicated his right by filing a writ
petition in the High Court which was eventually decided in his favour. The fact, however, remains
that there was no love lost between the appellant and respondent 2.

129. When Shri Karpoori Thakur became the Chief Minister in the Janata Party regime, the
quickness with which the files moved when a decision was taken to prosecute respondent 2 is very
significant. From the affidavit of Shri Bidhu Shekhar Banerjee, Deputy Superintendent of Police,
Cabinet Vigilance Department, it is apparent that within the course of a few days the enquiries were
completed, advice obtained and orders passed for instituting the case. On January 9, 1978 all the
criminal cases investigated by Dy. S. Ps., CI, Bihar, relating to Patna Urban Cooperative Bank,
including P. S. Case No. 97 (5) 77 were transferred to Vigilance Department by order of Shri
Karpoori Thakur, the then Chief Minister and placed under the Inspector, Shri Raghubir Singh. On
January 22, 1978 M. A. Haidari and A. K. Sinha, accused of Kadam Kuan P. S. Case No. 97 (5) 77
were rearrested by Shri Raghubir Singh, Inspector and the second confession of Shri M. A. Haidari
was secured in which for the first time he brought allegations against Dr. Misra. The confession of
Shri A. K. Sinha was secured on January 26, 1978. On January 28, 1978 Shri D. P. Ojha, S. P.,
Vigilance submitted his enquiry report recommending institution of criminal cases against Dr. Misra
and others. On January 29, 1978 Shri S. B. Sahay, D. I. G., Vigilance also recommended the
institution of a criminal case. On January 30, 1978, I. G., Vigilance also recommended the
prosecution. On the same day the file was referred to Advocate General Shri K. D. Chatterjee
appointed as Advocate General by Shri Karpoori Thakur. On January 31, 1978 the Chief Secretary
sent the file to the Chief Minister of Bihar. On the same day the Chief Minister, Bihar approved it
and handed over the file direct to Shri S. B. Sahay, D. I. G. On February 1, 1978 the file was
endorsed by S. P., Vigilance, Shri D. P. Ojha to Additional S. P., R. P. Singh for instituting the case.
On February 1, 1978 a vigilance criminal case was instituted in police station at 06.00 hrs. At 08.50
hrs. the case was discussed by I. G. with D. I. G. Shri S. B. Sahay and Shri D. P. Ojha and decision
was taken to search houses of Dr. Misra at Patna, Balua Bazar, and his relations. On the same day
request to issue search warrants was made and search warrants were issued. On the same day
Inspector M/s. Sharda Nanda Singh, Raghubir Singh and Ramdehia Sharma were got transferred
from C. I. D. to Vigilance.

130. The speed with which the file of the criminal case moved from one place to another and orders
obtained itself indicates that it was not to vindicate the cause of public justice but it was only to feed
their grudge that such a keen interest was exhibited by the Chief Minister and the appellant also
actuated by his personal and political vendetta sought to oppose the application for withdrawal. In
these circumstances it is doubtful whether the appellant was truly representing the public interest.

131. To say that unless the crime allegedly committed are per se political offences or are motivated
by political ambition or consideration or are committed during mass agitation, communal frenzies,
regional disputes, no question of serving a broader cause of public justice, public order or peace can
arise is to put limitation on the broad terms of Section 321 of the Code.

132. The Public Prosecutor was of the view that as a result of election there was a change in the
situation inasmuch as respondent 2's party received the peoples' mandate and voted to power and
respondent 2 had become the Chief Minister of the State and that the prosecution against the head of
the State would have had adverse effect on public interest, including public order and peace and,
therefore, he thought it inexpedient for reasons of State and public policy to proceed with the case.
It is the Public Prosecutor who has been given the exclusive power to apply for withdrawal and if he
in his discretion thinks that it would be inexpedient to proceed with the case the court cannot
reconsider the matter afresh and come to its own conclusion different from the one taken by the
Public Prosecutor unless the court comes to a conclusion that the Public Prosecutor has done so with
an improper or oblique motive.

