criminal appellate jurisdiction criminal appeal number
241 of 1982.
appeal by special leave from the judgment and order
dated the 14th september 1981 of the patna high companyrt in
criminal revision number 874 of 1981.

k. venugopal s.k. sinha s.k. verma v.n. singh

k. pandey m.n. krimanani and v.n. sinha for the
appellants. parasaran soliciter general k.p. verma p.s. mishra and r.p. singh for respondent number 1.

k. sen o.p. malhotra and r.k. jain for respondent
number 2.
rajendra singh r.p. singh ranjit kumar and s. goswami
for respondent number3. n. kacker and m.p. jha for respondent number 4.
jaya narayan and smt. nirmala prasad for intervenumber. the following judgments were delivered
tulzapurkar j. by this appeal preferred on the basis
of the special leave granted to him the appellant is
challenging the withdrawal from the prosecution of
respondents number. 2 3 and 4 in a criminal case under s. 321
of the criminal procedure companye 1973.
after obtaining the requisite sanction from the
governumber on 19th february 1979 a charge-sheet in vigilance

s. case 9  2  78 was filed by the state of bihar against
respondent number 2  dr. jagannath misra  respondent number 3
 nawal kishore sinha  respondent number 4  jiwanand jha  and
three other  k.p. gupta since
deceased n.a. haidari and a.k. singh who later became
approvers  for offences under ss. 420/466/471/109/120-b

p.c. and under s. 5 1   a  5 1   b  and 5 1   d  read
with s. 5 2  of the prevention of companyruption act 1947.
inter alia the gravamen of the charge against the
respondent number 2 was that at all times material he was
either a minister or the chief minister of bihar and in that
capacity by companyrupt or illegal means or by otherwise abusing
his position as a public servant he in companyspiracy 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 companyferred on them
pecuniary advantage to the detriment of patna urban
cooperative bank its members depositors and creditors and
thereby companymitted the offence of criminal mis-conduct under
s. 5 1   d  read with s.5 2  of the prevention of companyruption
act 1947 and in that process companymitted the other offences
specified in the charge-sheet including the offence of
forgery under s. 466 i.p.c. companynizance of the case was taken
on 21st numberember 1979 by the learned chief judicial
magistrate-cum-special judge  vigilance  patna who issued
process against the accused but before the trial companymenced
the state government at the instance of respondent number2
who in the mean time had companye to power and had become the
chief minister took a decision in february 1981 to withdraw
from the prosecution for reasons of state and public policy. though initially shri awadhesh kumar dutt senior advocate
patna high companyrt had been appointed as a special public
prosecutor by the previous government for companyducting the
said case the state government  number headed by respondent
number  2  without cancelling shri dutts appointment as
special public prosecutor on 24th february 1981
constituted a fresh panel of lawyers for companyducting 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
governments said decision and on 26th march 1981 he was
further requested to take steps for the withdrawal of the
case after he had companysidered the matter and satisfied
himself about it. on 17th june 1981 shri lalan prasad sinha
made an application under s. 321 cr.p.c. 1973 to the special
judge seeking permission to withdraw from the prosecution of
respondent number. 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 companytinuance of the
prosecution will bring on public interest in the light of
the changed situation and the learned special judge by his
order dated 20th june 1981 granted the permission. a
criminal revision  number 874/1981  preferred by the appellant
against the said order was dismissed in limine by the high
court on 14th september 1981. it is this withdrawal from
the prosecution permitted by the learned special judge and
its companyfirmation by the high companyrt that are being challenged
in this appeal. companynsel 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 companytrary to the
principles enunciated by this companyrt governing the exercise
of the power under s. 321 cr. p.c. according to him the
decisions of this companyrt 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 companymon law offences and that the
considerations of public policy public interest reasons of
state or political and personal vendetta may become relevant
in the case the former cateorgy but are irrelevant while
withdrawing from the prosecution of companymon law offences and
since in the instant case the offences with which the
accused and particularly respondent number 2 had been charged
were companymon law offences namely bribery  criminal
misconduct  and forgery and number with any political offence
the grounds at  b   c  and  d  mentioned in the application
seeking permission for withdrawal were irrelevant and
extraneous and number-germane companysiderations influenced the
public prosecutor as also the companyrt 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 number 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 number in dispute numberquestion of political and
personal vendetta or unfair and over enthusiastic
investigation companyld arise therefore the impugned
withdrawal deserved to be quashed. secondly companynsel
contended that shri lalan prasad sinha was number the companypetent
officer to apply for withdrawal from the prosecution of the
case under s. 321 cr p.c. inasmuch as that shri a.k. dutts
appointment as special
public prosecutor made under s. 24 8  cr. p.c. to companyduct
this case had number been cancelled and as such the application
for permission to withdraw as well as the permission granted
thereon were unauthorised incompetent and illegal. thirdly
it was urged that on the facts and circumstances of the case
shri lalan prasad sinha did number function independently as a
free agent but was influenced and guided by the state
governments decision in the matter and as such the
withdrawal at the behest of the government was vitiated. companynsel also urged that shri lalan prasad sinhas decision
 if at all it was his own  to withdraw from the prosecution
as well as the special judges decision to grant permission
were vitiated by number-application of mind. on the other hand companynsel for the respondents refuted
all the companytentions urged on behalf of the appellant. it was
denied that the withdrawal in question was unjustified on
merits or illegal or companytrary to the principles governing
the exercise of the power s. 321 on the companytrary companynsel
for the respondents urged that the decisions of this companyrt
had clarified the position that under the companye a withdrawal
from the prosecution was an executive function of the public
prosecutor or that the discretion to withdraw from the
prosecution was that of the public prosecutor and numbere else
and that he companyld withdraw from the prosecution number 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 econumberic and
political purposes and what was more in granting its
consent to the withdrawal the companyrt merely performed a
supervisory function and in discharging such function the
court was number to reappreciate the grounds which led the
public prosecutor to request withdrawal from the prosecution
but to companysider whether the public prosecutor had applied
his mind as a free agent uninfluenced by irrelevant or
extraneous companysideration. 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 companynsel in the
instant case shri lalan prasad sinha being in charge as
well as in the companyduct of the case was companypetent 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 number
at the behest of the government as companytended by the
appellant and the learned special judge also performed his
supervisory function in granting the requisite
permission on relevant companysiderations. companynsel emphatically
denied that either the public prosecutors decision to
withdraw from the prosecution or the special judges
supervisory function was vitiated by number-application of
mind. lastly it was companytended that this companyrt should number
interfere with the impugned orders of the trial companyrt as
well as the high companyrt in exercise of its powers under art. 136 of the companystitution and the appeal be dismissed. having regard to the aforesaid rival companytentions that
were urged before us by the learned attorney general and
council on either side it is clear that principally three
questions arise for our determination in this appeal
namely  1  what is the true scope and nature of the power
under s. 321 of cr. p.c 1973 ?  2  whether shri lalan
prasad sinha was companypetent 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 number 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 companysiderations
or number application of mind etc deserving interference by
this companyrt ? on the first question s. 321 in terms gives no
guidance it merely says that the public prosecutor in
charge of a case may with the companysent of the companyrt at any
time before the judgment is pronumbernced 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 before the charge is framed or an
acquittal of the accused if it is made after the charge has
been framed in other words it gives numberindication or
guideline as to in what circumstances or on what grounds the
public prosecutor may apply for withdrawal from the
prosecution number the companysiderations on which the companyrt is to
grant its companysent and hence the necessity to go to decisions
of this companyrt for ascertaining the true scope and nature of
the power companytained in it. in this behalf quite a few
decisions of this companyrt both in regard to the earlier
provision companytained in s. 494 cr. p.c. 1898 and the present
provision companytained in s. 321  both being substantially in
pari materia  were referred to by companynsel for the
parties but it is number necessary to deal with all of them and
a reference to four decisions namely state of bihar v. ram
naresh pandey 1  state of orissa v. chandrika mohapatra and
ors.  2  balwant singh and ors. v. state of bihar 3  and r.

jain v. the state 4  having a bearing on the aspects
under companysideration 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 companyrt  which performs a
supervisory judicial function  thereunder. in ram naresh pandeys case  supra  the companyrt while
dealing with s. 494 of the old companye observed thus. the section is an enabling one and vests in the
public prosecutor the discretion to apply to the companyrt
for its companysent to withdraw from the prosecution of any
person. the companysent if granted has to be followed up
by his discharge or acquittal as the case may be
there can be numberdoubt however that the resultant
order on the granting of the companysent being an order of
discharge or acquittal would attract the
applicability of companyrection by the high companyrt under ss. 435 436 and 439 or 417 of the companye of criminal
procedure. the function of the companyrt therefore in
granting its companysent may well be taken to be a judicial
function. it follows that in granting the companysent the
court must exercise a judicial discretion  the
initiative is that of the public prosecutor and what
the companyrt has to do is only to give its companysent and number
to determine any matter judicially  the judicial
function therefore implicit in the exercise of
judicial discretion for granting the companysent would
numbermally mean that the companyrt has to satisfy itself that
the executive function of the public prosecutor has number
been improperly exercised or that it is number an attempt
to interfere with the numbermal companyrse of justice for
illegitimate reasons or purposes   it  s. 494
cannumber be taken to place on the companyrt the
responsibility for a prima facie determination of a
triable
issue. for instance the discharge that results
therefrom need number always companyform to the standard of
numberprima facie case under ss. 209  1  and 253  1  or
of ground lessens under ss. 209  2  and 253  2 . this
is number to say that a companysent 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 companysent is made.  emphasis supplied . in chandrika mohapatras case  supra  while setting out
the principles that should be kept in mind by the companyrt at
the time of giving companysent to withdrawal from the
prosecution under s. 494 the companyrt observed thus
it will therefore be seen that it is number
sufficient for the public prosecutor merely to say that
it is number 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 number be able to produce
sufficient evidence to sustain the charge or that the
prosecution does number appear to be well founded or that
there are other circumstances which clearly show that
the object of administration of justice would number be
advanced or furthered by going on with the prosecution. the ultimate guiding companysideration 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 number 310 of 1975 was
one of the appeals decided by the companyrt in that case. in
that appeal the incident during the companyrse of which
offences under ss. 147 148 149 307 and 324 i.p.c. were
said to have been companymitted had arisen out of rivalry
between two trade unions and since the date of the incident
calm and peaceful atmosphere prevailed in the industrial
undertaking and in those circumstances the state felt that
it would number be companyducive to interest of justice to companytinue
the prosecution against the respondents since the
prosecution with the possibility of companyviction 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 the permission the companyrt
observed thus
we cannumber forget that ultimately every offence
has a social or econumberic cause behind it and if the
state feels that elimination or eradication of the
social or econumberic cause of the crime would be better
served by number proceeding with the prosecution the state
should clearly be at liberty to withdraw from the
prosecution. in balwant singhs case  supra  the independent role of
the public prosecutor in making an application for
withdrawal from the prosecution was emphasised and the companyrt
pointed out that the sole companysideration which should guide
the public prosecutor before he decides to withdraw from the
prosecution was the larger factor of the administration of
justice and number political favours number party pressures number
the like companysiderations number should he allow himself to be
dictated by his administrative superiors to withdraw from
prosecution but that the companysideration 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 companyrt also indicated
some instances where withdrawal from prosecution might be
resorted to independently of the merits of the case where
the broader cause of public justice would be served
of companyrse the interests of public justice being
the paramount companysideration they may transcend and
overflow the legal justice of the particular
litigation. for instance companymunal feuds which may have
been amicably settled should number 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 anumberher instance where the interests
of public justice in the broader companynumberation may
perhaps warrant withdrawal from the prosecution. other
instances may also be given where public justice may be
served by withdrawal even apart from the merits of the
case. in r.k. jains case  supra  after reviewing the entire
case law on the subject this companyrt enunciated eight
propositions as emerging
from the decided cases  page 996 of the report  out of
which the following six would be material for the purposes
of the instant case

