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PETITIONER:

ABDUL KARIM ETC. ETC.

Vs.

RESPONDENT:

STATE OF KARNATAKA & OTHERS ETC. ETC.

DATE OF JUDGMENT: 07/11/2000

BENCH:

S.P. Bhuracha, & D.P. Mohapatra.

JUDGMENT:

Bharucha, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

The border between the States of Karnataka and Tamil

Nadu runs through mountainous forest. On about 16,000 acres

of this forestland, half in Karnataka and half in Tamil

Nadu, a man named Veerappan has held sway for more than 10

years. He is alleged to have poached elephants and smuggled

out ivory and sandalwood in a very big way. He is alleged

to be guilty of the most heinous crimes, including the

murder of 119 persons, among them Police and Forest

Officers, and kidnapping. Task forces set up by the States

of Karnataka and Tamil Nadu for the purpose have been unable

to apprehend him and bring him to justice for 10 years.

On the night of 30th July, 2000, between 20.45 and 21.10

hours, Veerappan abducted from Gajanoor a film actor named

Rajkumar, who is very popular in Karnataka, and three

others, namely, Govindraj, who is a son-in-law of Rajkumar,

Nagesh, who is a relative of Rajkumar, and Nagappa, who is

an Assistant Film Director. As of today, Rajkumar and

Nagesh remain in Veerappans custody. Nagappa is said to

have escaped and Govindraj was released by Veerappan.

Gajanoor is a town in Tamil Nadu close to the border with

Karnataka.

On 8th July, 1999 the Director General of Police of the

State of Karnataka had informed the Inspector General of

Police of the State of Tamil Nadu that it had been reliably

learnt that Veerappan intended to kidnap Rajkumar during the

latters visit to his farmhouse in Gajanoor and had

requested adequate security arrangements for Rajkumar

whenever he visited Gajanoor. The record before us reveals

that Rajkumar did not want police protection and considered

the presence of the police a problem. He had visited

Gajanoor on 22nd June, 2000, but no information in this

behalf had been intimated to the police authorities at

Gajanoor; however, they had come to know of his presence

and had made security arrangements. No information had been

received in regard to the visit of Rajkumar to Gajanoor on

28th July, 2000, and they had not learnt of it until after

the kidnap.

At the time of the kidnapping, Veerappan handed over to

Rajkumars wife an audio cassette to be delivered to the

Chief Minister of the State of Karnataka. The audio

cassette required that he send an emissary to Veerappan. On

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31st July, 2000 the Chief Ministers of the States of

Karnataka and Tamil Nadu met in Chennai and decided to send

as an emissary one Gopal, he having served as an emissary

when, on 12th July, 1997, Veerappan had kidnapped nine

Forest Officers of the State of Karnataka and he had

obtained their release thereafter. On 1st August, 2000

Gopal left on his first mission to meet Veerappan in the

forest along with two members of his staff and a

videographer. On 5th August, 2000 Gopal sent an audio

cassettee to Chennai which, in the voices of Veerappan and

an associate, set out ten demands for the release of

Rajkumar. On the next day, that is, 6th August, 2000, the

Chief Ministers of the States of Karnataka and Tamil Nadu

met in Chennai to discuss the demands and their responses

were made public at a press conference held on that very

day.

The ten demands and the responses thereto, as released

to the Press, are as follows :@@

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DEMAND :

1. Permanent solution for the Cauvery water issue and

implementation of the interim orders of the Cauvery

Tribunal.

RESPONSE :

For implementation of the interim orders, the Cauvery

River Water Authority has been set up under the

chairmanship of the Prime Minister.

DEMAND :

2. Adequate compensation for Tamil victims of 1991

riots.

RESPONSE :

Karnataka has constituted Cauvery Riots Relief

Authority as directed by the Supreme Court. About

10,000 claims have been received. The time limit for

completion of the work has been extended up to

31.5.2001.

DEMAND :

3. Karnataka Government should accept Tamil as

additional language of administration.

RESPONSE :

As per the G.O.I. instructions, Karnataka has issued

orders on 20.5.99 that where linguistic minorities

constitute more than 15 percent of the population,

Government notices, orders and rules shall be issued in

the language of the minorities as well.

DEMAND :

4. Unveiling of Tiruvalluvar statue at Bangalore.

RESPONSE :

Status of Tiruvalluvar and Sarvajna will be installed and

unveiled at Bangalore and Chennai respectively with the

participation of both the Chief Ministers.

DEMAND :

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5. Vacation of stay issued by High Court against Justice

Sathasivam Commission to enquire into the atrocities

by the Task Forces of the Two States. Compensation

for victims and punishment for those held guilty by the

Commission.

RESPONSE :

Karnataka Government will take steps to have the stay

vacated.

DEMAND :

6. Innocent persons languishing in Karnataka Jails

should be released.

RESPONSE :

TADA charges will be dropped immediately facilitating

release of the prisoners.

DEMAND :

7. Compensation for the families of nine Dalits killed in

Karnataka.

RESPONSE :

Will be considered favourably after collecting particulars.