133. In my opinion the decision of the Public Prosecutor to withdraw from the case on the grounds
given by him in his application for withdrawal cannot be said to be actuated by improper to oblique
motive. He bona fide thought that in the changed circumstances of the case it would be inexpedient
to proceed with the case and it would be sheer wastage of public money and time to on with the case
if the In the circumstances instead of serving the public cause of justice it will be to the detriment of
public interest.

134. The statutory responsibility for deciding withdrawal squarely rests upon the Public Prosecutor.
It is non-negotiable and cannot be bartered away. The court's duty in dealing with the application
under Section 321 is not to reappreciate the grounds which led to consider whether the Public
Prosecutor applied his mind as a free agent uninfluenced by irrelevant and extraneous or oblique
considerations as the court has a special duty in this regard inasmuch as it is the ultimate repository
of legislative confidence in granting or withholding its consent to withdrawal from prosecution. The
court's duty is to see in furtherance of justice that the permission is not sought on grounds
extraneous to the interest of justice.

135. The Public Prosecutor applied his mind and on perusal of case diary and other materials he was
satisfied in the interest of public justice to withdraw from the case.

136. The court also passed a speaking order while according its consent to the withdrawal. The
relevant portion of its order is in the following terms :

                  Having considered the legal position explained by the Supreme Court and the
                  submissions made by the learned Special Public Prosecutor incharge of this case, and
                  having pursued the relevant records of the case I am satisfied that it is a fit case in
                  which the prayer of the learned Special Public Prosecutor to withdraw should be
                  allowed and it is therefore allowed.

Normally the observation made by the Court that it has persued the relevant records of the case
should be presumed to be correct unless a very strong case is made out for holding that it did not do
so and the vaunted remark made by the Court that it has done so is incorrect. In a similar situation
this Court in Chandrika Mohapatra case 2 observed : [SCC para 7, p. 253 : SCC (Cri) p. 587]

.... according to the prosecution, the evidence collected during investigation was not sufficient to
sustain the charge against the respondent and the learned Magistrate was satisfied in regard to the
truth of this averment made by the Court Sub-Inspector. It is difficult for us to understand how the
High Court could possibly observe in its order that the magistrate had not persued the case diary
when in terms the learned Magistrate has stated in his order that he had read the case diary and it
was after reading it that he was of the opinion that the averment of the prosecution that the evidence
was not sufficient was not ill-founded.

137. An attempt has been made on behalf of the appellant to show that the case diary was not with
the court and that it was lying elsewhere and, therefore, he could not have persued the case diary
and his observation is not quite correct. This contention cannot be accepted at its face value in view
of the observations made by the court.

138. Now I take up ground (a) of the application for withdrawal from the case. This ground relates
to lack of prospect of a successful prosecution in the light of evidence. The counsel for the appellant
has contended that in the instant case on the documentary evidence itself, which is not in dispute, an
offence under Section 466 of the Indian Penal Code and Section 5 (1) (d) of the prevention of
Corruption Act is prima facie made out and the Public Prosecutor was not justified in moving the
application for withdrawal on this ground. He referred to the antedating of an order. Dr. J. N. Misra,
respondent 2, after becoming the Chief Minister passed an order in his handwriting on May 16,
1975 in Hindi, the English rendering whereof is given below :
Much time has passed. On perusal of the file it appears that there is no allegation of defalcation
against the Chairman and the Members of the Board of the Bank. Stern action should be taken for
realisation of the loans from the loanees and if there are difficulties in realisation from the loanees
surcharge proceedings should be initiated against the Board of Directors. Normal conditions be
restored in the Bank after calling the Annual General Meeting and holding elections.

                  # Sd/- (Jagannath Misra) May 16,1975.##

It appears that this order was replaced by another order in Hindi, the English rendering of which is :

                  Please issue orders for restoring the normal conditions in the Bank after holding
                  Annual General Meeting.