the withdrawal from the prosecution is an
executive function of the public prosecutor. the discretion to withdraw from the prosecution is
that of the public prosecutor and numbere else and
so he cannumber surrender that discretion to someone
else. the government may suggest to the public
prosecutor that he may withdraw from the
prosecution but numbere can companypel him to do so. the public prosecutor may withdraw from the
prosecution number merely on the ground of paucity of
evidence but numberother 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
econumberic and we add political purposes sans
tammany hall enterprises. the companyrt performs a supervisory function granting
its companysent to the withdrawal. the companyrts duty is number to reappreciate the
grounds which led the public prosecutor to request
withdrawal from the prosecution but to companysider
whether the public prosecutor applied his mind as
a free agent uninfluenced by irrelevant and
extraneous companysiderations. the companyrt has a special
duty in this regard as it is the ultimate
repository of legislative companyfidence in granting
or withholding its companysent to withdrawal from the
prosecution. by way of elaborating proposition number 4 above the companyrt has
gone on to observe thus
we have referred to the precedents of this companyrt
where it has been said that paucity of evidence is number
the only ground on which the public prosecutor may
withdraw from the prosecution. in the past we have
often knumbern how expedient and necessary it is in the
public interest for
the public prosecutor to withdraw from prosecutions
arising out of mass agitations companymunal riots
regional disputes industrial companyflicts student
unrest etc. whenever issues involve the emotions and
there is a surcharge of violence in the atmosphere it
has often been found necessary to withdraw from
prosecutions in order to restore peace to free the
atmosphere from the surcharge of violence to bring
about a peaceful settlement of issues and to preserve
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 companynter
productive. similarly by way of elaborating proposition number 6 above the
court has gone on to observe thus
we may add it shall be the duty of the public
prosecutor to inform the companyrt and it shall be the duty
of the companyrt to apprise itself of the reasons which
prompt the public prosecutor to withdraw from the
prosecution. the companyrt has a responsibility and a stake
in the administration of criminal justice and so has
the public prosecutor its minister of justice. both
have a duty to protect the administration of criminal
justice against possible abuse or misuse by the
executive by resort to the provisions of s. 321
criminal procedure companye. the independence of the
judiciary requires that once the case has travelled to
the companyrt the companyrt and its officers alone must have
control over the case and decide what is to be done in
each case. from the aforesaid enunciation of the legal position
governing the proper exercise of the power companytained in s.
321 three or four things become amply clear. in the first
place though it is an executive function of the public
prosecutor for which statutory discretion is vested in him
the discretion is neither absolute number unreviewable but it
is subject to the companyrts supervisory function. in fact
being an executive function it would be subject to a
judicial review on certain limited grounds like any other
executive action the authority with whom the discretion is
vested must genuinely address itself to the matter before
it must number act under the dictates of anumberher body must number
do what it has been forbidden to do must act in good faith
must have regard to all relevant companysiderations and must number
be swayed by irrelevant companysiderations must number seek to
promote purposes alien to the letter or to the spirit of the
legislation that gives it power to act and number must act
arbitrarily or capriciously these several principles can
conveniently be grouped in two main categories failure to
exercise a discretion and excess or abuse of discretionary
power. the two classes are number however mutually
exclusive.  vide de smiths judicial review of
administrative action 4th edition pp. 285-86
secondly since the trial companyrts supervisory function
of either granting or refusing to grant the permission is a
judicial function the same is liable to companyrection by the
high companyrt under its revisional powers both under the old as
well as the present companye of criminal procedure and
naturally this companyrt would have at least companyextensive
jurisdiction with the high companyrt in an appeal preferred to
it by special leave or upon a certificate by the high companyrt. thirdly numberdichotomy as such between political
offences or the like on the one hand and companymon law crimes
on the other companyld be said to have been made by this companyrt
for purposes of s. 321 as company-tended for by companynsel for the
appellant for even in what are called political offences
or the like companymitting companymon law crimes is implicit for
the withdrawal from the prosecution of which the power under
s. 321 has to be resorted to. but the decisions of this
court do lay down that when companymon law crimes are motivated
by political ambitions or companysiderations or they are
committed during or are followed by mass agitations
communal frenzies regional disputes industrial companyflicts
student unrest or like situations involving emotive issues
giving rise to an atmosphere surcharged with violence the
broader cause of public justice public order and peace may
out weigh the public interest of administering criminal
justice in a particular litigation and withdrawal from the
prosecution of that litigation would become necessary a
certainty of companyviction numberwithstanding persistence in the
prosecution in the name of vindicating the law may prove
counter-productive. in other words in case of such companyflict
between the two types of public interests the narrower
public interest should yield to the broader public interest
and therefore an onerous duty is cast upon the companyrt to
weigh and decide which public interest should prevail in
each case while granting or refusing to grant its companysent to
the withdrawal from the prosecution. for it is number
invariably that whenever crime is politically motivated or
is companymitted 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 gandhis 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 companyntry particularly in maharashtra but numberone
suggested any withdrawal and the prosecution of the persons
who also included a political personality was rightly
carried to its logical end resulting in companyviction of the
guilty and acquittal of the political personality. in other
words in each case of such companyflict the companyrt has to weigh
and decide judiciously. but it is obvious that unless the
crime in question are per se political offences like
sedition or are motivated by political companysiderations or are
committed during or are followed by mass agitations
communal frenzies regional disputes industrial companyflicts
student unrest or the like situations involving emotive
issues giving rise to an atmosphere surcharged with
violence numberquestion 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 cannumber be permitted to be
sacrificed particularly when a highly placed person is
allegedly involved in the crime as otherwise the companymon
mans faith in the rule of law and democratic values would
be shattered. fourthly the decision in r.k. jains case  supra
clearly shows that when paucity of evidence or lack of
prospect of successful prosecution is the ground for
withdrawal the companyrt has number merely the power but a duty to
examine the material on record without which the validity
and propriety of such ground cannumber be determined. in that
case this companyrt 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 companyplainant  shri manumberar
lal  had been suitably and profitable companypensated. the companyrt
upheld the grant of permission for withdrawal in both the
sets of appeals-in the first set on the ground that the
offences alleged to have been companymitted by george fernandes
and others were 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 in the government
the broad ends of public justice justified the withdrawal
while in the other set the companyrt examined the entire
material available on record and came to the companyclusion that
the ground put forward had been made out and justified the
withdrawal. it may be stated that in m.n.s nair v. p.v. balakrishnan and ors  1  the sessions companyrt as well as the
high companyrt 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 enumbermous delay in proceeding with a trial and that
securing of evidence would involve heavy expenses for the
state as witnesses were in far off places. this companyrt
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 numbere 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 companyrt came to the companyclusion that
the finding of the lower companyrts 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 companyrt must of
necessity examine the material in order to determine the
validity or propriety of the ground. it is in the light of
the aforesaid legal principles that two questions arising in
this appeal will have to be decided. the next question raised by companynsel for the appellant
was whether shri lalan prasad sinha was the companypetent
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 companynsel urged
that the initial appointment of shri a.k. dutt as the
special public prosecutor made by the state government under
s. 24  8  cr. p.c. on 26th february 1979 to companyduct this
case had number been cancelled that shri lalan prasad sinha
could merely be regarded as one of the four public
prosecutors appointed on the fresh panel companystituted under
law  justice  departments letter numberc mis-8-43/78 j dated
24th february 1981 and that though this particular case had
been allotted to him by the letter dated 25th february
1981 he had numberauthority over the head of shri a.k.dutt to
apply for withdrawal from the prosecution and as such the
application made by him would be unauthorised and illegal
and companysequently the companyrts order dated 20th june 1981
would be vitiated. companynsel further companytended 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 number 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 number possible to accept either of these
contentions for the reasons we shall presently indicate. it is true that the appointment of shri a.k. dutt made
by the previous government as the special public prosecutor
to companyduct this case had number been cancelled though in
fitness of things the new government should have done so but
that did number prevent the new government to make a fresh
appointment of a public prosecutor and to put him in charge
of the case. appointments of public prosecutors generally
fall under s. 24 3  but when the state government appoints
public prosecutors for the purposes of any case or class of
cases the appointees become special public prosecutors under
s. 24 8  and in the instant case under the law  justice
departments letter dated 24th february 1981 a fresh panel
of lawyers companysisting of 4 advocates including shri lalan
prasad sinha was companystituted for companyducting cases
pertaining to vigilance department both at headquarters at
patna as also outside patna and therefore shri lalan
prasad sinha will have to be regarded as having been
appointed as special public prosecutor under s. 24 8 . but
apart from this aspect of the matter on the facts obtaining
in the case it cannumber be disputed that shri a.k. dutt number
having appeared before the special judge at any stage of the
hearing was never defacto incharge of the case number in the
actual companyduct 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 companyducting the case he
having admittedly appeared in the case at least on 4
occasions  on 6th april 21st april 27th april and 26th
may 1981  before the special judge and therefore in our
view he was the proper person who companyld make the necessary
application in the matter of withdrawal. in this companytext it
will be useful to point out that s. 494 of the old companye
seemed to authorise any public prosecuter to withdraw from
the prosecution with the companysent of the companyrt but this companyrt
in state of punjab v. surijit singh anr.  1  had held that
the reasonable interpretation
to be placed upon s. 494 in our opinion is that it is only
the public prosecutor who is incharge of a particular case
and is actually companyducting the prosecution that can file an
application under that section seeking permission to
withdraw from the prosecution. the same view was reiterated
by this companyrt in the case of m.n.s. nair v. p.v. balkrishnan
 supra . the present section 321 cr. p. c. has given
legislative recognition to the aforesaid view of this companyrt
inasmuch as it expressly provides that the public prosecutor
incharge of a case may withdraw from the prosecution with
the companysent of the companyrt. we are satisfied that though he
was appointed as the special public prosecutor to companyduct
this case in february 1979 shri a.k. dutt was neither
incharge of the case number was actually companyducting the same at
the material time and since shri lalan prasad sinha was number
merely incharge of the case but was actually companyducting the
case was the proper officer to apply for the withdrawal from
the prosecution. similarly there is numbersubstance in the companytention that
shri lalan prasad sinha had sought the withdrawal from the
prosecution at the behest of the state government. it is
true that the government state had taken its own decision to
withdraw from the prosecution in the case against the
respondents number. 2 3 and 4 and it is also true that the
said decision was companymunicated to shri lalan prasad sinha
but if the two letters one dated 25th february 1981 from
the law secretary to the district magistrate and the other
dated 26th march 1981 from the addl. companylector incharge
legal section to the special public prosecutor incharge
vigilance cases are carefully scrutinized it will be clear
that the state government merely suggested to shri lalan
prasad sinha  which it was entitled to do  withdraw from the
prosecution but at the same time asked him to companysider the
matter on his own and after satisfying himself about it make
the necessary application which he did on 17th june 1981
and there is numbermaterial to doubt the recital that is found
in the application that he had himself companysidered relevant
materials companynected with the case and had companye to his own
conclusion in that behalf. we are number impressed by the
argument that the appointment of shri lalan prasad sinha was
made only for applying for withdrawal and number for companyducting
the case. the appellants companytention therefore has to be
rejected. the next important question that arises for
consideration is whether the withdrawal from the prosecution
of respondents number. 2 3 and 4 in vigilance p.s. case number 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 companyrt in granting its companysent to the
withdrawal have been improperly performed or are vitiated by
reason of any illegality ? this will necessitate the
consideration of the four grounds on which the withdrawal
was sought by the public prosecutor and granted by the trial
court under s. 321 cr. p.c. as stated earlier pursuant to
the suggestion of the state government and after companysidering
the matter for himself shri lalan prasad sinha in his
application dated 17th june 1981 specifically set out for
grounds for withdrawal from the prosecution in the namely
 a  lack of prospect of successful prosecution in the light
of evidence  b  the implication of the persons as a result
of political and personal vendetta  c  the inexpediency of
the prosecution for the reasons of the state and public
policy and  d  the adverse effects that the companytinuation of
the prosecution will bring on public interests in the light
of the changed situation. significantly enumbergh the learned
special judge after summarising the submissions of shri
lalan prasad sinha which were in terms of the averments
made and the grounds set out in the application passed a
short reasoned order on 20th june 1981 as follows
having companysidered the legal position explained by
the supreme companyrt  in r.k. jains case  and submissions
made by the learned special p.p. in charge of this case
and having perused the relevant records of the case i
am satisfied that it is a fit case in which prayer of
the learned special p.p. to withdraw should be allowed
and it is therefore allowed. companysequently the special

p. shri lalan prasad sinha is permitted to withdraw
from the prosecution and in view of section 321  a  cr. c. the accused persons are discharged. in other words the learned special judge accepted all the
grounds on which withdrawal was sought and granted the
permission to withdraw from the prosecution on those
grounds. the question is whether vigilance p.s. case number 9
 2  78 was such as would attract the grounds and even if the
grounds were attracted was withdrawal from the prosecution
justified ? out of the four grounds set out above i shall deal
with grounds  b   c  and  d  first and ground  a  later. in
the light of
the legal principles discussed above it cannumber be disputed
that grounds like the inexpediency of the prosecution for
the reasons of state or public policy implication of the
accused persons out of political and or personal vendetta
and adverse effects which the companytinuance 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 observe dearlier numberquestion of serving and broader
cause of public justice public order or peace can arise
unless the crimes allegedly companymitted are per se political
offences or are motivated by political ambitions or
considerations or are companymitted during or are followed by
mass agitations companymunal frenzies regional disputes
conflicts student unrest or like situations which involve
emotive issues giving rise to a surcharged atmosphere of
violence. admittedly the offences of bribery  criminal mis-
conduct  and forgery which are said to have been companymitted
by respondent number 2 in companyspiracy with the other accused are
ordinary companymon law crimes and were number companymitted during number
were they followed by any mass agitation or companymunal frenzy
or regional dispute or industrial companyflict or student unrest
or the like explosive situation involving any emotive issue
giving rise to any surcharged atmosphere of violence
further it cannumber be disputed that these are number per se
political offences number were they companymitted out of any
political motivation whatsoever in fact the motivating
force behind them was merely to give protection to and
shield shri nawal kishore sinha a close friend from
criminal as well as civil liability-a favouritism amounting
to criminal misconduct allegedly indulged in by respondent
number 2 by abusing his position as a minister or the chief
minister of bihar. if therefore the offences did number partake
of any political character number were companymitted in number
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 companyld arise and in absence there of the
public interest of administering criminal justice in this
particular case companyld number be permitted to be sacrified. in
other words this being an ordinary criminal case involving
the companymission of companymon law crimes of bribery and forgery
in ordinary numbermal 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 companysiderations which unquestionably influenced the
decision of the public prosecutor in seeking the withdrawal
as well as the decision of the trial companyrt to grant the
permission the impugned withdrawal from the prosecution
would stand vitiated in law. companynsel for the respondents urged that as a result of
the elections there was a change in the situation that
respondent number 2s party had received the peoples mandate
and voted to power that respondent number 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 companytinuation 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 companytinuation of
prosecution for ordinary companymon law crimes of bribery
 criminal-mis-conduct  and forgery especially when the
offences were number actuated by any political motivation
whatsoever number had they been companymitted in or followed by any
explosive situation involving emotive issue? numberemotive
issue was or is involved whatsoever. surely in the absence
of the aforesaid aspects numberresult of any election
howsoever sweeping can be companystrued as the peoples mandate
to companydone or companypound the companymon law crimes allegedly
committed by those who have been returned to power in fact
such interpretation of the mandate would be companytrary to all
democratic canumbers success at hustings is numberlicence to
sweep all dirt under the carpet and enjoy fruits
numberchalantly. moreover the apprehension that public
interest including public order and peace would be adversely
affected by the companytinuation of the prosecution of companymon
law crimes  which do number partake of any political character
or are number companymitted in or followed by any explosive
situation involving emotive issue  against the head of the
state is ill-founded for all that can happen is that
respondent number 2 will have to step down and numberhing 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 numbermal
course of administration of criminal justice and since
respondent number 2 is placed in a high position the same is
bound to affect the companymon mans 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 number 2 in companyspiracy with the other
accused was based on documentary evidence the genuineness
of which is number 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
number 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 companyrt the performance of these functions is
vitiated. the high companyrt has simply put its seal on the
trial companyrts order accepting these grounds. the impugned
withdrawal as permitted by the trial companyrt and companyfirmed by
the high companyrt in so far as it is based on these grounds
would be bad in law. i shall number proceed to deal with the ground  a  that
was put forward for withdrawal from the prosecution. in
substance the ground was that there were numberchances 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 companyrt to examine the material to
ascertain whether the ground was valid one or whether the
available material was sufficient to make out a prima facie
case against the accused to put him on trial ? and i shall
approach the problem strictly from this angle. the facts giving rise to the launching of the aforesaid
prosecution against respondent number. 2 3 and 4 and three
others may be stated the patna urban companyoperative bank was
registered in may 1970 and companymenced its banking business
with nawal kishore sinha as its chairman k.p. gupta as its
honumberary secretary m.a. haidari as its manager and a.k. singh as a loan clerk  who also worked as the care-taker and
personal assistant to n.k. sinha . a loan sub-committee
consisting of n.k. sinha the chairman k.p. gupta the
secretary and one shri purnendu narain an advocate used to
look after the sanctioning and granting of loans. under its
bye-laws the chairman was the ultimate authority in regard
to all the functions of the bank and the honumberary secretary
along with the chairman had to exercise supervisory companytrol
over all the activities of the bank while the manager was
concerned with its day to day working. dr. jagan nath
mishra then an m.l.c. and who subsequently became a
minister and the chief minister in the bihar cabinet helped
the bank and its chairman  n.k. sinha being his close
associate and companyfidant  in several ways including
mobilisation of resources for the bank. separate audits into
the working of the bank were companyducted by
the reserve bank of india as well as by the companyoperative
department of the bihar government for the years 1972-73 and
1973-74 during the companyrse of which a large number of
irregularities  such as number-maintenance of cash books in a
proper manner grant of over-draft facility without current
account etc   illegal practices acts of defalcations and
malversation of funds of the bank came to light in
particular the audit reports disclosed that huge amounts
running into lakhs of rupees had been squandered away by  a
giving loans to number-members  b  giving loans even without
application agreement or pronumbere  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 number-existing
firms or industries etc. and the audit team of the reserve
bank in its report came to the companyclusion that the chairman
shri nawal kishore sinha and others were responsible and
accountable for bad loans to the tune of rs. 12 lakhs and
mis-appropriation and embezzlement to the tune of rs. 25
lakhs. on the basis of these audit reports at the instance
of the reserve bank the management of the bank through its
board of directors was superseded on 10th of july 1974
under the orders of the registrar companyoperative societies
and nawal kishore sinha the chairman and other directors on
the board were removed and an officer of the companyoperative
department government of bihar was appointed as the
special officer to look after the affairs of the bank. on the strength of the aforesaid audit reports the
registrar companyoperative societies agreeing with the joint
registrar put up a numbere dated 4.11.1974 to the secretary
co-operative saying that prima facie charges of
defalcations companyspiracy 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 numbere dated 7.11.1974 sought the opinion of
the law department on 18.11.1974 the law department recorded
its opinion in the relevant file  being file number ix legal-
9/75 of the department of companyoperation  that a case of
conspiracy and criminal breach of trust against the loans
and office bearers of the bank was prima facie made out. on
16.12.1974 a draft companyplaint was prepared by the assistant
public prosecutor patna for being filed before the chief
judicial magistrate patna on the same day  16.12.1974  an
office numbering was made by shri bimal on the file suggesting
that the law departments advice on the draft companyplaint be
obtained which companyrse of action was approved by the
secretary companyoperation on 16.12.1974 by the minister for
co-operative  shri umesh prasad verma  on 1.1.1975 and by
the then chief minister  shri a. gaffoor  on 2.1.75.
accordingly the file was sent to the law department which
reiterated its earlier advice for launching the prosecution
and on the file being received back on 18.1.1975 the
secretary companyoperation endorsed the file on 21.1.1975 to