DEMAND :

8. Minimum procurement price of Rs.15/- per kg. for tea

leaves grown in the Nilgiris.

RESPONSE :

A series of steps taken by the Central and the State

Governments has already brought about substantial

increase in the price of tea leaves from Rs.4.50 to Rs.9.50.

DEMAND :

9. Five persons now in Tamil Nadu prisons should be

released.

RESPONSE :

Will be considered favourably.

DEMAND :

10. Minimum daily wage of Rs.150/- for Coffee and Tea

Estate Workers in Tamil Nadu and Karnataka.

RESPONSE :

Estate workers in Tamil Nadu get a minimum wage of

Rs.74.62 inclusive of various allowances the wages add

upto Rs.139/- per day. Further increase through

negotiations would also be considered.

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On 11th August, 2000 Gopal returned to Chennai with a

written message and a video cassette that contained an

elaboration of two earlier demands and two new demands. The

elaboration related to the release of prisoners in the State

of Karnataka, which was reiterated, and the payment of

compensation based on the Sathasivam Commission Report. The

new demands and the responses thereto were as follows:

DEMAND :

1. Tamil should be the compulsory medium of

instruction till Standard 10 in Tamil Nadu. Tamil

should be declared official language.

RESPONSE :

The Government move to make Tamil the medium of

instruction till Standard 5 has been stayed by the High

Court and an appeal has been preferred in the Supreme

Court.

DEMAND :

2. Compensation of Rs.10 lakhs each for innocent rape

victims of Vachathi and Chinnampathi in Tamil Nadu.

RESPONSE :

Compensation has already been paid on rates determined

by Court/Commission.

On 10th August, 2000 an application was filed by the

Special Public Prosecutor under the provisions of Section

321 of the Criminal Procedure Code in fourteen cases

(Special Case Nos.44/94, 63/94, 66/94, 67/94, 119/95, 11/97,

12/97, 13/97, 14/97, 3/98, 19/98, 20/98, 21/98 and 79/99)

being heard by the Designated Court at Mysore. The cases

were filed under the provisions of the Terrorist and

Disruptive Activities Act and other penal enactments against

Veerappan and a large number of his alleged associates. The

application needs to be reproduced in extenso: "It is

submitted by the Special Public Prosecutor as follows :

A charge sheet has been filed against the acused for the

offences punishable U/sec.143, 147, 148, 341, 342, 120B,

326, 307, 302, 396 R/w 149 IPC. And U/sec. 3, 4 and 5 of

the Indian explosives Act, and U/sec.3 and 25 of the Arms

Act, and also for the offences pun.U/sec. 3, 4 and 5 of the

TADA Act, alleging that on the afternoon of 14-8-92

Veerappan along with his associates attacked the then Supt.

of Police, Mysore District, Sri. Harikrishna, and the then

S.I. of Police of M.M. Hills, Sri. Shakeel Ahamed and

other police personnel who had been to nab Veerappan on the

information furnished by the informant Kamala Naika, who

also died in the incident, and also had resulted killing of

six police personnel and injuring others and damaging the

vehicles and also removing of the weapons and wire-less set

belonging to police Department.

There are in all 166 accused persons and out of which 30

accused are in custody and 48 accused are on bail.

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It is submitted by the Prosecutor that the accused who

are on bail have not repeated the offences and they have

also not involved themselves in any similar offences and

terrorist activity have not been noticed recently in the

area.

It is submitted by the Prosecutor that in order to

restore the peace and normalcy in the border area and among

the people living in the border area and to maintain peace

among the public at general and inhabitants of the

particular village, the Prosecutor has decided to withdraw

from the prosecution the charged under the offences of the

provision punishable under Sec.3,4 and 5 of the TADA.

It is submitted further by the Prosecutor that the trial

regarding other offences are being continued and the charges

under the Arms Act and Explosive Substances Act, to certain

extent cover the provisions of Sec.3 and 4 of the TADA.

Therefore, no injustice would be caused if the prosecutor

withdraws the charges for the offences punishable U/sec.3,4

and 5 of the TADA Act.

It is further submitted by the Prosecutor that as a

matter of policy, since the Central Government has already

withdrawn Central enactment, no purpose would be served

immediately the prosecution for the offences punishable

U/sec.3,4 and 5 of the TADA Act.

It is submitted by the Prosecutor that in the larger

interest of the State and in order to avoid any un-pleasant

situation in the border area, it is necessary to withdraw

from prosecution of the charges under Section 3,4 and 5 of

the TADA Act.

It is submitted by the Prosecutor that no in-justice

would be caused to the State by withdrawing from the

prosecution, the offences punishable under Sections 3, 4 and

5 of the TADA Act.

Therefore, it is submitted by the Prosecutor that the

Hon'ble Court be pleased to accord consent to the prosecutor

to withdraw the charges for the offences punishable U/s 3,4,

and 5 of the TADA Act, against the accused and the case may

be withdrawn from the Designated Court and be transferred to

the regular Sessions Court for the continuance of the trial

for the other offences in interest of justice."