                  # Sd/- (Jagannath Misra) May 14, 1975##

by pasting this order over the order dated May 16, 1975 and by antedating the latter order as May
14, 1975 and this clearly in the opinion of the learned counsel brings out an offence of criminal
misconduct under Section 5 (1) (d) of the Prevention of Corruption Act and of forgery under
Section 466, IPC. A lot of argument was advanced that the pasting of an order over the order dated
May 16, 1975 by a latter order itself creates a suspicion. This was rather an unusual method adopted
by Dr. J. N. Misra to erase the previous order and to replace it by another order of the same date by
antedating it as May 14, 1975 by pasting it over the earlier order. The method of replacing one order
by another by pasting over the earlier one appears to be a well-recognised practice in the Secretariat
of Bihar Government and Solicitor-General Shri K. Parasaran showed various similar orders which
had been replaced by another order by pasting over the earlier one. So, that part of the argument
loses all its force on examination of various similar orders by adopting the same method. The
question, however, is whether this antedating of the latter order as May 14, 1975 by pasting it over
the earlier order would amount to criminal misconduct within the meaning of Section 5 (1) (d) of
the Prevention of Corruption Act and forgery within the meaning of Section 466 of the Indian Penal
Code. Insofar as it is material for the purposes of this case, Section 5 (1) (d) of the Prevention of
Corruption Act reads :

                  5. (1) A public servant is said to commit the offence of criminal misconduct -

                  #* * *##

                  (d) if he, by corrupt or illegal means or by otherwise abusing his position as public
                  servant, obtains for himself or for any other person any valuable thing or pecuniary
                  advantage, or

                  #* * *##

                  The contention on behalf of the appellant is that by changing the order dated May 16,
                  1975, respondent 2 obtained for Nawal Kishore Sinha, respondent 3, a pecuniary
                  advantage inasmuch as by antedating the second order respondent 2 had absolved
                  Nawal Kishore Sinha from the surcharge proceedings. The factum of change has not
                  been disputed by respondent 2 and therefore, prima facie an offence under Section 5
                  (1) (d) is made out and no other evidence be looked into. In the circumstances the
                  Public Prosecutor was not justified in coming to the conclusion that there was no
                  prospect of conviction of respondent 2.
139. I am afraid this contention cannot be accepted for obvious reasons. The earlier order dated May
16, 1975 no doubt contemplated four things :

                  (1) that there is no allegation of defalcation against the Chairman and Members of
                  the Board of the Bank;

                  (2) stern action should be taken for realisation of the loans from the loanees;

                  (3) if there are difficulties in the realisation from the loanees surcharge proceedings
                  should be initiated against the Board of Directors, and

                  (4) normal conditions be restored in the Bank after calling the Annual General
                  Meeting and holding elections.

By the second order, which is said to have been antedated, only the fourth part of the order has been
maintained. There seems to be no earthly reason for antedating the latter order by putting the date as
May 14, 1975. It was always open to the Minister to have changed his order and pass another order.
The same purpose could have been served by respondent 2, if he really wanted to absolve
respondent 3 from the liability by passing the order on May 16, 1975 by replacing the earlier order
by the subsequent order. Rather that purpose of respondent 2, if at all, could have been served better
by keeping the date of the second order as May 16, 1975 or any subsequent date. Secondly, the
second antedated order dated May 14, 1975 could not stand in the way of initiating surcharge
proceedings against respondent 3 and other members of the Board of the Bank. Date May 14, 1975,
for all we know, may have been on account of some accidental slip. The other reason as suggested
by the Solicitor-General is that surcharge proceedings could be initiate only by the Cooperative
Department under Section 40 of the Bihar and Orissa Cooperative Societies Act, 1935. It reads :

                  40. Where as a result of an audit under Section 33 or an enquiry under Section 35, or
                  an inspection under Section 34, 36 or 37, or the winding up of a Society it appears to
                  the Registrar that any person who has taken part in the organisation or management
                  of the society or any past or present officer of the society has been guilty of the fact
                  or omission mentioned in clause (a), (b), (c) or (d) the Registrar may enquire into the
                  conduct of such persons or officers and after giving such officer or person an
                  opportunity of being heard, make an order for surcharge.