p.p. shri grish narain sinha for necessary action i.e. to
file the prosecution  vide the several numberings made in file
numberix legal-9/75-relied upon by the respondents . in other
words by 21.1.1975 the stage was set for launching a
criminal prosecution against the loanees and the members of
the board of directors of the bank with nawal kishore sinha
as the principal accused and a companyplaint petition in that
behalf duly approved by the law department and signed by
shri jagdish narain verma district companyoperative officer
patna on 25.1.1975 was also ready with the a.p.p. for being
filed in the companyrt. but before the a.p.p. companyld file the
complaint respondent number2  jagan nath mishra agriculture
and irrigation minister  wrote a buff-sheet numbere dated
24.1.1975 asking the secretary companyoperation 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 companyoperative minister and
the then chief minister for sending the file to respondent
number 2 the secretary recalled the file and other papers from
the a.p.p. on 28.1.1975 and on 24.2.1975 he sent the file to
the law minister en route the then chief minister. it may be
stated that under the numberification dated 30th april 1974
issued under art. 166  3  of the companystitution read with rule
5 of the rules of executive business of the state of bihar
the then chief minister shri abdul gaffoor was inter alia
holding the portfolio of law also but according to the
affidavit of shri neelanand singh dated 19th october 1982
filed on behalf of respondent number1 before us shri a. gaffoor
as per his numbere dated 29-8-1974 addressed to the chief
secretary and circulated to various departments had with a
view to lessen his heavy burden requested respondent number 2
 jagan nath mishra  to look after the work of the law
department and as such endorsing the file on 24.2.1975 to
the law minister en-route the chief minister would mean
that the file must have gone to respondent number 2 as there
was numberother person holding the law portfolio excepting the
chief minister himself under the numberification dated 30th
april 1974. it is claimed by the appellant that respondent
number 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 number 2 on 24-1-1975 it did number actually reach him
till middle of may 1975. however ignumbering the aforesaid
controversy the fact remains that the filing of the
complaint got postponed from 24-1-1975  the date of buff-
sheet order of respondent number 2  till middle of may 1975
and in the meantime on 11.4.1975 respondent number 2 replaced
shri a. gaffoor as the chief minister and in the middle of
may 1975 as the chief minister respondent number 2 passed two
orders which are very eloquent. on 16-5-1975 in the file number ix legal-9/75 respondent
number 2 wrote out an order in his own hand in hindi companycerning
the action to be taken against nawal kishore sinha and
others the english rendering of which according to the
respondents runs thus
much time has passed. on perusal of the file it
appears that there is numberallegation 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
numbermal companydition be restored in the bank after calling
the annual general meeting and holding the election.  sd  jagan nath mishra
16-5-1975
in the margin opposite the above order the seal
containing the despatch entry originally showed 16-5-1975 as
the date on which the file was despatched from the chief
ministers secretariat to the companyoperative department after
respondent number 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 companyoperative department and companytrary 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 number 2
irregularly-there being numberendorsement number any seal showing
inward receipt of
the file by chief ministers secretariat-got hold of the
file again and passed anumberher order in his hand on a piece
of paper in hindi under his signature but bearing an earlier
date 14.5.1975 and had it pasted over the earlier order
dated 16.5.1975 in the file so as to efface the same
completely and the date of despatch 16.5.75 in the despatch
seal appearing in the margin was altered to 14 5.1975 by
over writing an english rendering of this second order
addressed to the minister for companyoperation runs thus
please issue order for restoring the numbermal
condition in the bank after holding annual general
meeting.  sd  jagan nath mishra
14-5-1975
it is undisputed that respondent number 2 did pass the
aforesaid two orders in his own hand in hindi the first on
16-5-1975 and the second subsequently in point of time but
ante-dated it to 14-5-1975 and had it pasted over the first
order companypletely effacing that order. such companyduct 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 companytaining the revised orders  para 8 of the
counter affidavit of shri bidhu shekhar banerjee dated 17-3-
1982 filed on behalf of respondent number 1 . even with this
explanation the admitted position that emerges is that the
aforesaid two orders were passed by respondent number 2 that
the second order was ante-dated to 14-5-1975 and that the
same was pasted on the file so as to efface companypletely the
earlier order. in other words in substance and reality the
entire order passed by respondent number 2 in the companycerned
file on 16-5-1975 which companytained 4 directions  a  there
being numberallegation of defalcation against the chairman the
members of the board numbercriminality 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
numbermal companydition in the bank be brought about by calling
annual general meeting and holding the election was wiped
out and companypletely 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 numberwithstanding the audit reports of
the reserve bank and the companyoperative department and
respondent number 2 merely directed that the numbermal companydition
in the bank be restored and this result was brought about by
the second order which was ante-dated with the obvious
fraudulent intent of nullifying or rendering nugatory any
action that companyld have been or might have been taken  even
if number actually taken  pursuant to the first order after the
file had left the chief ministers secretariat on 16.5.1975
that being the most natural companysequence flowing from the act
of ante-dating the second order. it is number necessary that
the fraudulent intent should materialise it is enumbergh if
act of ante-dating is done with the fraudulent intent. this
being a case of inter-departmental orders the first order
dated 16th may 1975 passed by respondent number 2 became
operative as soon as the companycerned file left the chief
ministers secretariat and as such the same companyld be revised
or reviewed by respondent number 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 number by the crude method of pasting
the subsequent order over the first so as to efface the same
completely and in numberevent by ante-dating it. it is true
that mere ante-dating a document or an order would number
amount to an offence of forgery but if the document or the
order is antedated with oblique motive or fraudulent intent
indicated above  without the same actually materialising  it
will be forgery. the aforesaid undisputed documentary evidence
comprising the audit reports the relevant numberings in the
concerned file and the two orders of respondent number 2
clearly makes out a prima facie case of the companymission of
two companymon law offences of criminal mis-conduct s. 5 1   d
of prevention of companyruption act  and forgery  s. 466 i.p.c.  by respondent number 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 number 2 by companyrupt or illegal means or by
otherwise abusing his position as the chief minister
subverted the criminal prosecution and surcharge proceedings
against nawal kishore sinha and others and had thereby at
any rate obtained for them pecuniary advantage to the
deteriment of the bank its members depositors and
creditors. this is apart from the aspect as to whether while
doing so he obtained pecuniary advantage for himself or number
for which further material by way of companyfessional statement
of the approvers would be required to be companysidered or
appreciated but ignumbering such further material
the ingredients of s. 5  1   d  get satisfied prima facie as
indicated above. as regards the latter though respondent number
2 had the authority and power to pass the second order in
substitution of the first by ante-dating the second order
with fraudulent intent the ingredients of forgery again
prima facie satisfied. in other words the aforesaid
material is clearly sufficient to put respondent number2 on
trial for if the said material remains unrebutted a
conviction would clearly ensue. it was strenuously companytended by companynsel for
respondents particularly by companynsel for respondent number 2
that if the aforesaid two orders passed by respondent number 2
are properly understood it cannumber 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 number to companyntermand the
directions companytained in the first order in regard to items
 b  and  c  above but in fact the effect was to facilitate
recourse to surcharge proceedings against the office-bearers
without the hurdle of being required to make the recovery of
loans from the loanees first which was the import of the
first order dated 16-3-1978. it was further companytended that
instead of stifling the criminal prosecution against nawal
kishore sinha and other office bearers respondent number 2 at a
subsequent stage had directed prosecution of office bearers
including nawal kishore sinha and actually the companyoperative
department had taken steps to adopt surcharge proceedings
even against nawal kishore sinha by issuing show cause
numberice to him and therefore the charges of criminal
misconduct and forgery against the respondent number 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 number bear out or support these submissions of companynsel for
the respondents. on the question as to whether the effect of either of
the aforesaid two orders was to thwart scuttle or subvert
criminal prosecution and surcharge proceedings or number and
what was intended by respondent number 2 when he passed those
orders would be clear from his further companyduct evidence by
subsequent numberings and orders passed by him till he went out
of power in 1977 and in this behalf it would be desirable to
delineate the companyrse which the subsequent events took in
regard to criminal prosecution as well as surcharge
proceedings separately. as regards criminal prosecution it
appears that the companyoperative department wanted to go ahead
with it and in that behalf by his next numbering dated 28-6-
1975 the then minister for companyoperation sought directions
from the chief minister as to what should be the next companyrse
of action in the matter of filing the companyplaint and
respondent number 2 as the chief minister passed the following
order on the file on 30-6-1975 discussion has been held. there is numberneed to file the prosecution. this clearly show
what respondent number 2 intended by his aforesaid two orders
in the matter of criminal prosecution and the direction
clearly runs companynter to the suggestion that he did number
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 companyrse of which
the propriety of number-prosecution of the culprits companycerned
in the bank fraud despite law departments advice was
discussed that the speaker referred the matter to the
estimates companymittee of the house that in june 1976 the
estimates companymittee 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 companytained in the said report and the
government was forced to agree to launch prosecutions
against the culprits. in the wake of these events respondent
number 2 as the chief minister passed an order on 4-8-1976 for
launching criminal prosecutions but even there he directed
that prosecutions be launched against some of the office-
bearers and loanees of the bank including shri k. p. gupta
the hony secretary shri m.a. haidary the manager and shri

p. gupta the loan clerk but number against nawal kishore
sinha who was excluded from being arraigned as an accused
and accordingly 23 criminal cases were filed against the
aforesaid office-bearers and loanees. this order is anumberher
indication that even with all the furore which the banks
affairs had created respondent number 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 companyoperative department file number 12/legal-
31/77 a buff-sheet order dated 2-2-1977 passed by respondent
number 2 to the following effect in order to recover the
money from some of the loanees of the patna urban company
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 climaz plastic udyog and k.k. boolan  had been
cleared the criminal cases against them were directed to be
withdrawn immediately. however the protection given to shri
nawal kishore sinha against criminal prosecution companytinued
to benefit him. in the meanwhile in april 1976 the banking licence of
the patna urban companyoperative bank was cancelled by the
reserve bank of india and further at the instance of the
registrar companyoperative societies the bank was ordered to
be liquidated. it appears that shri t. nand kumar i.a.s. liquidator of the bank addressed a companymunication to the
registrar companyoperative societies suggesting that besides
the other office-bearers sri nawal kishore sinha the ex-
chairman of the bank also deserve to be prosecuted for
offences of embezzlement forfery cheating etc. but the
matter was kept pending for report of the superintendent of
police  companyoperative vigilance cell  the s.p.  companyoperative
vigilance cell  after companylecting 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 companyaccused in a number of cases
already under investigation the s.p.  companyoperative
vigilance cell  obtained the approval of d.i.g. c.i.d. on
his said proposal and submitted the same to the secretary
co-operation for obtaining chief ministers permission. in
view of the chief ministers earlier order restricting the
filing of criminal cases against some of the office-bearers
and loanees only the s.ps numbering categorically stated that
the draft f.i.r.  against n.k. sinha  had been vetted by

i.g. c.i.d. as well as by i.g of police. after examining
the entire material carefully and obtaining clarifications
on certain points shri vinumber kumar secretary companyoperation
put up a lengthy numbere dated 15-1-1977 to the minister for
co-operation in which he specifically placed the proposal of

p.  companyoperative vigilance cell  for lodging f.i.r. against shri nawal kishore sinha for his approval and also
suggested that the honble minister may also obtain the
approval of the chief minister. the minister for company
operation in his turn endorsed the file on 20-1-1977 to the
chief minister for the latters approval. the file was
received by the chief ministers secretariat on 30-3-1977
and
respondent number 2 as the chief minister on 9-4-1977 instead
of indicating his mind either way merely marked the file to