The appellant in Criminal Appeal Nos.741-743/2000 before

us opposed the Special Public Prosecutor's application. He

is the father of Shakeel Ahmed who, as the application

recites, had, allegedly, been killed by Veerappan and his

associates. The appellant's statement of opposition

referred to the abduction of Rajkumar and alleged that,

consequent thereupon, the Government of the State of

Karnataka had yielded to the demands of Veerappan and had

issued notifications that it would withdraw all cases

against Veerappan and his associates, and this had been

widely publicised by the media. The statement of opposition

submitted that no cogent reasons had been given for the

decision to drop the TADA cases. It submitted that it was

the duty of the Special Public Prosecutor to inform the

court of the reasons prompting him to withdraw the

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prosecution and of the court to apprise itself of these

reasons. The Special Public Prosecutor rejoined to the

statement of opposition by contending that all cases against

Veerappan and his associates were not being withdrawn, and

they would be prosecuted. He, therefore, denied the

submission in the statement of opposition that the

Government of the State of Karnataka had yielded to

blackmail by Veerappan.

The Special Public Prosecutor's application was made

when the trial of the cases to which it related was in

progress and the evidence of 51 witnesses had been recorded.

The trial had been going on until 30th July, 2000, on the

night of which Rajkumar was abducted.

The Principal District and Sessions Judge, Mysore, was

the Special Judge designated for the trial of TADA offences.

( He is now referred to as "the learned Judge.") On 19th

August, 2000 the learned Judge passed on the Special Public

Prosecutor's application the order that is impugned in these

appeals. He set out in paragraphs 2 to 6 the details of the

cases before him, thus:

" 2. The Special Cases in nos.44/1994, 11/1997 and

3/1998 arise out of a charge sheet in Crime No.70/1992 of

Ramapura Police Station against Veerappan and others for

offences under Sections 143, 147, 148, 341, 342, 120-B, 326,

307, 302, 396 r/w 149 of I.P.C., Sections 3, 4 and 5 of

Indian Explosives Act, Sections 3 and 25 of the Arms Act and

also under Sections 3, 4 and 5 of the Terrorist and

Disruptive Activities Act, alleging that on the after-noon

of 14-8-1992, Veerappan and Associates had attached the then

Superintendent of Police, Mysore, Sri Harikrishna and the

then Sub-Inspector of Police Sri Shakeel Ahamed and other

Police Personnel, who had been to nab Veerappan and in the

encounter, six Police Personnel were killed and many of them

were injured and vehicles were damaged and the weapons and

wireless set belonging to the Police Department were taken

away. The charge sheet had been laid against 168 persons,

of them 30 accused are in custody and 45 are on bail and

rest of them are shown as absconding.

3. The Special Case Nos.63/1994, 13/1997 and 20/1998

arise out of a charge sheet filed in Crime No.41/1992 of

Ramapura Police Station against Veerappan and 162 others

alleging that on the night of 19/20-5-1992, the accused had

attacked Ramapura Police Station and caused death of five

Police Personnel and caused injuries to other Police staff,

thereby the accused are said to have committed offences

punishable u/ss. 302, 307, 324, 326, 396 r/w 149 I.P.C.,

Sections 3 and 25 of Indian Arms Act, Sections 3, 4 and 5 of

the Terrorist and Disruptive Activities Act. Of the said

accused, 46 accused are on bail and 30 accused are in

custody and rest of them have been shown to be absconding.

4. The Special Case Nos.66/1994, 14/1997 and 21/1998

arise out of a charge sheet submitted by M.M. Hills Police

in Cr.No.12/1993 alleging that the accused had attacked

Police Personnel on 24-5-1993 near Rangaswamy Voddu on M.M.

Hills - Talabetta Road, near 18/28 S : Curve and in the

attack the Superintendent of Police Sri Gopal Hosur and his

driver Ravi were injured and six Police Personnel were

killed and four Police Personnel were injured and thereby

the accused are said to have committed offences punishable

under Sections 143, 148, 120B, 341, 353, 395, 302, 109, 114

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r/w 149 IPC, Sections 3, 4 and 5 of Indian Explosives Act,

Sections 3 and 25 of Indian Arms Act and also U/S 3, 4 and 5

of the Terrorist and Disruptive Activities Act. The

chargesheet has been submitted against 98 accused persons.

Of them, 7 accused are on bail, 26 accused are in custody

and others are shown to be absconding.

5. The Special Cases Nos.67/1994, 12/1997 and 19/1998

arise out of a chargesheet submitted by M.M. Hills Police

against 143 accused persons alleging that on 9-4-1993 at

Sorekayee Madu the accused had attacked and killed 22

persons belonging to both Police and Forest Department and

their informants by planting bombs in the forest area of

Palar and thereby the accused are said to have committed

offences punishable u/S 143, 147, 148, 341, 342, 120B, 324,

326, 307, 302 and 396 r/w 149 of IPC, Sections 3 and 25 of

the Arms Act, 3, 4 and 5 of Indian Explosives Substances Act

and also 3, 4 and 5 of Terrorist and Disruptive Activities

Act. Of the 143 accused persons, 17 accused are on bail, 33

accused are in custody and rest of them are shown to be

absconding.