Therefore, in view of the aforesaid provisions of Section 40 of the Cooperative Societies Act, taking
steps for a surcharge is not within the jurisdiction of the State Executive. This may have been
another reason for dropping the proceedings for surcharge, if at all, against the officers of the Bank.
There is yet another reason. The second antedated order does not say a word about dropping the
surcharge proceedings ordered by respondent 2 in the earlier order, and, therefore, it is difficult to
say that respondent 2 had actually dropped the surcharge proceedings against respondent 3 and other
officers of the Cooperative Bank. Indeed, surcharge proceedings had been initiated, Surcharge files
regarding Surcharge Case o. 3 of 1975 proves that surcharge files regarding Surcharge Case No. 3
of 1975 proves that surcharge proceedings were proposed initially by the Deputy Registrar on April
30, 1975 and were in fact taken on June 1, 1975 and the show-cause notice was issued on July, 1,
1975 and surcharge order was made against Shri Nawal Kishore Sinha and others on December 31,
1975. This shows clearly that no benefit or advantage was given to Nawal Kishore Sinha or others
by the order of May 14, 1975. From the affidavit of Jiwanand Jha, respondent 4, it appears that an
amount of Rs. 33,96,024.90 was given as loans to 180 persons. Out of the total amount given by
way of loans an amount of Rs. 25,64,682.23 has already been realised from 106 persons. The
unrealised amount is only Rs. 8,31,337.67 for which decrees have been passed against 64 persons
and as against the remaining 10 persons proceedings for realisation ares going on.

140. About the offence of forgery under Section 466 of the Indian Penal Code also I have my grave
doubts. Forgery has been defined under Section 463 as "making any false document". Making of
false document is defined in Section 464. According to the counsel for the appellant the present case
falls within the scope of "who dishonestly or fraudulently makes a document or part of a
document... at a time at which he knows that it was not made, signed, sealed or executed". The word
"dishonestly" has been defined in Section 24 of the Indian Penal Code as "whoever does anything
with the intention of causing wrongful gain to one person or wrongful loss to another person is said
to do that thing 'dishonestly'"."Fraudulently" has been defined in Section 25 as "a person is said to
do a thing fraudulently if he does that thing with intent to defraud but not otherwise." The precise
contention raised on behalf of the appellant is that respondent 2 changed the order which has been
earlier passed with the intention of causing wrongful loss to the Bank by reason of the fact that by
the order passed surcharges proceeding was countermanded.

141. On the materials on record I am not satisfied that a prima facie case under Section 5 (1) (d) of
the Prevention of Corruption Act and of forgery under Section 466, Indian Penal Code are made
out.

142. The facts have many faces. If the view of the Public Prosecutor is one, which could in the
circumstances be taken by any reasonable man, the court cannot substitute its own opinion for that
of the Public Prosecutor. If the Public Prosecutor has applied his mind on the relevant materials and
his opinion is not perverse, and which a reasonable man could have arrived at, a roving enquiry into
the evidence and materials on the record for the purpose of finding out whether his conclusions
were right or wrong would be incompetent. That would virtually convert this Court into an appellate
court sitting on judgment.

143. The contention raised by the counsel for appellant that the Public Prosecutor Shri Lalan Prasad
Sinha was not competent to apply for withdrawal has not been accepted by my brothers Tulzapurkar
and Baharul, Islam, JJ. and I respectfully agree with them.

144. If the Public Prosecutor thought that the continuance of the prosecution in the circumstances
would only end in an exercise in futility, he was fully justified in moving the application for with
drawal. The only question is whether he has applied his mind and he was not actuated by any
extraneous consideration or improper motive. It was sought to be argued on behalf of the appellant
that the Public Prosecutor has acted at the behest of the Government and he did not apply his own
mind. Reference was made to the letter sent by the Government to the Public Prosecutor. The letter
did indicate that the Government wants him not to proceed with the case but the letter gave full
freedom to the Public Prosecutor. The letter did indicate that the Government wants him not to
proceed with the case but the letter gave full freedom to the Public Prosecutor to apply his own
mind and to come to his own conclusion. In view of the various authorities of this Court,
consultation with the Government or high officer is not improper. But the Public Prosecutor has to
apply his own mind to the facts and circumstances of the case before coming to the conclusion to
withdraw from the prosecution. From the materials on the record I am satisfied that the Public
Prosecutor has applied his own mind and came to his own conclusions.