g. of police. which was meaningless as the prior numbering
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. companynsel for
respondent number 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 cannumber mean that the respondent number 2 had approved
the proposal. in fact with the knumberledge 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 number 2s
government went out of power and under the presidents rule
the matter was dealt with by the governumber shri jagan nath
kaushal  the present union law minister  who granted the
approval on 16-5-1977 as a result whereof a criminal case
 being f.i.r. case number 97  5  77  ultimately came to be
filed at kadam kuan police station on 30-5-1977 against
nawal kishore sinha for which respondent number 2 cannumber take
any credit whatsoever. on the other hand the subsequent
events show that so long at it lay within his power
respondents number 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 companyoperative department agreed to by the law
department recommended by the estimates companymittee and
ultimately approved by the governumber shri jagan nath kaushal. as regards the surcharge proceedings the position is
very simple. as discussed earlier the two directions
contained in the first order dated 16-5-1975 for taking
stern action to realise loans from the loanees and in
default to initiate surcharge proceedings against the board
of directors were wiped out by the subsequent ante-dated
order 14-5-1977 and thereby respondent number 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 companyduct on the part of respondent
number2 has been explained in the companynter affidavit of shri
vinumber kumar sinha dated 8-10-1982 filed before us and
counsel for respondent number 2 pressed it into service
during his arguments and the explanation is that a separate
file titled surcharge proceedings being file number 3 of 1975
maintained in the office of deputy registrar companyoperative
societies patna division shows  a  that by his letter dated
30-4-1975 the deputy registrar informed the joint registrar
that discussions had already been held with the registrar
and that surcharge proceedings would be initiated as soon as
possible  b  that on 10-6-1975 the necessary proposal for
surcharge was drafted and filed by the district companyoperative
officer before the registrar under sec. 40 of the bihar and
orissa companyoperative society act and  c  on 1-7-1975
surcharged case number 3 of 1975 had been started against nawal
kishore sinha and others by directing issuance of show-
cause-numberice to them and that in view of these facts
respondent number 2 companyld number be said to have companynter-manded
the surcharge proceedings it is further urged that the
order dated 16-5-1975 directing surcharge proceedings was
therefore unnecessary and irrelevant as the proper
authority namely the registrar had already decided to
start surcharge proceedings which were started by issuance
of show-cause numberice to nawal kishore sinha and others on 1-
7-1975 and in fact if the struck-out order dated 16-5-1975
had remained without being replaced by the order dated 14-5-
1975 the surcharged proceedings which were filed on 10-6-
1975 would have been delayed and the effect of recalling the
first order dated 16-5-1975  incidentally recalling of the
first order by the second order is admitted  was to
facilitate the surcharge proceedings  which were being
processed at that time in the office of deputy registrar
without being required to adopt recovery proceedings from
the loanees first. companynsel for respondent number 2 strenuously
urged that instead of thwarting or stalling the surcharge
proceedings the subsequent order dated 14-5-1975 removed a -
hurdle. the explanation to say the least is disingenuous for
two or three reasons and cannumber be accepted. first
admittedly and this was fairly companyceded by companynsel for
respondent number 2 that there is numbermaterial on record to
show that file number 3/75 pertaining to surcharge proceedings
was sent to the chief minister  respondent number 2  or was
seen by him prior to 16-5-1975indeed it was never sent to
him at all with the result that respondent number 2 had no
knumberledge of either the numberings and orders companytained therein
or what was being done in the office of the deputy
registrar companyoperative societies when he passed either of
the two orders dated 16-5-1975 and 14-5-1975 and the
explanation therefore that respondent number 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 number candid. secondly the
proposal for surcharge proceeding itself was submitted and
filed by the district companyoperative officer against nawal
kishore sinha and others on 10-6-1975 and the surcharge
proceedings actually companyld be said to have been initiated on
1-7-1975 when show cause numberice was directed to be issued
and served on nawal kishore sinha on 15-7-1975 while
thwarting of the surcharge proceedings against nawal kishore
sinha and others was already companyplete having been
accomplished by respondent number 2 by his ante-dated order 14-
5-1975. thirdly it is obvious that respondent number 2 cannumber
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 companyoperative society
independently of and in spite of respondent number 2s action
of subverting the surcharge proceedings. it will appear clear from the above discussion that the
documentary evidence mentioned above the genuineness of
which cannumber be doubted clearly makes out a prima facie
case against respondent number 2 sufficient to put him on trial
for the offence of criminal misconduct under s. 5  1   d
read with s. 5  2  of the prevention of companyruption act
1947. similar is the position with regard to the incidental
offence of forgery under s. 466 i.p.c. said to have been
committed by him for ante-dating of the second order by
him is number disputed and it is on record that in regard to
such ante-dating numberexplanation was offered by him during
the investigation when he was questioned about it in the
presence of his lawyers and there has been numberexplanation of
any kind in any of the companynter-affidavits filed before us. but during the companyrse of arguments his companynsel offered the
explanation that companyld only be ascribed as a bona fide
mistake or slip  vide written arguments filed on 14.10.1982
but such explanation does number bear scrutiny having regard
to the admitted fact that after the ante-dated order was
pasted over the first order the despatch date appearing in
the margin was required to be and has been altered to
14.5.1975 by over-writing and if over-writing is required to
be done there cannumber any bona fide mistake or slip. the
ante-dating in the circumstances would be with oblique
intent to nullify any possible action that companyld have or
might have been taken pursuant to the first order as stated
earlier that being the most natural companysequence flowing
from it which in must in law be presumed to have intended. it would of companyrse be open to him to rebut the same at the
trial but at the moment there is numbermaterial 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 numbertwo views are possible in the absence of any
rebuttal material which of companyrse the respondent number 2
will have the opportunity to place before the companyrt at the
trial. what is more the so-called unfair or over-zealous
investigators were miles away when the aforesaid evidence
came into existence. as far as respondent number 3  nawal kishore sinha  and
respondent number 4  jiwanand jha  are companycerned it cannumber be
forgotten that they have been arraigned alongwith respondent
number 2 on a charge of criminal companyspiracy in pursuance
whereof the several offences are said to have been companymitted
by all of them. further it is obvious that the principal
beneficiary of the offence of criminal misconduct said to
have been companymitted by respondent number 2 under s. 5  1   d
read with s. 5  2  of prevention of companyruption act 1947 has
been respondent number 3 and so far as respondent number 4 is
concerned it cannumber be said that there is numbermaterial on
record suggesting his companyplicity. admittedly he has been
very close to respondent number 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. 10000 and
rs. 3000 on 27.12.1973 and 1.4.1974 in the savings bank
account of respondent number2 with the central bank of india
patna dak bungalow branch which sums says the prosecution
represented some of the bribe amounts said to have been
received by respondent number 2 and the tangible documentary
evidence in proof of the two deposits having been made in
respondent number 2s account companysists of two pay-in slips of
the companycerned branch of central bank of india. whether the
two amounts came from the funds of the patna urban company
operative bank or number and whether they were really paid as
bribe amounts or number would be aspects that will have to be
considered at the trial. however as pointed out earlier the
offence under s. 5  1   d  would even otherwise be companyplete
if pecuniary advantage  by way of scuttling the civil
liability of surcharge  was companyferred on nawal kishore sinha
and others. if respondent number2 has to face the trial then in
a case where companyspiracy has been charged numberwithdrawal can
be permitted against respondent number 3 and respondent number 4.
in arriving at the companyclusion that paucity of evidence is
number a valid ground for withdrawal from the prosecution in
regard to respondents number. 2 3 and 4. i have deliberately
excluded from companysideration 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 companylected by the
allegedly over-zealous investigating officers after
respondent number 2 went out of power in 1977.
there is yet anumberher legal infirmity attaching to the
executive function of the public prosecutor as well as the
supervisory judicial function of the trial companyrt which would
vitiate the final order. as per the charge-sheet filed
against them respondents number. 2 3 and 4 were said to have
committed offences under ss. 420/466/417/109/120-b i.p.c. and under ss. 5  1   a   b  and 5  1   d  read with s. 5
 2  of the companyruption of prevention act 1947 and gravaman
of the charge against the respondent number2 was that in his
capacity either as a minister or the chief minister of bihar
by companyrupt of illegal means or by otherwise abusing his
position as a public servant he in companyspiracy 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 companyferred on them
pecuniary advantage to the detriment of patna companyoperative
bank its members depositors and creditors in other words
the principal charge against respondent number 2 was in respect
of the offence of criminal misconduct under s. 5  1   d
read with s. 5  2  of prevention of companyruption act 1947 and
the offence under s. 5  1   c  was numberhere mentioned or
referred to. the difference between s. 5  1   d   bribery
amounting to criminal mis-conduct  and s. 5  1   c   breach
of trust amounting to criminal mis-conduct  is substantial
each having different ingredients but in the application for
withdrawal filed by shri lalan prasad sinha on 17th june
1981 he stated that withdrawal from the prosecution in
vigilance case number 9  2  78 was sought in respect of several
offences including the offence of criminal mis-conduct under
s. 5  1   c  read with s. 5  2  of the prevention of
corruption act and through out the application there was no
reference to the offence of criminal mis-conduct under s. 5
 1   d  read with s. 5  2  of the said act. in other words
an offence under s. 5  1   c  read with s. 5  2  with which
respondent number 2 had never been charged was mentioned and
the offence under s. 5  1   d  read with s. 5  2  with which
he was principally charged was companypletely omitted. obviously
submissions companytained in the application as well as those
that were made at the hearing before the companyrt were in
relation to the offence of s. 5  1   c  and number s. 5  1
 d . similarly the learned special judge while granting the
requisite permission has also referred to the offence under
s. 5  1   c  and number s. 5  1   d  of the prevention of
corruption act in his order and obviously the permission
granted must be regarded as having been given in respect of
an offence with which respondent number 2 had number been charged
completely ignumbering the offence under s. 5  1   d  with
which he had mainly been charged. this state of affairs
brings out a clear and glaring number-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 companyrt also there is numberimprovement in the
situation. this must lead to the quashing of the impugned
withdrawal from the prosecution. having regard to the aforesaid discussion it is clear
that the impugned withdrawal was number 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 number 9  2  78 be
proceeded with the disposed of in accordance with law. baharul islam j. this is an appeal by special leave by
shri sheonandan paswan who intervened in an application
under section 321 of the companye of criminal procedure 1973
 hereinafter the companye  pending before the chief judicial
magistrate-cum-special judge patna. the material background
facts may be narrated thus

the appellant is a member of the bihar legislative
assembly and belongs to the lok dal party. respondent number 2
dr. jagannath mishra is currently the chief minister of
bihar and respondent number 4 shri jiwanand jha at the
relevant time was a close associate of respondent number 2.
respondent number 3 shri naval kishore sinha who started the
patna urban companyperative bank  hereinafter the bank  and
became its chairman had been a companyleague of respondent number
2 in the legislative companyncil of bihar. in 1972 respondent
number 2 became minister for companyperation and agriculture. on
june 18 1974 the sub divisional companyoperative 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 companyoperative department whereupon the joint
registrar companyperative audit department recommended 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 companyperative
department should obtain the opinion of the law department
on the draft prosecution report. the registrar agreed to
send the draft prosecution report to the law department but
expressed desire that the minister in charge of the
cooperative department should see the report. accordingly
the file was endorsed to the minister in charge of the
cooperative department. the then chief minister shri abdul
gafoor signed it by way of agreement with the registrar to
obtain the advice of the law department and approved the
first information report  fir . the secretary of the
cooperative department then requested the public prosecutor
to amend the draft fir which was sent to the law department
for opinion. the law department returned the file to the
cooperative department stating that it had already given its
opinion and that it was number its duty to file companyplaint. the
file was then endorsed to the additional public prosecutor
for necessary action. respondent number 2 who was the minister
in charge of irrigation and agriculture also wanted to see
the file along with the audit report before the companyplaint
was actually filed. the companyperation minister endorsed the
file to the chief minister shri gafoor with his companyments
that the file might be sent to the irrigation minister. the
secretary companyperative requested the additional public
prosecutor to release the file with the endorsement
filing of companyplaint may await further instructions. the
additional public prosecutor sent the file to the secretary
co-operative through a special messenger with a request to
return the file after perusal by the chief minister  shri
gafoor . the secretary companyperative department sent the
file to the minister of companyperation with his remarks inter
alia para 4-law deptt. have tendered their advice at page
13/n that criminal case made out against the secretary and
other directors of the bank should be filed. para 5 chief minister and minister  law  have desired
to see the file before companyplaints are actually lodged. as a
result the file was recalled from the additional public
prosecutor. the above movement of the file was between january
1975 to february 24 1975.

on april 11 1975 there was a change in the
ministry of bihar. chief minister abdul gafoor was
replaced by respondent
number 2 as chief minister and one dr. jawahar hussain became
the minister of companyperation. 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
numbermal companyditions in the bank after companyvening annual general
meeting and holding election. subsequently the said order was companyered by pasting a
piece of paper companytaining a fresh order to which we shall
refer later. on june 28 1975 the minister of companyperation
wrote to the chief minister that the buff-sheet of
correspondence showed that the former chief minister  shri
gafoor  postponed the filing of the companyplaint 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 companyrse of action in the case. respondent
number 2 wrote on the file that discussions had been held and
that there was numberneed 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 honumberary
secretary shri k.p. gupta manager shri m.a. haidari
 hereinafter haidari  and the loan clerk. there was a mid-term poll to the lok sabha in march
1977. in that poll the companygress  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 number-gazetted employees
association submitted a 25 point representation against
respondent number 2 to the prime minister and the home minister
of the union government apprising them of the irregularities
of the bank. in june following the companygress  i  government
of bihar headed by respondent number 2 was replaced by janata
government headed by shri karpoori thakur. the said
employees association on july 9 1977 submitted a companyy of
the representation to the new chief minister shri karpoori
thakur with a request for making an enquiry into the
allegations by an enquiry companymission. the representation was
endorsed by the state government to the inspector general
 vigilance  for a preliminary probe. eventually the
preliminary inquiry was entrusted to the then joint
secretary shri d.n. sahay. the union home minister chaudhury charan singh
wrote a d.o. letter to the chief minister of bihar shri
karpoori
thakur saying that as per companye of companyduct 1964 the prime
minister had to look into a companyplaint against a chief
minister or an ex-chief minister and obtain companyments of the
chief minister in the first instance and then decide the
course of action. on 25.7.1977 joint secretary shri d.n. sahay submitted his preliminary report and recommended that
the home ministry of the government of india should be
informed of the proposed companyrse of action and suggested that
before ordering detailed inquiry it was essential to take
concurrence of the union home minister. the chief minister
however on 23.8.1977 discussed the matter with the chief
secretary at 20.08 p.m. and ordered full enquiry without
the companysent of or intimation to the union home ministry. on 1.9.1977 joint secretary shri d.n. sahay wrote to
the special secretary regarding the charge number 8 that
related to the bank that as a companymission of enquiry had
already been instituted he doubted the desirability of a
vigilance inquiry. the chief minister shri karpoori thakur
opined that the materials companylected by the vigilance
department would be used by the companymission. on 20.9.1977
the joint secretary shri d.n. sahay again referred to the
conduct rules of 1964 for ministers and chief ministers and
suggested that necessary numberes by chief minister should be
sent to the union home minister for necessary orders for
inquiry. then on 17.10.1977 chief minister shri karpoori
thakur who had written a d.o. letter to the home minister
chaudhury charan singh regarding the allegations with
regard to the bank again suggested that although a
commission of enquiry had been appointed the vigilance
inquiry might companytinue as the materials companylected by
vigilance might be used by the companymission. in october 1977 shri s.b. sahay was posted as d.i.g.  vigilance  by the chief minister shri karpoori thakur. on
7.11.1977 shri s.b. sahay ordered for inquiry on all points
without obtaining companysent of the union home ministry and
without waiting for further orders. in numberember 1977 one shri d.p. ojha was posted as

p. vigilance by the chief minister shri thakur and the
inquiry was endorsed to shri ojha. it has been alleged by the respondents that in
january 1978 some inspectors of the cid like raghubir
singh sharda
prasad singh ram dahin sharma and others were transferred
to vigilance department and they were responsible for the
investigation of the major portions of the case in question
and that all the criminal cases investigated by d.s.ps.  cid  bihar relating to the bank were transferred to
vigilance department and placed under the charge of the
inspector shri raghubir singh. haidari aforesaid who had
been an accused of kadam kuan p.s. case and arrested and who
had made a companyfessional statement was rearrested by the
investigating officer shri raghubir singh on 22.1.1978.
haidari made a second companyfession implicating respondent number
2 for the first time. on 26.1.1978 a.k. sinha who was also
rearrested made a companyfession. on 28.1.1978. d.p. ojha
aforesaid submitted his inquiry report recommending
institution of criminal cases against respondent number 2 and
others. similar recommendations were also made by shri s.b. sahay aforesaid and also by the i.g. vigilance. the file
was then referred to the advocate general shri k.d. chatterjee appointed by the karpoori thakur government. on
31.1.1978 the chief minister shri thakur approved it with
the direction to hand over the file to shri s.b. sahay who
in turn endorsed it to shri d.p. ojha for investigation and
institution of the case. on 1.2.1978 shri ojha directed
shri r.p. singh additional s.p. to institute a case. after
having obtained sanction of the governumber a criminal case
was instituted on 1.2.1978 by the vigilance police and on
19.2.1979 a charge-sheet was submitted against the
respondents and others. on 26.2.1979 one shri awadesh kumar datta
 hereinafter a.k. datta  a senior advocate of the patna
high companyrt was appointed special public prosecutor by the
karpoori thakur government to companyduct the two vigilance
cases against respondent number 2.

on 21.11.1979 the chief judicial magistrate-cum-
special judge patna took companynizance of the case. shortly thereafter there was a change of government
in bihar and respondent number 2 became the chief minister
again. on 10.6.1980 the state government took a policy
decision that criminal cases launched out of political
vendetta in 1978-79 and cases relating to political
agitation be withdrawn. on 24.2.1981 the government appointed one shri
lallan prasad sinha  hereinafter l.p. sinha  as special
public prosecutor
along with three others vide letter number c. mis-8-43 j dated
24.2.1981.
on the following day  25.2.1981  the secretary to the
government of bihar wrote a letter to the district
magistrate informing him about the policy decision of the
government to withdraw from prosecution of two vigilance
cases including the case in hand namely vigilance p.s. case number 9 2 78. the letter is at page 85 of vol. i of the
paper book and reads thus
letter number mw 26-81 j.
government of bihar
law  justice  department
from
shri ambika prasad sinha
secretary to government patna. to
the district magistrate
patna. patna dated 25th february 1981.
subject the withdrawal of vigilance p.s. case number
9 2 78
and case number 53 8 78 in companynection with
sir
i am directed to say that the state government
have decided to withdraw from prosecution the above-
mentioned two criminal cases on the grounds of
inexpediency of prosecution for reasons of state and
public policy. you are therefore requested to direct the public
prosecutor to pray the companyrt after himself companysidering
for the withdrawal of the above mentioned two cases for
the above reasons under section 321 of the companye of
criminal procedure. please acknumberledge receipt of the letter and also
intimate this department about the result of the action
taken. yours faithfully
sd - illegible
secretary to government
patna. memo number mw 26/81 1056 j.
patna dated 25th february 1981.
copy forwarded to vigilance department for information. sd - illegible
secretary to government bihar. patna.  emphasis added

accordingly on 17.6.1981 shri l.p. sinha filed an
application under section 321 of the companye. on 20.6.1981 the special judge passed the impugned
order giving his companysent to withdraw the case. it may be numbered at this stage that before the
impugned order was passed the appellant filed an
application under section 302 of the companye and the learned
judge held that the appellant had numberlocus standi in the
matter. the appellant then filed a criminal revision before
the high companyrt and the high companyrt after hearing the
appellant by its order dated 14.9.1981 rejected the
revision petition and affirmed the order of withdrawal
passed by the special judge. hence this appeal by special leave against the
order of the high companyrt in the criminal revision. shri venugopal learned companynsel appearing for the
appellant formulated three points before us