6. The Special Cases in Nos.119/1995 and 79/1999 arise

out of a charge sheet submitted by Ramapura Police in Cr.

No.5/1994 against 17 accused persons alleging that on 17-1-

1994 at Changadi Forest, the accused had attacked staff of

Special Task Force and informants of the Police and Forest

Department and killing one police personnel and one Gun- man

and thereby the accused are said to have committed offences

under Sections 143, 147, 148, 326, 307, 302 r/w 149 IPC,

sections 3 and 25 of the Indian Arms Act and also Sections

3,4 and 5 of Terrorist and Disruptive Activities Act.".

The learned Judge then noted that the trial had begun

and many material witnesses had been examined. He referred

to the pleadings in the application before him and the

arguments of the Special Public Prosecutor; among them,

"There is no terrorist activity in the area. The instant

application has been filed with an intention to maintain

peace and tranquility. He has not been directed by the

State. It is the act of the Public Prosecutor only." The

learned Judge opined that the present appellant could not be

said to be an aggrieved party who could be permitted to

raise objections to the application. He then dealt with

precedents relevant to the application and concluded that

his power was limited. It was only a supervisory power over

the action of the Special Public Prosecutor. The function

of the court was to prevent abuse. Its duty was to see, in

furtherance of justice, that the permission was not sought

on grounds extraneous to the interest of justice.

Permission to withdraw could only be granted if the court

was satisfied on the materials placed before it that its

grant subserved the administration of justice and it was not

being sought covertly, with an ulterior purpose unconnected

with the vindication of the law, which the executive organs

were duty-bound to further and maintain. The learned Judge

stated that it was seen from the material on record that

terrorist activity had not been noticed recently in the

area. The learned Judge did not accept the contention of

the Special Public Prosecutor that, since the TADA Act had

been withdrawn, the permission should be granted. The

learned Judge noted that it had been mentioned in the

statement of objections that Rajkumar had been abducted by

the prime accused before him; as such, he said that he

would have to take notice of this aspect. He mentioned that

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the trial of one of the special cases involved in the

application had been posted for hearing on 30th July, 2000

but, on account of the changed situation, he had felt "that

there was a likelihood of danger to the person of accused,

who are in custody, if they are insisted to be produced

before the court on the said hearing dates." The learned

Judge stated that he was satisfied that the Special Public

Prosecutor had applied his mind in filing the application.

In view of the grounds and circumstances mentioned by the

Special Public Prosecutor, he was satisfied, on the

materials placed before him, "that the grant of permission

to withdraw subserves the administration of justice and the

permission had not been sought covertly with a ulterior

purpose unconnected with the vindication of law, which the

executive organs are in duty-bound to further and maintain".

The learned Judge observed that things could have been

viewed from a different angle altogether if the Special

Public Prosecutor had sought for blanket withdrawal of the

cases against the accused; but this was not the situation

in the case on hand for the case against the accused for

other offences would be proceeded with. Accordingly, the

learned Judge allowed the application, according consent to

withdrawal of the charges relating to offences punishable

under the TADA Act against the accused. He ordered, "The

accused in custody and on bail, facing trial for offences

under TADA Act stand acquitted/discharged as the case may

be." He transferred the cases to the court of the Principal

District and Sessions Judge, Mysore for disposal in

accordance with law of all charges other than under the TADA

Act.

The accused who were in custody and were discharged by

the Special Court in respect of the TADA charges against

them immediately filed an application for bail before the

Court of District and Sessions Judge, Mysore. On 28th

August, 2000, the learned Judge, now as Principal District

and Sessions Judge, noted in his order that learned counsel

for the present appellant had informed him that the

appellant had filed a petition for special leave to appeal

against the order on the Special Public Prosecutor's

application which was to be taken up for hearing on the next

day and that learned counsel had prayed that orders on the

bail petition should not be pronounced until thereafter.

The Special Public Prosecutor had submitted in reply that

the special leave petition related only to the withdrawal of

charges under the TADA Act and the passing of orders on the

bail petitions would not be affected thereby. The learned

Judge found that no order of stay had been passed by this

Court, and, therefore, he overruled the prayer and passed

orders on the bail petitions. In the course thereof, the

learned Judge referred to "the urgency of the matter". The

learned Judge found force in the contention on behalf of the

accused that there had been a change in the circumstances in

view of the fact that the Designated Court had permitted the

State to withdraw the TADA charges against them. Having

carefully gone through the material on record and the nature

of the accusations made against the accused and the evidence

projected, it was the learned Judge's opinion that "there is

no prima facie case made out against the accused for the

said offence. Having regard to the facts and circumstances,

the social status of the accused and other relevant factors,

the Court is of the opinion that the bail petition will have

to be allowed on the following terms in the ends of

justice. The accused were directed to be released on bail

on each of them executing a bond for Rs.10,000 with one

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surety for the like sum or, in the alternative, on each

furnishing cash security of Rs.20,000, on the conditions

that they would appear before the court regularly, as and

when required, they would not tamper with the prosecution

witnesses and they would not commit any other offence.