145. The last but not the least in importance was the point raised on behalf of the appellant that the
sanction for prosecution had already been given by the then Chief Minister, Abdul Gaffoor and the
complaint was going to be field but it was postponed on account of respondent 2 who by that time
took over as the Chief Minister of Bihar. The argument is that firstly he tried to delay the filing of
the complaint; and secondly that he ordered for not prosecuting the officers of the Banik including
respondent 2, Shri Jagannath Misra.

146. It appears from the notes on dates given on behalf of the respondent that the file went to the
Chief Minister, respondent 2, because of an earlier nothing dated January 1, 1975 by Shri Umesh
Prasad Verma that the Chief Minister may also like to see. A further nothing dated January 31,1975
by Shri R. K. Shrivastava in the Ministry of Cooperation was to the following effect :

Chief Minister and Minister of Law have desired to see the file before complaints are actually
lodged. As per their directions, the file has been recalled from the Additional Public Prosecutor. In
the circumstances narrated above Minister of Law and Chief Minister would like to accord their
approval to the filing of the complaint.

A subsequent note of Shri R. K. Shrivastava dated January 27,1975 is in the following terms :

The Chief Minister has desired that if the said complaint has not been filed should await till he is
able to see the file. Another buff-sheet has been received from the Minister for Agriculture also. The
file may kindly be recalled and filing of complaints may await till further clearance of the C. M.

It appears that the previous Chief Minister was replaced by that time by Dr. J. N. Misra. It is in these
circumstances that the file was sent to respondent 2 in his capacity as Chief Minister in pursuance of
the earlier desire of the then Chief Minister, Shri Abdul Gaffoor, and passed the following order :

                  In order to recover the money from some of the loanees of the Patna Urban
                  Cooperative Bank criminal cases were instituted against them. Action should be
                  taken immediately for the withdrawal of the cases against those loanees who have
                  cleared the loan in full and proper installments for payment of loans should be fixed
                  against those who want to repay the loan but due to financial incapacity are unable to
                  make payment at a time and thereafter necessary further action should be taken.

In this state of affairs it cannot be said that respondent 2 was out to obstruct the criminal
proceedings.

147. The fact that the prosecution, if ordered, will start after a gap of about eight years cannot be
lost sight of. In the view taken by me in the earlier part of the judgment that no prima facie case in
my opinion has been made out under Section 466 of the Indian Penal Code and Section 5 (1) (d) of
the Prevention of Corruption Act and the fact that the High Court in revision agreed with the view
of the Special Judge giving consent to the withdrawal from the prosecution on the application of the
Public Prosecutor under Section 321, CrPC, this Court cannot make a fresh appraisal of evidence
and come to a different conclusion. All that this Court has to see is that the Public Prosecutor was
not actuated by extraneous or improper considerations while moving the application for withdrawal
from the prosecution. Even if it is possible to have another view different from the one taken by the
Public Prosecutor while moving the application for withdrawal from prosecution this Court should
be reluctant to interfere with the order unless it comes to the conclusion that the Public Prosecutor
has not applied his mind to the facts and circumstances of the case, and has simply acted at the
behest of the Government or has been actuated by extraneous and improper considerations. On the
facts and circumstances of the case it is not possible for me to hold that the Public Prosecutor was
actuated by oblique or improper motive.

148. In view of my finding that the criminal case against respondent 2 and others was instituted on
account of personal or personal or political vendetta at the instance of some disgruntled political
leaders, that no prima facie case of forgery or misconduct is made out on the materials on the
record, that the court's jurisdiction in dealing with the application under Section 321 of the Code is
only to see whether the Public Prosecutor had applied for withdrawal in the interest of public
justice, or he has done so actuated by improper or oblique motive, that a substantial amount of loan
has already been realised, that the continuance of the criminal case in the circumstances of this case
will be only an exercise in futility at the cost of public money and time, that the trial court as well as
the High Court were satisfied with the grounds for withdrawal taken by the Public Prosecutor, the
view taken by the trial court as well as the High Court in my opinion does not suffer from any
infirmity and is a just and proper one.

149. For the reasons given above the appeal must fail and it is accordingly dismissed.

Having regard to the majority Judgment [sic view] the appeal is dismissed.

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