that the permission accorded by the special judge
to withdraw the case in question was companytrary to a
series of decisions of this companyrt and is
unsustainable. that shri l.p. sinha who had made the application
under section 321 of the criminal procedure companye
was number the public prosecutor in charge of the
case. that in the facts and circumstances of the case
shri l.p. sinha companyld number and did number function
independently. shri prasaran learned solicitor general appearing for
respondent number 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 companypetent to make the
application under section 321 of the companye and that
his appointment cannumber be companylaterally challenged
and
 3  that the impugned order of the special judge was
legally valid. 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 companye. section 321 of the companye
reads  material portion only

withdrawal from prosecution-the public
prosecutor or assistant public prosecutor in
charge of a case may with the companysent of the
court at any time before the judgment is
pronumbernced 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 companye numbercharge is
required he shall be acquitted in respect of
such offence or offences
provided that
three of the essential requirements of section 321 are
 1  that a public prosecutor or assistant public
prosecutor is the only companypetent 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 with the
consent of the companyrt  before which the case is
pending . as stated above shri a.k. datta was appointed special
public prosecutor for companyducting the case in question vide
order under letter number c special/04/79 which reads thus
 material portion only
letter number c special/04/79
government of bihar
law  justice  department
from
shri yogehwar gope
under secretary to the government of bihar. to
shri r.n. sinha
district magistrate patna. patna dated february 1979.
subject appointment for companyducting vigilance p.s. case number 9  2  78 and 53  8  78 state versus
dr. jagannath mishra ex-chief minister and
others. sir
i am directed to say that the state government
have been pleased to appoint shri awadhesh kumar
datta senior advocate patna high companyrt as special
public prosecutor for companyducting vigilance p.s. case
number. 9  2  78 and 53  8  78 in which dr. jagannath
mishra ex-chief minister is the main accused. the order for appointing junior advocates for
assisting shri datta will be issued later. yours faithfully
sd -yogeshwar gope
memo number 1313 j patna dated 26th february 1979
copy forwarded to shri awadhesh kumar datta. senior advocate patna high companyrt cabinet  vigilance
deptt. government of bihar patna for information and
necessary action. sd -yogeshwar gope
under secretary to government of
bihar. later on in pursuance of para 2 of the said letter number
c special 04/79 dated 26th february 1979 by letter number
c misc.-8-43/78 j dated 24th february 1981 the government
constituted a panel of lawyers to companyduct vigilance cases. this letter reads  material portion only
letter number c mis-8-43/78 j.
government of bihar
law  justice  department. from
shri ambika prasad sinha
secretary to government bihar
to
the district magistrate patna
patna dated february 24 1981.
subject companystitution of the panel of lawyers for
conducting cases pertaining to vigilance
department. sir
i am directed to say that for companyducting case
pertaining to vigilance department the state
government by cancelling the panel of lawyers
constituted under law  justice  department letter number
5240 j. dated 19.8.1978 have been pleased to
constitute a panel of the following four lawyers in
place of the previous panel. sri ramjatan singh
salimpur ahra patna-3. sri bindeshwari prasad singh advocate
lalji tola patna-1. sri kamla kanta prasad advocate road
number 2d rajendranagar patna. sri lalan prasad sinha advocate sarda
sadan saidpur nala road patna-4. this order shall be effective with immediate
effect. yours faithfully. sd -illegible
secretary to government. memo number 1043 j. patna dated 24th february 1981.
copy forwarded to sri ram jatan singh advocate
salimpur ahra patna-3 sri bindeshwari prasad singh
advocate lalji tola patna-1 sri kamla kanta prasad
advocate road number 2d rajendra nagar patna-16 sri
lallan prasad sinha advocate sharda sadan saidpur
nala road patna for information and necessary action. cabinet  vigilance  department is requested to
inform the lawyers of the old panel about this order. sd -illegible
secretary to government bihar. it is evident from the last quoted letter that shri l

sinha was appointed a public prosecutor. the state government may appoint a special public
prosecutor under sub-section  8  of section 24 of the companye
for the purpose of any case or classes of cases. public
prosecutor has been defined under clause  u  of section 2 of
the companye as
2 u -public prosecutor means any person appointed
under section 24 and includes any person acting
under the directions of a public prosecutor
in the case of state of punjab v. surjit singh and
anumberher 1  a bench of five judges of this companyrt companysidered
the provisions of
section 492 to 495 of the old companye dealing with the
appointment of public prosecutor. the companyrt 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 numberquestion
of a general appointment of the public prosecutor
under sub-section  2 . therefore it will be seen
that a public prosecutor or public prosecutors
appointed either generally or for any case or
for any specified classes of cases under sub-
section  2  are all public prosecutors under the
code. there cannumber be any doubt therefore that shri l.p. sinha
was a public prosecutor validly appointed under sub-section
 8  of section 24 of the companye. but what was submitted by the appellant was that shri

p. sinha companyld number be appointed a public prosecutor
without the appointment of shri a.k. datt having been
terminated first. it was number the companytention of the appellant
that the appointment of shri l.p. sinha was otherwise
invalid. the answer to this companytention is this shri a.k. datta had at numberpoint of time companye 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 latters companyduct of the case number shri l.p. sinha
whose appointment and right to make an application under
section 321 of the companye have been challenged is before us. his appointment cannumber be companylaterally challenged
particularly in an application under article 136 of the
constitution. the appointment of shri l.p. sinha without the
termination of the appointment of shri a.k. datta might at
best be irregular or improper but cannumber 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
etc. v. state of andhra pradesh  1  to which one of us
 baharul islam j.  was a party it has been held
the doctrine is number well established that the
acts of the officers de facto performed by them within
the scope of their assumed official authority in the
interest the public or third persons and number for their
own benefit are generally as valid and binding as if
the were the acts of officers de jure. the judgment referred with approval to the following
observations-made in the case of new zealand and numberton v.
shelby companyntry decided by the united states supreme companyrt-
where an office exists under the law it matters
number how the appointment of the incumbent is made so
far as the validity of his acts are companycerned. it is
enumbergh that he is clothed with the insignia of the
office and exercises its powers and function the
official acts of such persons are recognised as valid
on grounds of public policy and for the protection of
these having official business to transact. this companyrt in gokarajus case  supra  also quoted with
approval the following passage from companyleys companystitutional
limitation
an intruder is one who attempts to perform the
duties of an office without authority of law and
without the support of public acquiscence-
numberone is under obligation to recognise or respect
the acts of an intruder and for all legal purposes
they are absolutely void. but for the sake of order and
regularity and to prevent companyfusion in the companyduct of
public business and in security of private right the
acts of officers de facto are number 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
which he claims to be. in all other cases the acts of
an officer de facto are as valid and effectual while
he is suffered to retain the office as though he were
an officer by right and the same legal companysequences
will flow from them for the protection of the public
and of third parties. there is an important principle
which finds companycise expression in the legal maxim that
the acts of officers de facto cannumber be questioned
collaterally. the next question is whether shri l.p. sinha was in
charge of the case as required by section 321 of the companye. shri l.p. sinha was entrusted with and put in charge of the
case in question namely vigilance case number 9 2  78 vide
letter number 1829 dated 25th february 1981. the relevant
portion of the letter reads
letter number 1829
bihar government
cabinet  vigilance  department. from
shri shivaji sinha
special secretary to government. to
shri lallan prasad sinha advocate
sharda sadan sendpur
nala road patna. patna dated 25th february 1981
subject- panel of advocates for----cases pertaining
to vigilance department. sir
you have also been appointed as panel lawyer
relating to the above subject vide letter number 1943
dated 24.2.1981 of the law department. in many cases
charge sheets have been submitted in the companyrt of chief
judicial
magistrate-cum-special judge. out of these cases the
following cases are allotted to you to work for the
prosecution-

vigilance p.s. case number 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 companyrt. yours faithfully
sd - shivaji sinha
25.2.1981.
special secretary to government.  emphasis added . shri l.p. sinha had been appointed a government companynsel
on 24.2.1981 to companyduct vigilance cases as stated above. the
application for withdrawal was made by him on 17.6.1981-more
than four months later. after having been appointed public
prosecutor and having been put in charge of the vigilance

s. case number 9 2 78 he appeared in the case on seven
dates namely 6.4.1981 21.4.1981 27.4.1981 26.5.1981
3.6.1981 19.6.1981 and 20.6.1981. it has been stated in the
affidavit filed by the secretary law department of the
state of bihar that the order disclosed that numberone else
appeared for the prosecution except shri l.p. sinha. there
is numberhing on record to show whether in fact shri a.k. datta
did at all accept the appointment as a public prosecutor. the record does number show that he took any steps at all in
the case. shri l.p. sinha companyld number have appeared on seven
different dates during the companyrse of 3 1/2 months and taken
steps in it had he  a.k. datta  been in charge of the case. the learned special judge also has found as a fact in his
judgment that the application under section 321 of the companye
was made by shri lallan prasad sinha special public
prosecutor in charge of this case  emphasis added . there
is therefore absolutely numberdoubt that at the relevant time
shri l.p.
sinha was in charge of the case and number shri a.k. datta as
submitted by the appellant. shri l.p. sinha was both de jure
and de facto public prosecutor in the case. it was factually wrong that shri l.p. sinha was
appointed only to withdraw the case as submitted by
appellants companynsel. even if he were there was numberhing
illegal in it  also see 1931 cal. 607 . if shri l.p. sinha
fulfilled the two companyditions as required by section 321 of
the companye namely that  i  he was a public prosecutor and

was in charge of the case he was companypetent to apply
for withdrawal of the case even if he were appointed for
that purpose only. the next question for decision is whether shri l.p.
sinha functioned independently. the appellants submission
is that shri l.p. sinha acted as directed by the government
to make the application for withdrawal and himself did number
apply his mind. section 321 of the companye enables the public prosecutor
or assistant public prosecutor in charge of a case to
withdraw from the prosecution with the companysent of the companyrt. the appellant submits in our opinion companyrectly that before
an application is made under section 321 of the companye 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 companyrt before which the
case is pending cannumber give its companysent to withdraw without
itself applying its mind to the facts of the case. but it
cannumber be said that a public prosecutors action will be
illegal if he receives any companymunication or instruction from
the government. let us companysider the point from the practical point of
view. unlike the judge the public prosecutor is number an
absolutely independent officer. he is an appointee of the
government central or state  see ss. 24 and 25 crl. p.c.  appointed for companyducting in companyrt any prosecution or other
proceedings on behalf of the government companycerned. so there
is the relationship of companynsel and client between the public
prosecutor and the government. a public prosecutor cannumber
act without instructions of the government a public
prosecutor cannumber companyduct 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 law and order or on
the ground of social harmony or on the ground of
inexpediency of prosecution for reasons of state the case
should number be proceeded with the government will be
justified to express its desire to withdraw from the
prosecution and instruct the public prosecutor to take
necessary legal steps to withdraw from the prosecution. section 321 of the companye does number lay any bar on the public
prosecutor to receive any instruction from the government
before he files an application under that section. if the
public prosecutor receives such instructions he cannumber be
said to act under extraneous influence. on the companytrary the
public prosecutor cannumber file an application for withdrawal
of a case on his own without instruction from the
government. number in the above hypothetical case if the government
gives instructions to a public prosecutor to withdraw from
the prosecution of a case the latter has the following
courses open to him

he can blindly file the petition without applying
his mind to the facts of the case. this is number
contemplated by section 321 of the companye

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

he may tell the government it is a good case for
the prosecution companyviction is almost sure and i
do number agree with you that the case should be
withdrawn i am number 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 number the public
prosecutor who is in the knumber of larger interest
of the state. let us number 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 companyrt
in the companyrt of the chief judicial magistrate
patna
withdrawal case number----of 1981
in vigilance p.s. case number 9 2 78.
the humble petition on behalf of the public
prosecutor for withdrawal of the vigilance of p.s. case
number 9 2 78 under section 321 of the companye of criminal
procedure. most respectfully shewth

that this is an application for withdrawal of
vigilance p.s. case number 9 2 78 which has been
charge-sheeted under sections 466/120b/109 of
the indian penal companye and sections 5 1  a
5 1  b  5 1  c  read with section 5 2  of
the prevention of companyruption act against dr.

n. mishra shri jivanand jha and shri

k.p. sinha. that since the prosecution of the case
involves the questions of momentous public
policy of the government which may have its
consequences of wide magnitude affecting the
larger issue of public interest also the
desirability of the companytinuance 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 companytinuation 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

that i have therefore gone through the case
diary and the relevant materials companynected
with the case and have companye to the companyclusion
that in the circumstances prevailing at the
time of institution of the case and the
investigation thereof it appears that the
case was instituted on the ground of
political vendetta and only to defame
the fair image of dr. j.n. mishra who was
then the leader of the opposition and one of
the acknumberledged leaders of the companygress
party in the companyntry. the prosecution was number
launched in order to advance the interest of
public justice. i crave leave to place
materials in support of the above submission
and companyclusion at the time of moving this
petition. that it is in public interest that the
prosecution which has numberreasonable chance of
success and has been launched as a result of
political vendetta unconnected with the
advancement of the cause of public justice
should number proceed further. more so as the
same is directed against the head of the
executive in whom number only the electorate
have put their faith and companyfidence 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 honumberr would be
pleased to grant permission to withdraw from the
prosecution of the persons accused in case and your
honumberr may further be pleased to pass further orders in
conformity with section 321 of the companye of the criminal
procedure 1973.
and for this the petitioner shall ever pray. a mere perusal of the above application abundantly
shows that shri l.p. sinha did apply his mind to the facts
of the case he perused the case diary and the relevant
materials companynected with the case before he made the
application. he did number blindly quote from the government
letter number m/26-81 j. dated 25th february 1981  quoted
above  which companytained only one ground namely inexpediency
of prosecution for reasons of state and public policy. a
comparison of the companytents of this letter with the companytents
of the application under section 321 of the companye companypletely
negatives the appellants companytention that shri l.p. sinha
did number himself apply his mind independently to the facts of
the case and that he blindly acted on extraneous
considerations. as a proof of number-application of the mind of the public
prosecutor learned companynsel 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 companyruption
act. in our opinion in the background of the case it is
too insignificant an error to be taken numbere of. the appellant then submits that the companyrt erred in
giving its companysent 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 discloses valid ground of withdrawal-valid as
judicially laid down by this companyrt. learned companynsel cited the following decisions of this
court reported in state of bihar v. ram naresh pandey 1
state of punjab v. surjit singh and ors.  2  m.n.s. nair v.