The order dated 19th August, 2000 on the Special Public

Prosecutors application is impugned in the appeals before

us.

On 14th August, 2000 the Government of the State of

Tamil Nadu issued a Government Order directing that charges

against one Radio Venkatesan in respect of two cases

registered against him under the provisions of the TADA

(Prevention) Act be withdrawn in the public interest. The

Inspector General of Police Intelligence, Chennai was

directed to take necessary action accordingly. On 16th

August, 2000 the Special Public Prosecutor before the

Designated Court (TADA Act) at Chennai made two applications

to that court under the provisions of Section 321 of the

Criminal Procedure Code. They stated that Radio Venkatesan

was charged before the Designated Court in cases arising

under the TADA Act, the Explosive Substances Act, the Indian

Penal Code and the Arms Act and the cases were pending for

framing charges. The applications added, It is further

submitted that after perusal of records I am satisfied that

under the new change of circumstances and also in the Public

Interest I hereby request this Honble Court to permit me to

withdraw the charges under Section 3(1), 3(3), 4(1) & 5 of

Tamilnadu Terrorist & Disruptive Activities Preventive Act

1987 against the accused Venkatesan @ Radio Venkatesan and

thus render justice. A copy of the Government Order of

14th August, 2000 was submitted with the applications. On

16th August, 2000, the Designated Court, Chennai passed an

order on the applications. It noted, The Government have

passed an order stating that TADA offences against the

accused Venkatesan @ Radio Venkatesan is withdrawn in the

public interest. There is no mention in the Government

Order for withdrawal of cases against the said accused under

IPC Offences and other laws. The court referred to the

applications before it and the provisions of Section 321

which permitted withdrawal from prosecution of one or more

offences when the accused was charged with more than one

offence. It then stated, So far as this case is concerned

the Government have passed order to withdraw the TADA case

alone as against the accused Venkatesan @ Radio Venkatesan,

who is involved in Cr. No.50/93 and Cr. No.346/93. As

this application has been filed by the learned Special

Public Prosecutor on the basis of the Government Order

referred above. Permission is granted to withdraw the TADA

case against the accused Venkatesan @ Radio Venkatesan and

he has been discharged from the various offences of the TADA

Act. The applications were allowed accordingly.

Insofar as four detenues under the National Security Act

were concerned, the Government of the State of Tamil Nadu

passed orders on 14th August, 2000. As an example, that

relating to Sathyamoorthy is reproduced below :

Kannada film actor Dr. Rajkumar and few others were

kidnapped by sandalwood brigand Veerappan and his men in the

night of 30.7.2000. He has made 10 demands to release them

from hostage. One of the demands is to release 5 prisoners

from the various prisons in Tamil Nadu. Thiru Sathyamoorthy

@ Sathya @ Kandasamy @ Neelan, is one among the NSA detenus

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mentioned above. A tense situation is prevailing due to the

kidnapping of Kannada film actor Dr. Rajkumar. There is an

apprehension that in case any harm is caused to him, there

may be a backlash on Tamils in Karnataka. In order to avoid

such a situation and in the public interest, the Government

have decided to revoke the order of detention passed by the

Collector and District Magistrate, Erode District, in his

proceedings first read above, under N.S.A. against Thiru

Sathyamoorthy @ Sathya @ Kandasamy @ Neelan and to release

him from detention under N.S.A.

2. NOW THEREFORE in exercise of the powers conferred by@@

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clause (a) of sub section (1) of Section 14 of the National@@

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Security Act, 1980, the Governor of Tamil Nadu hereby

revokes the order of detention made by the District

Collector and District Magistrate, Erode District, against

Thiru Sathyamoorthy @ Sathya @ Kandasamy @ Neelan, s/o Thiru

Nataraja Muthiraiyar, in the proceedings first read above

and direct that the said Thiru Sathyamoorthy @ Sathya @

Kandasamy @ Neelan, be released from detention under the

said Act forthwith. This order applies only in respect of

detention under National Security Act.

The aforesaid orders of the Government of the State of

Tamil Nadu and the order of the Designated Court, Chennai

are challenged in the two public interest petitions before

us.

In the appeals aforementioned, this Court passed an order on 29th August,

2000 directing that none of the accused respondents therein should be released,

on bail or otherwise, pending further orders. Observing the spirit of

this order, those who are the beneficiaries of the aforesaid orders of the

Government and the Designated Court of the State of Tamil Nadu have also not

been released.