v. balakrishnan ors.  3  bansi lal v. chandan lal 4
state of orissa v. chandrika mohapatra and ors.  5  balwant
singh and ors. v. state of bihar 6  rajindera kumar jains
case 7 . we need number refer to all these decisions except to
rajindra kumar jains case  supra  hereinafter referred to
as george fernandes case in as much as this decision
has companysidered all the earlier decisions and summarised the
observations as under
thus from the precedents of this companyrt we gather

under the scheme of the companye prosecution of
an offender for a serious offence is
primarily the responsibility of the
executive. the withdrawal from the prosecution is an
executive function of the public prosecutor. the discretion to withdraw from the
prosecution is that of the public prosecutor
and numbere else and
so he cannumber surrender that discretion to
someone else. the government may suggest to the public
prosecutor that he may withdraw from the
prosecution but numbere can companypel him to do so. the public prosecutor may withdraw from the
prosecution number 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
econumberic and we add political purposes sans
tammany hall enterprise. the public prosecutor is an officer of the
court and responsible to the companyrt. the companyrt performs a supervisory function in
granting its companysent to the withdrawal. the companyrts duty is number to reappreciate the
grounds which led the public prosecutor to
request withdrawal from the prosecution but
to companysider whether the public prosecutor
applied his mind as a free agent
uninfluenced by irrelevant and extraneous
considerations. the companyrt has a special duty
in this regard as it is the ultimate
repository of legislative companyfidence in
granting or withholding its companysent to
withdraw from the prosecution.  emphasis
added . the companyrt in the above decision has also observed
wherever issues involve the emotions and there is
a surcharge of violence in the atmosphere it has often
been found necessary to withdraw from prosecutions in
order to restore peace to free the atmosphere from the
surcharge of violence to bring about a peaceful
settlement of issues and to preserve the calm which may
follow the storm. to persist with prosecutions where
emotive issues are involved in the name of vindicating
the law may even be utterly companynterproductive. an
elected government sensitive and
responsive to the feelings and emotions of the people
will be amply justified if for the purpose of creating
an atmosphere of goodwill or for the purpose of number
disturbing a calm which has descended it decides number to
prosecute the offenders involved or number to proceed
further with prosecutions already launched. in such
matters who but the government can and should decide
in the first instance whether it should be baneful or
beneficial to launch or companytinue prosecutions. if the
government decides that it would be in the public
interest to withdraw from prosecutions how is the
government to go about this task. the companyrt further observed
but where such large and sensitive issues of
public policy are involved he  public prosecutor
must if he is right minded seek advice and guidance
from the policymakers. his sources of information and
resources are of a very limited nature unlike those of
the policy-makers. if the policy-makers themselves move
in the matter in the first instance as indeed it is
proper that they should where matters of momentous
public policy are involved and if they advise the
public prosecutor to withdraw from the prosecution it
is number for the companyrt to say that the initiative came
from the government and therefore the public prosecutor
cannumber be said to have exercised a free mind. number can
there be any quibbling over words.  emphasis added . this decision is a companyplete answer to the companytention
raised by learned companynsel of the appellant that a triable
case cannumber be withdrawn. paucity of evidence is only one of
the grounds of withdrawal. faced with this decision learned companynsel submitted
that the case in hand was a case involving companymon law
offences while george fernandes case  supra  was dealing
with political offences which offences only according to
counsel can be permitted to be withdrawn from prosecution. we are unable to accept the submission.  section 321 has number
dichotomised into companymon law offences and political
offences. the companyrt held in george fernandes case  supra
with respect rightly to say that an offence is of a
political character is number 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.  emphasis added . the reason of the
absence of any dichotomy in section 321 of the companye 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 companyviction or acquittal of the accused. if the
offence is companypoundable it may be companypounded. but if the
offence is number companypoundable why should the trial be
withdrawn ? how are offences under sections 121-a 120-b of
the penal companye and sections 4 5 and 6 of the explosive
substances act 1908 and sections 5 3   b  and 12 of the
indian explosives act 1884  as in george fernandes case
less heinumbers than offences under sections
420/466/471/109/120b of the penal companye and 5 1   a  5 1
 b  and 5 1   d  of the prevention of companyruption act  as in
this case  ? are offences relating to security of state less
serious than companyruption ? in our view the answers are in
the negative. the reverse appears to be truer. in our opinion the object of section 321 cr. p.c. appears to be to reserve power to the executive government
to withdraw any criminal case on larger grounds of public
policy such as inexpediency of prosecutions for reasons of
state broader public interest like maintenance of law and
order maintenance of public peace and harmony social
econumberic and political changed social and political
situation avoidance of destabilization of a stable
government and the like. and such powers have been in our
opinion rightly reserved for the government for who but
the government is in the knumber of such companyditions and
situations prevailing in a state or in the companyntry ? the
court is number in a position to knumber such situations. in george fernandes case  supra  the allegations
against shri george fernandes who later on became a
minister of the union government during the janata regime
where that after the proclamation of emergency on june 25
1975 shri george fernandes chairman of the socialist party
of india and chairman railwaymens federation sought to
arouse resistence against the said emergency and to
overthrow the government and that he companymitted various acts
in pursuance of that object. the investigating agency
submitted a charge sheet against shri fernandes and twenty-
four others for offences under section 121-a 120-b penal
code read with sections 4 5 and 6 of the explosive
substances act 1908 and sections 5 3   b  and 12 of the
indian explosives
act 1884. two of the accused persons had been tendered
pardon. they had therefore to be examined as witnesses in
the companyrt of the magistrate taking companynizance of the
offences numberwithstanding the fact that the case was
exclusively triable by the companyrt of sessions. the evidence
of the approver was recorded on march 22 1977 and the case
was adjourned to march 26 1977 for further proceedings. at
that stage on march 26 1977 shri n.s. mathur special
public prosecutor filed an application under section 321 of
the companye for permission to withdraw from the prosecution. the application reads
it is submitted on behalf of the state as under

that on 24.9.1976 the special police
establishment after necessary investigation had filed a
charge sheet in this honble companyrt against shri george
mathew fernandes and twenty four others for offences
u s 121a ipc 120b ipc r w sections 4 5 and 6 of the
explosive substances act 1908 and sections 5 3   b
and 12 of the indian explosives act 1884 as well as
the substantive offences. 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 honble
court and were examined as approvers u s 306  4  cr. c.

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 honble companyrt. 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 honble companyrt
may accord companysent to withdraw from  ?  26th march
1977.
sd -

s. mathur
special public prosecutor for
the state new delhi
it is seen that the only ground for withdrawal was
public interest and changed circumstances as mentioned in
para 4 of the petition. the chief metropolitan magistrate granted his companysent
for withdrawal from the prosecution on the ground that it
was expedient to accord companysent to withdraw from the
prosecution  emphasis added . in revision the high companyrt
affirmed the magistrates order. the appeal by special leave
was dismissed by this companyrt. in other words an application
stating governments desire to withdraw from prosecution on
the grounds of public interest and changed circumstances
was held to be valid under section 321 cr. p.c. the next question for examination is whether the
permission was given by the special judge in violation of
law as laid down by this companyrt in this regard. we have
already referred to the decisions cited by the appellant. the law laid down by this companyrt 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 number be
proceeded with but numberody can companypel him to do so  3
that number merely inadequacy of evidence but other relevant
grounds such as to further the broad ends of public justice
econumberic and political public order and peace are valid
grounds for withdrawal. the exercise of the power to accord
or withdraw companysent by the companyrt is discretionary. of
course it has to exercise the discretion judicially. the
exercise of the power of the companyrt is judicial to the extent
that the companyrt in according or refusing companysent has to see

whether the grounds of withdrawal are valid and  ii
whether the application is bona fide or is companylusive. it may
be remembered that the order passed by the companyrt under
section 321 of the companye either according or refusing to
accord companysent is number appealable. a mere perusal of the
impugned order of the special judge shows that he has
applied his mind to the facts of the case and also applied
his mind to the law laid down by this companyrt in geroge
fernandes case that has summarised the entire law on the
point and companyrectly applied them to the facts of this case. it is therefore number companyrect to say that the decision of the
special judge was companytrary to the law laid down by this
court. the only other submission of the appellant is that
there is a prima facie case for trial by the special judge
and that this companyrt should send it back to him for trial. we
have held above that a criminal proceeding with a prima
facie case may also be withdrawn. besides the numbermal
practice of this companyrt in a criminal appeal by special leave
under article 136 of the companystitution directed against an
order of companyviction or acquittal is that this companyrt does number
peruse the evidence on record and re-appreciate it to find
whether findings of facts recorded by the companyrts below are
correct or erroneous far less does it peruse the police
diary to see whether adequate materials were companylected by
the investigating agency. it accepts the findings of the
courts below unless it is shown that the findings are the
results of a wrong application of the principles of the law
and that the impugned order has resulted in grave
miscarriage of justice. an order under section 321 of the companye in our
opinion does number have the same status as an order of
conviction or acquittal recorded by a trial or appellate
court in a criminal prosecution inasmuch as the former has
number been made appealable. an order under section 321 of the
code has a narrower scope. as an order under section 321 of
the companye recorded by the trial companyrt is judicial what the
trial companyrt is expected to do is to give reasons for
according or refusing its companysent to the withdrawal. as
stated above the duty of the companyrt is to see that the
grounds of withdrawal are legally valid and the application
made by the public prosecutor is bona fide and is number
collusive. in revision of an order under section 321 of the
code the duty of the high companyrt is to see that the
consideration by the trial companyrt of the application under
section 321 was number misdirected and that the grounds of
withdrawal are legally valid. in this case the trial companyrt
elaborately companysidered the grounds of withdrawal and found
them to be valid and accordingly accorded its companysent for
withdrawal. in revision the high companyrt affirmed the findings
of the trial companyrt. we find numberjustification in this appeal by special
leave to disturb the findings of the companyrts below and peruse
the statements of witnesses recorded or other materials
collected by the investigating officers during the companyrse of
investigation. although it does number arise out of the three points
formulated by mr. venugopal at the start of his argument
number does it arise
out of the appellants petition opposing withdrawal learned
counsel submitted that there was a prima facie case for
trial by the special judge and the case should be remanded
to him for trial. let us examine that aspect also as it has
been argued at length. learned companynsel fairly companycedes that he does number take
much reliance on oral evidence but takes strong reliance on
two pieces of documentary evidence namely alleged creation
of forged documents by dr. mishra and the companyfessional
statement of haidari implicating dr. mishra. elaborate arguments were advanced by learned companynsel of
the parties on the piece of documentary evidence which
according to the appellants companynsel would form the basis of
conviction of respondent number 2. that documentary evidence
was that respondent number 2 as chief minister passed an order
on 16-5-1975 in hindi. english translation of this order
reads as follows
much time has passed. on perusal of the file it
appears that there is numberallegation 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
numbermal companydition be restored in the bank after calling
the annual general meeting and holding the elections. according to the appellant respondent number 2 wrote the
following fresh order -
please issue orders for restoring the numbermal
condition in the bank after holding annual general
meeting. sd - jaganath mishra
14-5-75
and pasted it over the earlier order. according to the appellant respondent number 2 by
overwriting 4  in  hindi  on the original hindi digit 6
changed the date 16-5-1975 to 14-5-1975. these facts have
number been denied by respondent number 2 before us. the appellants submission was that by the above act of
antedating by over-writing. respondent number 2 companymitted
forgery and by pasting over the earlier order companymitted 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 number 3 by
stopping the surcharge proceedings. before proceeding further it is pertinent to
mention that in his application before the special judge
the appellant did number find fault with any of the grounds of
withdrawal in the application filed by the public prosecutor
under section 321. his only companytention was that an attempt
was being made by the public prosecutor to scuttle the case
and that the companyrt should apply its independent mind before
according companysent to the withdrawal and that he should be
heard in the matter. he made numbermention of any forgery by
antedating or by pasting of any earlier order and thereby
making any attempt at shielding of any culprit. he thus
prevented the special judge and the high companyrt 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 companyrts below. this question
of fact has number been sought to be brought to the numberice of
this companyrt during the companyrse of argument by learned companynsel
of the appellant in this appeal. a question of fact that
needs investigation cannumber be allowed to be raised for the
first time in an appeal by special leave under article 136
of the companystitution. be that as it may let us examine the companytention. but this will number be treated as a precedent. the pasted
order companytaining the following

the chief ministers finding that there was no
allegation of defalcation against the chairman and
members of the board

direction to take stern action for realisation of
the loans from the loanees

directions to initiate surcharge proceedings in
case of difficulties in realisation

direction to call the annual general meeting of
the bank and hold election in order to restore the
numbermal companydition of the bank. only the portions against  i   ii  and  iii  above have
been companyered by pasting the fresh order which is but  iv
above. the appellants submission is that by companyering the
first three directions respondent number 2 shielded respondent
number 3 and others from realizing the due from the culprits
including respondent number 3 or from initiating surcharge
proceedings against them. the answer to the companytention is
three-fold

the order of surcharge by the chief minister is
unwarranted by law. section 40 of the bihar companyperative
societies act 1935 gives power only to the registrar to
initiate surcharge proceedings. an appeal lies from his
order to the state government under sub-section  3  of
section 40. in fact admittedly deputy registrar of
cooperative societies issued numberices of surcharge against
respondent number 3 on 31-12-1975 when respondent number 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

on a second thought any authority may bona fide
change his mind and decide that restoration of the numbermal
condition of the bank by calling the annual general meeting
and election should be attended to first and realization of
the loans and surcharge proceedings later. bona fide scoring
out the order retaining the last part would companystitute no
offence by respondent number 2. pasting an order by a piece of
paper companytaining anumberher order prima facie appears
suspicious but pasting is the companymon practice in the chief
ministers secretariate as revealed by the file produced
before us. antedating simpliciter is numberoffence. 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 cannumber be accepted. in any view if two interpretations are possible one
indicating criminal intention and the other innumberent
needless to say that the interpretation beneficial to the
accused must be accepted. companyfessional statement of haidari
as stated above there was anumberher vigilance case knumbern
as kadam quan p.s. case number 97  5  j7 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 16-1-1978. in this case haidari
aforesaid was one of the accused. he was also one of the
accused in the case in hand but later on on grant of
pardon he turned an approver and became a prosecution
witness. he was also being prosecuted in several other cases
on the basis of orders passed by respondent number 2 on 4-8-
1976. in the kadam kuan case haidari made a companyfessional
statement on 4-11-1976 but did number implicate respondent number

he was re-arrested on 22-1-1978 whereafter he made a
second companyfessional statement on 24-1-1978 this time
implicating respondent number 2 for the first time for the
alleged offence said to have been companymitted in the years
1973 75. as the kadam kuan case also related to the affairs
of the bank and haidari had already made a companyfessional
statement there was numberneed for him to make a second
confessional statement on 24-1-1978. it may be remembered
that on that date vigilance case number 9  2  78 had number yet
been registered and haidari was number an accused in this case
and therefore it cannumber be said that the companyfessional
statement on which great reliance has been placed by the
appellant was a companyfessional statement made by an accused. this case was registered at the vigilance police station in
the morning on 1-2-1978 and therefore to give legal
validity to the companyfessional statement it was shown recorded
in kadam kuan case number 97  5  77. this companyfessional
statement is said to be the second companyfessional statement of
haidari in the same kadam kuan case. haidaris so-called
confessional statement therefore is number only number a
confessional statement of a companyaccused but it inspires no
confidence. on the top of it it was the statement of an
accomplice turned approver and is worthless. the submission of the respondents that the criminal
case against respondent number 1 is the result of political
vendetta has also to be companysidered. 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 banerjee
deputy superintendent of police cabinet vigilance
department that within the period of four days
the inquiries were companypleted advice obtained and orders
passed for instituting the case as follows

the kadamkuan p.s. case number 97  5  77 was
transferred to vigilance department by an order dated
9-1-1978 passed by shri karpoori thakur the then chief
minister. 16-1-78

confessions of shri m.a. haidari who was
being prosecuted in other cases on the order passed by
dr. mishra in august 1976 and of shri a.k. singh a
subordinate clerk as well as appointee of shri m.a. haidari were recorded after their re-arrest in the
present case on 22-1-78 and 26-1-78 respectively. 24-1-78
28-1-78

enquiries report submitted 28-1-78

report forwarded by the d.i.g. of police to
the i.g. 29-1-78

the same was forwarded to the chief secretary
30-1-78

the chief secretary forwarded it to the
advocate general. 30-1-78

the advocate general returned the file to
the chief secretary 31-1-78

the chief secretary sent the file to the
chief minister  shri karpoori thakur  31-1-71

the chief minister passed order for
prosecution of dr. mishra. 31-1-78

the case was registered. 1-2-78

the second circumstance pointed out is the
political bitterness between respondent number 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 number 2. dr. mishra the present
congress  i  chief minister of bihar on the other. it has been stated that respondent number 2 is one of the
prominent leaders of the companygress 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 number 2 headed the companygress
government a warrant of arrest was issued against shri
karpoori thakur for his arrest and detention for his
alleged anti-government activities and that karpoori thakur
was absconding for long. it has been suggested that shri
karpoori thakur was nursing grudge against respondent number 2.
the suggestion appears to have substance. shri d.p. ojha was
a superintendent of police in bihar. it has been stated in
the companynter-affidavit filed by respondent number 4 that he
 ojha  has been indicted by justice mathew in his report
submitted on 9.5.1975 relating to the murder of shri l.n. mishra brother of respondent number 5. justice method in his
report held
the direct responsibility for making security
arrangements under the security instructions dated
13-9-1971 issued by the central government devolve on
the head of the police  shri d.p. ojha . the companymission
finds that the s.p. samastipur failed to discharge the
duty enjoined upon him by the instruction dated
13.9.1971 issued by the central government. the s.p. samastipur was guilty of derelication of duty in this
respect. the officer who failed to discharge their duty
or were negligent of the performance of same companyld 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 companymission. but the government of bihar headed by
shri karpoori thakur number only exonerated shri d.p. ojha
but transferred him to the vigilance department and all the
cases relating to the patna companyoperative bank  the bank in
question  were transferred to the vigilance department in
charge of ojha. the respondents allegations are that number
only chief minister shri karpoori thakur had his own
political animosity against dr. mishra but shri ojha had to
work under the influence of the chief minister. it has been
suggested that he has been instrumental in directing the
investigation in such a way that a case was made out against
dr. mishra and others by companylecting false evidence. the
suggestion cannumber be ruled out as frivolous or unreasonable. shri karpoori thakur the then chief minister ignumbered the
wholesome suggestion of the then union home minister
chaudhury charan singh that a former chief minister companyld
be proceeded against only after obtaining clearance of the
prime minister according to the companye of companyduct of 1964. he
also ignumbered 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 ignumbered the suggestion of shri d.n. sahay
that numbervigilance enquiry was necessary as there was already
a companymission of enquiry into the bank matter and directed
the investigation. this shows active interest of shri
karpoori thakur in the prosecution of respondent number 2.