Section 321 of the Criminal Procedure Code reads thus :

321. Withdrawal from prosecution The Public

Prosecutor or Assistant Public Prosecutor in charge of a

case may, with the consent of the Court, at any time before

the judgment is pronounced, withdraw from the prosecution of

any person either generally or in respect of any one or more

of the offences for which he is tried; and, upon such

withdrawal, -

(a) if it is made before a charge has been framed, the

accused shall be discharged in respect of such offence or

offences;

(b) if it is made after a charge has been framed, or

when under this Code no charge is required, he shall be

acquitted in respect of such offence or offences;

Provided that where such offence

(i) was against any law relating to a matter to which

the executive power of the Union extends, or

(ii) was investigated by the Delhi special Police

Establishment Act, 1946 (25 of 1946), or

(iii) involved the misappropriation or destruction of,

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or damage to, any property belonging to the Central

Government, or

(iv) was committed by a person in the service of the

Central Government while acting or purporting to act in the

discharge of his official duty,

and the Prosecutor in charge of the case has not been

appointed by the Central Government, he shall not, unless he

has been permitted by the Central Government to do so, move

the Court for its consent to withdraw from the prosecution

and the Court shall, before according consent, direct the

Prosecutor to produce before it the permission granted by

the Central Government to withdraw from the prosecution.

The law as it stands today in relation to applications

under Section 321 is laid down by the majority judgment

delivered by Khalid, J. in the Constitution Bench decision

of this Court in Sheonandan Paswan v. State of Bihar &

Ors., [1987 (1) SCC 288]. It is held therein that when an

application under Section 321 is made, it is not necessary

for the court to assess the evidence to discover whether the

case would end in conviction or acquittal. What the court

has to see is whether the application is made in good faith,

in the interest of public policy and justice and not to

thwart or stifle the process of law. The court, after

considering the facts of the case, has to see whether the

application suffers from such improprieties or illegalities

as would cause manifest injustice if consent was given.

When the Public Prosecutor makes an application for

withdrawal after taking into consideration all the material

before him, the court must exercise its judicial discretion

by considering such material and, on such consideration,

must either give consent or decline consent. The section

should not be construed to mean that the court has to give a

detailed reasoned order when it gives consent. If, on a

reading of the order giving consent, a higher court is

satisfied that such consent was given on an over all

consideration of the material available, the order giving

consent has necessarily to be upheld. Section 321

contemplates consent by the court in a supervisory and not

an adjudicatory manner. What the court must ensure is that

the application for withdrawal has been properly made, after

independent consideration by the Public Prosecutor and in

furtherance of public interest. Section 321 enables the

Public Prosecutor to withdraw from the prosecution of any

accused. The discretion exercisable under Section 321 is

fettered only by a consent from the court on a consideration

of the material before it. What is necessary to satisfy the

section is to see that the Public Prosecutor has acted in

good faith and the exercise of discretion by him is proper.

The law, therefore, is that though the Government may

have ordered, directed or asked a Public Prosecutor to

withdraw from a prosecution, it is for the Public Prosecutor

to apply his mind to all the relevant material and, in good

faith, to be satisfied thereon that the public interest will

be served by his withdrawal from the prosecution. In turn,

the court has to be satisfied, after considering all that

material, that the Public Prosecutor has applied his mind

independently thereto, that the Public Prosecutor, acting in

good faith, is of the opinion that his withdrawal from the

prosecution is in the public interest, and that such

withdrawal will not stifle or thwart the process of law or

cause manifest injustice.

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It must follow that the application under Section 321

must aver that the Public Prosecutor is, in good faith,

satisfied, on consideration of all relevant material, that

his withdrawal from the prosecution is in the public

interest and it will not stifle or thwart the process of law

or cause injustice. The material that the Public Prosecutor

has considered must be set out, briefly but concisely, in

the application or in an affidavit annexed to the

application or, in a given case, placed before the court,

with its permission, in a sealed envelope. The court has to

give an informed consent. It must be satisfied that this

material can reasonably lead to the conclusion that the

withdrawal of the Public Prosecutor from the prosecution

will serve the public interest; but it is not for the court

to weigh the material. The court must be satisfied that the

Public Prosecutor has considered the material and, in good

faith, reached the conclusion that his withdrawal from the

prosecution will serve the public interest. The court must

also consider whether the grant of consent may thwart or

stifle the course of law or result in manifest injustice.

If, upon such consideration, the court accords consent, it

must make such order on the application as will indicate to

a higher court that it has done all that the law requires it

to do before granting consent.

The applications under Section 321 made by the Special

Public Prosecutor before the Designated Court at Mysore

submitted that the Special Public Prosecutor had decided to

withdraw from prosecution the charges under the T.A.D.A.

Act in order to restore the peace and normalcy in the

border area and among the people living in the border area

and to maintain peace among the public at general and

inhabitants of the particular village and that such

withdrawal from prosecution was necessary in the larger

interest of the State and in order to avoid any unpleasant

situation in the border area. The applications did not

state why the Special Public Prosecutor apprehended a

disturbance of the peace and normalcy of the border area

or the particular village, nor was any material in this

behalf, or a summary thereof, set out. There was,

therefore, no basis laid in the applications upon which the

learned Judge presiding over the Designated Court could

conclude that the Special Public Prosecutor had applied his

mind to the relevant material and exercised discretion in

good faith and that the withdrawal would not stifle or

thwart the course of the law and cause manifest injustice.

The order of the learned Judge noted that the statement of

opposition filed by the present appellant averred that

Rajkumar had been abducted by Veerappan and it said that he

would have to take notice of this aspect. The order did not

note that the statement of opposition also said that,

consequent upon such abduction, the State of Karnataka had

yielded to the demands made by Veerappan and had issued

notifications that it would withdraw all cases against

Veerappan and his associates. No query in this regard was

made by the learned Judge with the Special Public

Prosecutor. The learned Judge said that he was satisfied on

the material placed before him that the grant of permission

to withdraw subserved the administration of justice and it

had not been sought covertly, but he did not state what

those materials were. It is not the case of anybody that

any materials were placed before the learned Judge upon the

basis of which he could have been satisfied that the Special

Public Prosecutor had applied his mind thereto and had

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reached, in good faith, the conclusion that the withdrawal

he sought was necessary for the reasons he pleaded. The

learned Judge placed on record, as he called it, the

decision of this Court in the case of Sheonandan Paswan,

referred to above, but he did not appreciate what it

required of a Public Prosecutor and of a court in regard of

Section 321, and he did not follow it. The order granting

consent on the Special Public Prosecutors application,

therefore, does not meet the requirements of Section 321 and

is bad in law.

The applications under Section 321 filed before the

Designated Court at Chennai sought consent to the withdrawal

from the T.A.D.A. prosecution against Venkatesan @ Radio

Venkatesan after perusal of records by the Special Public

Prosecutor, and they submitted that under the new change of

circumstances and also in the public interest the permission

was sought. What the record was that the Special Public

Prosecutor had perused was not set out nor was it annexed

nor a summary thereof recited. What the changed

circumstances were was not set out. The order on the

applications was founded only upon the relevant Government

Order, thus: So far as this case is concerned the

Government have passed order to withdraw the TADA case alone

as against the accused Venkatesan @ Radio Venkatesan, who is

involved in Cr.No. 50/93 and Cr. No. 346/93. As this

application has been filed by the learned Special Public

Prosecutor on the basis of the Government Order referred

above. Permission is granted to withdraw the TADA case

against the accused Venkatesan @ Radio Venkatesan The

order, therefore, was not passed after meeting the

requirements of Section 321, and it is bad in law.

It was submitted by the learned Solicitor General,

appearing for the State of Karnataka, that we, sitting in

appeal, should consider the grant of consent under Section

321 based upon the state of knowledge of the Special Public

Prosecutor on the date on which he made the application

before the Designated Court at Mysore. In this behalf, two

affidavits, both dated 19th October, 2000, were filed. One

affidavit is made by the Minister of Law and Parliamentary

Affairs of the State of Karnataka and the other by the

Special Public Prosecutor.

The affidavit of the Minister for Law states:

1.xxxxxxx. @@

IIIIIIIII

2. That I have been party to most of the decisions

which have been taken in this matter, which has culminated

in the issuance of the Government order dated 8th August,

2000 requesting the Special Public Prosecutor, in charge of

the TADA cases pending before the Designated Court at Mysore

against Veerappan and his associates, to withdraw the

charges under TADA.

3. I also held a meeting with the Special Public

Prosecutor in charge of the cases, on the 5th August, 2000

in my office in Vidhan Soudha, Bangalore. The discussions

held during the meeting and the persons present have already

been stated in the affidavit of Shri Ashwini Kumar Joshi

which I confirm.

4. Prior to this meeting, the problems arising out of

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the abduction of Dr. Rajkumar, the options available to the

State Government to deal with this crisis and the responses

of the Government publicly announced to Veerappans demands,

have all been discussed at various levels including in

informal meetings held between me, the Home Minister and the

Chief Minister as well as the Cabinet meetings which have

been held frequently during the period 1st August to 8th

August, 2000.

5. I submit that one option, which the Government had

always considered relates to the use of force for the

release of Dr. Rajkumar. While considering this option and

evaluation of the risk factors, as advised by the senior

officials at the level of Home Secretary, and the Chief

Secretary as well as our own experience in the past were

also considered. After detailed discussions on more that

one occasion, the option of use of force in the present

circumstances and as at present advised was ruled out in

favour of acceding to some of his demands.

6. The demands made by Veerappan were discussed

informally at various levels of the Secretaries, at the

level of the Ministers and also informally in the Cabinet.

7. I submit that the Government made public its

response to Veerappans demands in which it indicated, inter

alia, that only TADA charges (and not all cases) against the

51 accused would be withdrawn.

8. I submit that the matter of withdrawal of TADA

charges had been informally discussed in the Cabinet on 3rd

August and the final decision taken between 4-5th August,

2000 between myself, the Home Minister and the Chief

Minister of Karnataka.

9. I respectfully state that it was after considering

the options and the likely repercussions in future of

succumbing to his demands (i.e. the signals sent by

agreeing to such demands, and the fact that it may encourage

further such acts) and after weighing it against the

problems apprehended if any harm were to be caused to Dr.