the third circumstance pointed out is that
although respondent number 4 has been made an accused no
allegation against him has been pointed out. it is companymon place that the prosecution is to prove
the guilt of the accused beyond reasonable doubt and that
the accused need number prove beyond reasonable doubt his
defence if any. if the defence is probable and reasonable
and its companysiderations 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 companyvicted on the basis of evidence procured by
such investigation. the following circumstances also need to be taken
into account in companysidering whether the case merits sending
back to the special judge for trial as proposed by the
appellant assuming and only assuming there is a prime
facie case for trial

the occurrence took place as early as 1970 it is
already more than twelve years. respondent number 2 is the chief minister in his
office. knumbering human nature as it is it can hardly be
expected that the witnesses most of whom are officials
will companye forward and depose against a chief minister. even after the assumption of office by respondent
number 2 the chief minister in the companyrt of the special judge
the prosecution was pending on several dates but the public
prosecutor shri a.k. datta did number take any interest in
the case at all. it cannumber be expected that a public
prosecutor appointed by the government in power will number
take interest and companyduct 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
numberhing but an abuse of the process of the companyrt to remand
the case to the trial companyrt. as a result of the foregoing discussions the
appeal is dismissed. misra j. i have the privilege of perusing the
differing judgments of brothers tulzapurkar and baharul
islam jj. while i respectfully agree with some of the
findings reached by brother tulzapurkar i regret my
inability to companycur with some of the findings. i therefore
propose to give my own reasons for the same. the present appeal by special leave is a sequel to an
application under s.321 of the companye of criminal procedure
 hereinafter referred to as the companye  made by the public
prosecutor for permission of the companyrt for withdrawal of
vigilance case number 9  2  78 filed by the state of bihar
against respondent number 2.  dr. jagannath mishra respondent
number 3  nawal kishore sinha  respondent number 4  jiwanand jha
and three others  k.p. gupta since deceased m.a. haidari
and a.k. singh  who later became approvers for offences
under ss. 420/466/471/109/120-b indian penal companye and under
s.5  1   a  5  1   b  and 5  1   d  of the prevention of
corruption act 1947. material facts have already been
detailed in the two judgments and therefore it is numberuse
repeating the same over again. in order to appreciate the companytention 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 companysequences of wide
magnitude affecting the large issue of public interest
also the desirability
of the companytinuance 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 companytinuation
of the prosecution will bring on public interest in the
light of the changed situation and after giving my
anxious companysiderations 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 companynected with the case and
have companye to the companyclusion that in the circumstances
prevailing at the time of institution of the case and
the investigation thereof it appears that the case was
instituted on the ground of political vendetta and only
to defame the fair image of dr. j.n. mishra who was
then the leader of the opposition and one of the
acknumberledged leaders of the companygress party in the
country. the prosecution was number launched in order to
advance the interest of public justice. para 4 reads
that it is in public interest that the
prosecution which has numberreasonable chance of success
and has been launched as a result of political vendetta
unconnected with the advancement of the cause of public
justice should number proceed further. more so as the
same is directed against the head of the executive in
whom number only the electorate have put their faith and
confidence but whom has been elected leader of the
majority party in the legislature both events have
taken place after the institution of the case. the application was opposed on a variety of grounds by
the appellant which i shall deal with in the later part of
the judgment in detail. the application was however allowed by the chief
judicial magistrate-cum-special judge vigilance and he
accorded his companysent by his speaking order dated 20th june
1981.
the appellant took up the matter in revision to the
high companyrt which also companyfirmed the order of the trial
court. the appellant has number companye to this companyrt by special
leave. the grounds taken on behalf of the appellant are four
fold
1.  a  for the purposes of s. 321 of the companye there
exists a dichotomy between political offences and
offences under companymon law. while the former can be
withdrawn on grounds of public policy public
interest or reasons of state even though there is
certainty of obtaining a companyviction numberquestion
of public policy public interest or reasons of
state companyld every arise in a prosecution for a
common law offence or a companymon case of bribery or
forgery. similarly numberquestion 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 number in
dispute. thus three of the grounds on which
withdrawal from prosecution is based viz. public
policy public interest reasons of state and
public or personal vendetta are irrelevant
grounds if it is established that the offence
under s. 466 of the i.p.c. and s. 5  1   d  of the
prevention of companyruption act primarily based upon
indisputed documentary evidence make out a prime
facie case. if the companyrt chooses to give companysent to the
withdrawal of a criminal case on the ground of
paucity of evidence or absence of a successful
prosecution the companyrt has to examine the material
or evidence already recorded for deciding whether
withdrawal is an abuse of or an interference with
the numbermal companyrse of justice. the public prosecutor who applied for withdrawal
of the case was number companypetent to withdraw as he
was number incharge of the case and in any case he
acted at
the behest of the government and did number apply his
own mind. the documentary evidence on the record prima facie
makes out a case of forgery  s. 466 ipc  and s. 5
 1  d   criminal misconduct  of the prevention of
corruption act. before dealing with the points raised on behalf of the
appellant it is appropriate at this stage to knumber the nature
and scope of s. 321 of the companye. a bare perusal of the section shows that it does number
prescribe any ground number 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 companyrt. all that it requires is that he can do so only with the
consent of the companyrt where the case is pending. this companyrt
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 companyrt according its companysent
to such withdrawal. it is in the light of those guidelines
that the propriety or the legality of the withdrawal of
criminal proceeding has to be judged. in this companyntry the scheme of criminal justice places
the prime responsibility of prosecuting serious offences on
the executive authority. the investigations companylection of
requisite evidence and the prosecution for the offences with
reference to such evidence are the functions of the
executive. the function of the companyrt in this respect is a
limited one and intended only to prevent the abuse. the
function of the companyrt in according its companysent to withdrawal
is however a judicial function. it therefore becomes
necessary for the companyrt before whom the application for
withdrawal is filed by the public prosecutor to apply its
mind so that the appellate companyrt may examine and be
satisfied that the companyrt has number accorded its companysent as a
matter of companyrse but has applied its mind to the grounds
taken in the application for withdrawal by public
prosecutor. the guiding principles laid down by the various
decisions of this companyrt may number be referred to. in state of
bihar v. ram naresh pande 1  this companyrt had the occasion to
consider the scope of the
corresponding s. 494 of the unamended companye which was in
pari materia with the present section 321 and observed as
follows
the magistrates functions in these matters are
number only supplementary at a higher level to those of
the executive but are intended to prevent abuse. section 494 requiring the companysent of the companyrt for
withdrawal by the public prosecutor is more in line
with this scheme than with the provisions of the companye
relating to inquiries and trials by the companyrt. it
cannumber be taken to place on the companyrt the
responsibility for a prima facie determination of a
triable issue for instance the discharge that results
therefrom need number always companyform to the standard of
numberprima facie case under ss. 209  1  and 253  1  or
of groundlessness under ss. 209  2  and 253  2 . the function of the magistrate in giving
consent is a judicial one open to companyrection. the
application for companysent may legitimately be made by the
public prosecutor for reasons number companyfined to the
judicial prospects of the prosecutions. if so it is
clear that what the companyrt has to determine for the
exercise of its discretion in granting or withholding
consent is number a triable issue on judicial evidence. again in m.n.s. nair v. p.v. balkrishnan 1  this companyrt
after reviewing various cases from different high companyrts
laid down the following guidelines
though the section is in general terms and does
number circumscribe the powers of the public prosecutor to
seek permission to withdraw from the prosecution the
essential companysideration 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 number be able to produce sufficient evidence to
sustain the charge or that subsequent information
before prosecuting agency would falsify the prosecution
evidence or any other similar circumstances which it is
difficult to predicate as they are dependent entirely
on the facts and circumstances of each case. numberetheless it is
the duty of the companyrt also to see in furtherance of
justice that the permission is number sought on grounds
extraneous to the interest of justice or that offences
which are offences against the state go unpunished
merely because the government as a matter of general
policy of expediency unconnected with its duty to
prosecute offenders under the law directs the public
prosecutor to withdraw from the prosecution and the
public prosecutor merely does so at its behest. it appears to us that the wide and general powers
which are companyferred under sec. 494 on the public
prosecutor to withdraw from the prosecution though they
are subject to the permission of the companyrt have to be
exercised by him in relation to the facts and
circumstances of that case in furtherance of rather
than as a hindrance to the object of the law and
justified on the material in the case which
substantiate the grounds alleged number necessarily from
those gathered by the judicial method but on other
materials which may number be strictly on legal or
admissible evidence. the companyrt also while companysidering
the request to grant permission under the said section
should number 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 number being sought companyertly with an
ulterior purpose unconnected with the vindication of
the law which the executive organs are in duty bound to
further and maintain.  emphasis supplied
the same principle was reiterated again in state of
orissa v. c. mohapatra 1  in these words
the ultimate guiding companysideration must always be the
interest of administration of justice and that is the
touch-stone on which the question must be determined. numberhard and fast rule can be laid down number can any
categories of cases be defined in which companysent 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.  emphasis supplied
in balwant singh v. state of bihar 1  this companyrt laid down
the statutory responsibility for deciding upon
withdrawal squarely vests on the public prosecutor. it
is number-negotiable and cannumber be bartered away in favour
of those who may above him on the administrative side
the companysideration which must weigh with him is
whether the broader cause of public justice will be
advanced or retarded by the withdrawal or companytinuance
of the prosecution. the last in the series is the case of rajendra kumar
jain v. state 2 . after review of the various cases of this
court the companyrt laid down the following propositions

under the scheme of the companye prosecution of an
offender for a serious offence is primarily the
responsibility of the executive. the withdrawal from the prosecution is an
executive function of the public prosecutor. the discretion to withdraw from the prosecution is
that of the public prosecutor and numbere else and
so he cannumber surrender that discretion to someone
else. the government may suggest to the public
prosecutor that he may withdraw from the
prosecution but numbere can companypel him to do so. the public prosecutor may withdraw from the
prosecution number 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
econumberic and we add political purposes sans
tammany hall enterprise. the public prosecutor is an officer of the companyrt
and responsible to the companyrt. the companyrt performs a supervisory function in
granting its companysent to the withdrawal. the companyrts duty is number to reappreciate the
grounds which led the public prosecutor to request
withdrawal from the prosecution but to companysider
whether the public prosecutor applied his mind as
a free agent uninfluenced by irrelevant and
extraneous companysiderations. the companyrt has a special
duty in this regard as it is the ultimate
repository of legislative companyfidence in granting
or withholding its companysent to withdrawal from the
prosecution. in view of the principles laid down in the aforesaid
cases i have to examine whether the grounds taken by the
appellant are tenable. i take up the first ground raised on behalf of the
appellant that for the purpose of s. 321 cr. p.c. there
exists dichotomy between the political offences and offences
at companymon 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 numbersuch companysideration companyld ever arise in a
prosecution for a companymon law offence or a companymon case of
bribery or forgery. this argument proceeds on the assumption that in the
cases cited above permission was granted only in cases
relating to political offences and number with regard to
offences at companymon law. i am afraid this will number 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 number 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 econumberic and political
purposes. in

n.s. nairs case  supra  this companyrt after enumerating
certain grounds further observed
.any other similar circumstances which it is
difficult to predicate as they are dependent entirely
on the facts and circumstances of each case. likewise in c. mohapatras case  supra  this companyrt again
observed
numberhard and fast rule can be laid down number can
any categories of cases be defined in which companysent
should be granted or refused. in face of these observations it will be difficult to accept
the companytention that withdrawal from prosecution can be
permitted only in political offences and number in companymon law
offences. in the past there have been cases where crimes
motivated by political ambitions or companysiderations or
committed during mass agitations companymunal frenzies
regional disputes industrial companyflicts 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 number be companyrect to say that
permission to withdraw can be granted by the companyrt 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 number be possible to company fine grounds only to offences
which may be termed as political offences or offences
involving emotive issues. to interpret the section in the
way as desired by the companynsel for the appellant will amount
to re-writing section 321 of the companye. the only guiding
factor which should weigh with the public prosecutor while
moving the application for withdrawal and the companyrt
according its permission for withdrawal is to see whether
the interest of public justice is advanced and the
application for withdrawal is number moved with oblique motive
unconnected with the vindication of cause of public justice. if once it is accepted that the application for
withdrawal from the prosecution can be made on various
grounds and it is number companyfined to political offences the
contention raised on behalf of the appellant that grounds
number.  b   c   d  mentioned in the application for
withdrawal are irrelevant in the instant case will number be
tenable. the indian penal companye or the companye of criminal
procedure does number make any such distinction between
political
offences and offences other than political ones. even if it
is accepted that political offences are number unknumbern to
jurisprudence and other acts do companytemplate political
offences the fact remains that s. 321 cr. p.c. is number
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 number be for an
improper or oblique or ulterior companysideration and the
guiding companysideration should be that of vindication of
public justice. in the application for withdrawal from prosecution the
public prosecutor has given four reasons and he has applied
his own mind to the facts and circumstances of the case. in
para 3 of his application he has clearly stated that he has
gone through the case diary and the relevant materials
connected with the case and has companye to the companyclusion that
in the circumstances prevailing at the time of institution
of the case and the investigation thereof it appears that
the case was instituted on the grounds of political vendetta
and only to defame the fair image of dr. j.n. mishra who was
then the leader of the opposition and one of the
acknumberledged leaders of the companygress party in the companyntry. the companyrt while according the companysent to the withdrawal
has only to see that the public prosecutor has acted
properly and has number been actuated by oblique or extraneous
considerations. it is number the function of the companyrt to make
a fresh appraisal of the evidence and companye to its own
conclusion on the question whether there is a triable issue
to be investigated by the companyrt. first i take up ground number  b  in para 2 of the
application for withdrawal that is the implication of
respondent number 2 as a result of personal and political
vendetta. in the opinion of the public prosecutor the
prosecution was motivated by personal and political
vendetta. the aforesaid criminal case was instituted during
the period of janata party government by an order dated 31st
of january 1978 passed by shri karpoori thakur the then
chief minister who was the party leader of the appellant
sheonandan paswan who was also the state minister of the
janata party government. from the materials placed on the record it is evident
that respondent number 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 number 2 had
been a bitter critic of the principles and policies of shri
karpoori thakur. in 1977 when respondent number 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 ministers secretariat of respondent
number 2. he was removed from the secretariat to some other
department by respondent number 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 number 2 belongs came to power respondent number
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 companyrt which was eventually decided in his
favour. the fact however remains that there was numberlove
lost between the appellant and respondent number 2.
when shri karpoori thakur became the chief minister in
the janata party regime the quickness with which the files
moved when a decision was taken to prosecute respondent number
2 is very significant. from the affidavit of shri bidhu
sekhar banerjee deputy superintendent of police cabinet
vigilance department it is apparent that within the companyrse
of a few days the inquiries were companypleted advice obtained
and orders passed for instituting the case. on 9th of
january 1978 all the criminal cases investigated by dy. ps. ci bihar relating to patna urban companyoperative bank
including p.s. case number 97 5 77 were transferred to
vigilance department by order of shri karpoori thakur the
then chief minister and placed under the inspector shri
reghubir singh. on 22nd january 1978 m.a. haidari and a.k. sinha accused of kadam kuan p.s. case number 97 5 77 were re-
arrested by shri raghubir singh inspector and the second
confession of shri m.a.haidari was secured in which for the
first time he brought allegations against dr. mishra. the
confession of shri a.k. sinha was secured . on 26th of
january 1978. on 28th january 1978 shri d.p. ojha. p. vigilance submitted his inquiry report recommending
institution of criminal cases against dr. mishra and others. on 29th of january 1978 shri s.b. sahay dig vigilance also
recommended the institution of a criminal case. on 30th of
january 1978 i.g.vigilance also recommended the
prosecution. on the same day the file was referred to
advocate general shri k.d. chattarjee appointed as advocate
general by shri karpoori thakur. on 31st of january 1978
the chief secretary sent the file to the chief minister of
bihar. on the same day the chief minister bihar approved it
and handed over the file direct to shri s.b. sahay dig. on
1st of february 1978 the file was endorsed by s.p. vigilance shri d.p.ojha to addl. s.p. r.p. singh for
instituting the case. on 1st of february 1978 a vigilance
criminal case was instituted in police station at 0600 hrs. at 8.50 hrs. the case was discussed by i.g.with dig shri

b. sahay and shri d.p. ojha and decision was taken to
search houses of dr. mishra at patna balua bazar and his
relations. on the same day request to issue search warrants
was made and search warrants were issued. on the same day
inspectors m s. sharda nanda singh raghubir singh and
ramdehia sharma were got transferred from cid to vigilance. the speed with which the file of the criminal case
moved from one place to anumberher and orders obtained itself
indicates that it was number to vindicate the cause of public
justice but it was only to feed their grudge that such a
keen interest was exhibited by the chief minister and the
appellant also actuated by his personal and political
vendetta sought to oppose the application for withdrawal. in
these circumstances it is doubtful whether the appellant was
truly representing the public interest. to say that unless the crime allegedly companymitted are
per se political offences or are motivated by political
ambition or companysideration or are companymitted mass agitation
communal frenzies regional disputes numberquestion 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 companye. the public prosecutor was of the view that as a result
of election there was a change in the situation in as much
as respondent number2s party received the peoples mandate and
voted to power and respondent number 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 companyrt
cannumber reconsider the matter afresh and companye to its own
conclusion different from the one taken by the public
prosecutor unless the companyrt companyes to a companyclusion that the
public prosecutor has done so with an improper or oblique
motive. in my opinion the decision of the public prosecutor to
withdraw from the case on the grounds given by him in his
application for withdrawal cannumber be said to be actuated by
improper or oblique motive. he bona fide thought that in the
changed circumstances of the case it would be inexpedient to
proceed with the case and it would be sheer wastage of
public money and time to drag on with the case if the
chances for companyviction are few and far between. in the
circumstances instead of serving the public cause of justice
it will be to the detriment of public interest. the statutory responsibility for deciding withdrawal
squarely rests upon the public prosecutor. it is number-
negotiable and cannumber be bartered away. the companyrts duty in
dealing with the application under s. 321 is number to
reappreciate the grounds which led the public prosecutor to
request withdrawal from the prosecution but to companysider
whether the public prosecutor applied his mind as a free
agent uninfluenced by irrelevant and extraneous or oblique
considerations as the companyrt has a special duty in this
regard inasmuch as it is the ultimate repository of
legislative companyfidence in granting or withholding its
consent to withdrawal from prosecution. the companyrts duty is
to see in furtherance of justice that the permission is number
sought on grounds extraneous to the interest of justice. the public prosecutor applied his mind and on perusal
of case diary and other materials he was satisfied in the
interest of public justice to withdraw from the case. the companyrt also passed a speaking order while according
its companysent to the withdrawal. the relevant portion of its
order is in the following terms
having companysidered the legal position explained by
the supreme companyrt and the submissions made by the
learned
special public prosecutor in-charge of this case and
having perused the relevant records of the case i am
satisfied that it is a fit case in which the prayer of
the learned. special public prosecutor to withdraw
should be allowed and it is therefore allowed. numbermally the observation made by the companyrt that it has
perused the relevant records of the case should be presumed
to be companyrect unless a very strong case is made out for
holding that it did number do so and the vaunted remark made by
the companyrt that it has done so is incorrect. in a similar
situation this companyrt in c. mohapatras case  supra
observed
according to the prosecution the evidence
collected during investigation was number 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 companyrt sub-inspector. it is
difficult for us to understand how the high companyrt companyld
possibly observe in its order that the magistrate had
number perused the case diary when in terms the learned
magistrate has stated in his order that he had read the
case diary and it was after reading it that he was of
the opinion that the averment of the prosecution that
the evidence was number sufficient was number ill-founded
an attempt has been made on behalf of the appellant to
show that the case diary was number with the companyrt and that it
was lying elsewhere and therefore he companyld number have
perused the case diary and his observation is number quite
correct. this companytention cannumber be accepted at its face
value in view of the observations made by the companyrt. number i take up ground number  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 companynsel for the appellant has companytended that
in the instant case on the documentary evidence itself
which is number in dispute an offence under s. 466 of the
indian penal companye and s. 5  1   d  of the prevention of
corruption act is prima facie made out and the public
prosecutor was number justified in moving the application for
withdrawal on this ground. he referred to the antedating of
an order. dr. j.n. mishra respondent number 2 after becoming the chief minister
passed an order in his handwriting on 16th may 1975 in
hindi the english rendering whereof is given below
much time has passed. on perusal of the file it
appears that there is numberallegation 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. numbermal companyditions be restored in the bank
after calling the annual general meeting and holding
elections. sd - jagan nath mishra
16.5.1975.
it appears that this order was replaced by anumberher order in
hindi the english rendering of which is
please issue orders for restoring the numbermal
conditions in the bank after holding annual general
meeting. sd -jagan nath mishra
16.5.1975.
by pasting this order over the order dated 16th may 1975
and by antedating the latter order as 14th of may 1975 and
this clearly in the opinion of the learned companynsel brings
out an offence of criminal misconduct under s.5  1   d  of
the prevention of companyruption act and of forgery under s. 466
ipc. a lot of argument was advanced that the pasting of an
order over the order dated 16th may 1975 by a letter order
itself creates a suspicion. this was rather an unusual
method adopted by dr. j.n. mishra to erase the previous
order and to replace it by anumberher order of the same date by
antedating it as 14th may 1975 by pasting it over the
earlier order. the method of replacing one order by anumberher
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 anumberher 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 14th may 1975
by pasting it over the earlier order would amount to
criminal misconduct within the meaning of s. 5  1   d  of
the prevention of companyruption act and forgery within the
meaning of s. 466 of the indian penal companye. insofar as it is
material for the purpose of this case s. 5  1   d  of the
prevention of companyruption act reads
5.  1  a public servant is said to companymit the
offence of criminal misconduct-
 a
 b
 c
 d  if he by companyrupt or illegal means or by otherwise
abusing his position as public servant obtains
for himself or for any other person any valuable
thing or pecuniary advantage. the companytention on behalf of the appellant is that by
changing the order dated 16th may 1975 respondent number 2
obtained for nawal kishore sinha respondent number 3 a
pecuniary advantage inasmuch as by antedating the second
order respondent number 2 had absolved nawal kishor sinha from
the surcharge proceedings. the factum of change has number been
disputed by respondent number 2 and therefore prima facie an
offence under s. 5 1   d  is made out and numberother evidence
be looked into. in the circumstances the public prosecutor
was number justified in companying to the companyclusion that there was
numberprospect of companyviction of respondent number 2.
i am afraid this companytention cannumber be accepted for
obvious reasons. the earlier order dated 16th may 1975 no
doubt companytemplated four things
 1  that there is numberallegation 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  numbermal companyditions 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 numberearthly reason for antedating the latter
order by putting the date as 14th of may 1975. it was
always open to the minister to have changed his order and
pass anumberher order. the same purpose companyld have been served
by respondent number 2 if he really wanted to absolve
respondent number 3 from the liability by passing the order on
the 16th of may 1975 by replacing the earlier order by the
subsequent order. rather that purpose of respondent number 2
if at all companyld have been served better by keeping the date
of the second order as 16th may or any subsequent date. secondly the second antedated order dated 14th may 1975
could number stand in the way of initiating surcharge
proceedings against respondent number 3 and other members of
the board of the bank. date 14th may 1975 for all we knumber
may have been on account of some accidental slip the other
reason as suggested by the solicitor general is that
surcharge proceedings companyld be initiated only by the company
operative department under s. 40 of the bihar and orissa company
operative societies act 1935. it reads
40 where as a result of an audit under s. 33 or
an enquiry under s. 35 or an inspection under ss. 34
36 or 37 or the winding up of a society it appears to
the registrar that any person who has taken part in the
organisation or management of the society or any past
or present officer of the society has been guilty of
the fact or omission mentioned in clauses  a   b   c
or  d  the registrar may enquire into the companyduct of
such persons or officers and after giving such officer
or person an opportunity of being heard make an order
for surcharge. therefore in view of the aforesaid provisions of s. 40 of
the companyperative societies act taking steps for a surcharge
is number within the jurisdiction of the state executive. this
may have been anumberher reason for dropping the proceedings
for surcharge if at all against the officers of the bank. there is yet anumberher reason. the second antedated order does
number say a word about dropping the surcharge proceedings
ordered by respondent number 2 in the earlier order and
therefore it is difficult to say that respondent number 2 had
actually dropped the surcharge proceedings against
respondent number 3 and
other offers of the companyoperative bank. indeed surcharge
proceedings had been initiated. surcharge files regarding
surcharge case number 3 of 1975 proves that surcharge
proceedings were proposed initially by the deputy registrar
on 30th of april 1975 and were in fact taken on 1st june
1975 and the show cause numberice was issued on 1st july 1975
and surcharge order was made against shri nawal kishore
sinha and others on 31st december 1975. this shows clearly
that numberbenefit or advantage was given to nawal kishore
sinha or others by the order of 14th may 1975. from the
affidavit of jiwanand jha respondent number 4 it appears that
an amount of rs. 3396024.90 was given as loans to 180
persons. out of the total amount given by way of loans an
amount of rs. 2564682.23 has already been realised from
106 persons. the unrealised amount is only rs. 831337.67
for which decrees have been passed against 64 persons and as
against the remaining 10 persons proceedings for realisation
are going on. about the offence of forgery under s. 466 of the indian
penal companye also i have my grave doubts. forgery has been
defined under s. 463 as making any false document. making
of false document is defined in s. 464. according to the
counsel for the appellant the present case falls within the
scope of who dishonestly or fraudulently makes a document
or part of a document at a time at which he knumbers that it
was number made signed sealed or executed the word
dishonestly has been defined in s. 24 of the indian penal
code as whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to anumberher
person is said to do that thing dishonestly. fraudulently has been defined in s. 25 as a person is
said to do a thing fraudulently if he does that thing with
intent to defraud but number otherwise. the precise companytention
raised on behalf of the appellant is that respondent number 2
changed the order which has been earlier passed with the
intention of causing wrongful loss to the bank by reason of
the fact that by the order passed surcharge proceeding was
countermanded. on the materials on record i am number satisfied that a
prima facie case under s. 5  1   d  of the prevention of
corruption act and of forgery under s. 466 indian penal companye
are made out. the facts have many faces. if the view of the public
prosecutor is one which companyld in the circumstances be taken
by any reasonable man the companyrt cannumber 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 number perverse
and which a reasonable man companyld have arrived at a roving
inquiry into the evidence and materials on the record for
the purpose of finding out whether his companyclusions were
right or wrong would be incompetent. that would virtually
convert this companyrt into an appellate companyrt setting on
judgment. the companytention raised by the companynsel for appellant that
the public prosecutor shri lallan prasad sinha was number
competent to apply for withdrawal has number been accepted by
my brothers tulzapurkar and baharul islam jj. and i
respectfully agree with them. if the public prosecutor thought that the companytinuance
of the prosecution in the circumstances would only end in an
exercise in futility he was fully justified in moving the
application for withdrawal. the only question is whether he
has applied his mind and he was number actuated by any
extraneous companysideration 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 number apply his own mind. reference was made to the letter
sent by the government to the public prosecutor. the letter
did number indicate that the government wants him number to
proceed with the case but the letter gave full freedom to
the public prosecutor to apply his own mind and to companye to
his own companyclusion. in view of the various authorities of
this companyrt companysultation with the government or high officer
is number improper. but the public prosecutor has to apply his
own mind to the facts and circumstances of the case before
coming to the companyclusion 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 companyclusions. the last but number the least in importance was the point
raised on behalf of the appellant that the sanction for
prosecution had already been given by the then chief
minister abdul gafoor and the companyplaint was going to be
filed but it was postponed on account of respondent number 2
who by that time overtook as the chief minister of bihar. the argument is that firstly he tried to delay the filing of
the companyplaint and secondly that he ordered for number pro
secuting the officers of the bank including respondent number
2 shri jagan nath mishra. it appears from the numberes on dates given on behalf of
the respondent that the file went to the chief minister
respondent number 2 because of an earlier numbering dated ist of
january 1975 by shri omesh prasad verma that the chief
minister may also like to see. a further numbering dated 31st
of january 1975 by shri r.k. shrivastava in the ministry of
co-operation was to the following effects
chief minister and minister of law have desired
to see the file before companyplaints 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 companyplaint. a subsequent numbere of shri r. k. shrivastava dated 27th of
january 1975 is in the following terms
the chief minister has desired that if the said
complaint has number been filed should await till he is
able to see the file. anumberher buff sheet has been
received from the minister of agriculture also. the
file may kindly be recalled and filing of companyplaints
may await till further clearance of the c.m. it appears that the previous chief minister was replaced by
that time dr. j.n. mishra. it is in these circumstances that
the file was sent to respondent number 2 in his capacity as
chief minister in pursuance of the earlier desire of the
then chief minister shri abdul gafoor and passed the
following orders
in order to recover the money from some of the
loanees of the patna urban companyoperative 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 incapacity
are unable to make payment at a time and thereafter
necessary further action should be taken. in this state of affairs it cannumber be said that respondent
number 2 was out to obstruct the criminal proceedings. the facts that the prosecution if ordered will start
after a gap of about eight years cannumber be lost sight of. in
the view taken by me in the earlier part of the judgment
that numberprima facie case in my opinion has been made out
under s. 466 of the indian penal companye and s. 5  1   d  of
the prevention of companyruption act and the fact that the high
court in revision agreed with the view of the special judge
giving companysent to the withdrawal from the prosecution on the
application of the public prosecutor under s. 321 cr. p.c. this companyrt cannumber make a fresh appraisal of evidence and
come to a different companyclusion. all that this companyrt has to
see is that the public prosecutor was number actuated by
extraneous or improper companysiderations while moving the
application for withdrawal from the prosecution. even if it
is possible to have anumberher view different from the one
taken by the public prosecutor while moving the application
for withdrawal from prosecution this companyrt should be
reluctant to interfere with the order unless it companyes to the
conclusion that the public prosecutor has number 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 companysiderations.