Rajkumar, that this decision to withdraw TADA charges were

taken.

10. xxxxxxx

11. xxxxxxx.

12.In the informal Cabinet meeting held on 3rd August,

2000, the Cabinet had authorized the Chief Minister, the

Home Minister and myself as well as the Chief Secretary to

take a final decision in this matter and pursuant to this,

we took a final decision between 4-5th August, 2000.

The decision of the Government of the State of

Karnataka, therefore, was that, in view of its apprehension

of the unrest that would follow if any harm were to come to

Rajkumar, it was better to yield to Veerappans demand and

to withdraw the TADA charges against Veerappan and his

associates, including the accused respondents. In this

context, the Special Public Prosecutor should have

considered and answered the following questions for himself

before he decided to exercise his discretion in favour of

such withdrawal from prosecution of the TADA charges.

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1. Was there material to show that the police and

intelligence authorities and the State Government had a

reasonable apprehension of such civil disturbances as would

justify the dropping of charges against Veerappan and others

accused of TADA offences and the release on bail of those in

custody in respect of the other offences they were charged

with?

2. What was the assessment of the police and

intelligence authorities and of the State Government of the

risk of leaving Veerappan free to commit crimes in future,

and how did it weigh against the risk to Rajkumars life and

the likely consequent civil disturbances?

3. What was the likely effect on the morale of the law

enforcement agencies?

4. What was the likelihood of reprisals against the

many witnesses who had already deposed against the accused

respondents?

5. Was there any material to suggest that Veerappan

would release Rajkumar when some of Veerappans demands were

not to be met at all?

6. When the demand was to release innocent persons

languishing in Karnataka jails, was there any material to

suggest that Veerappan would be satisfied with the release

of only the accused respondents?

7. In any event, was there any material to suggest that

after the accused respondents had secured their discharge

from the TADA charges and bail on the other charges

Veerappan would release Rajkumar?

8. Given that the Governments of the States of Karnataka

and Tamil Nadu had not for 10 years apprehended

Veerappan and brought him to justice, was this a ploy

adopted by them to keep Veerappan out of the clutches of

the law?

The affidavit of the Special Public Prosecutor states:

6. On 5th August, 2000, I was called by the Office of the

Honble Law Minister for a meeting in his chamber in Vidhan

Soudha, Bangalore.

7. When I went to the meeting, the Special Secretary

(Law) and the Director of Prosecutions as well as the

Additional Director General of Police (Intelligence) were

present. We discussed the matter relating to withdrawal of

TADA charges against these 51 accused at considerable length

for over 2 hours. In the course of the discussion, I recall

that I was informed, inter alia, that the negotiations had

reached a point where it was felt that withdrawal of TADA

charges against these 51 accused would secure the release of

Dr. Rajkumar. I was informed that the Government had

intelligence reports and that if any harm were to be caused

to Dr. Rajkumar, it would lead to problems between the two

linguistic communities in the State. I was informed that

apprehending trouble, schools and colleges had been declared

closed immediately in the whole State and they were closed

upto 5th August, 2000. I was informed of the incidents,

which had occurred in Bangalore City on 31st July, 2000 as

an aftermath of this incident of kidnapping also showed that

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the abduction was being construed by the people as an issue

between two communities. The character of the incident

showed that these people were ready to indulge in acts of

violence. I was also informed that acting on intelligence

reports, the Government had taken steps to arrange for

deployment of Central Forces, such as the Rapid Action

Force, Armed Reserve Police, and Para Military Force from

the neighbouring States and some steps had already been

taken and others were likely to be taken.

8. I was informed by the Honble Law Minister that the

Cabinet had also informally discussed this matter in its

urgent meeting held on 3.8.2000 and that a decision had been

taken to take appropriate steps and on that basis the

Government would formally request me to take appropriate

steps to withdraw the TADA charges.

9. On 8th August, 2000, the G.O. issued by the

Government along with its covering letter was duly forwarded

to me through the Law Department. A copy of the said G.O.

and the connected documents are collectively annexed hereto

and marked as Annexure A.

10. Based on my understanding of the situation, which

in turn, was based on the aforesaid material, and the

information which had been given to me which I believed to

be true, I decided that it would be in the interest of

public peace and maintenance of law and order in the State

to withdraw the charges against the 51 TADA detenus.

11. I respectfully submit that the information which

had been provided to me by the Additional Director General

of Police (Intelligence), the Honble Law Minister and

others present in the meeting as well as my own knowledge of

local events (being a resident of Mysore for 27 years and

having witnessed the problems which had resulted after the

Cauvery riots), I felt there was substance in the

Governments request that any such step which could secure

the release of Dr. Rajkumar would be a step to protect

public peace. I felt that if withdrawal of the TADA charges

which would enable the accused to file necessary bail

applications and their consequent release on bail could

preserve amity between the two communities, it would

outweigh the likely problems which would arise on the

release of these 51. In arriving at this decision that I

was influenced by the fact that the 73 co-accused who had

already been enlarged on bail (by the Court) had complied

with the bail conditions which suggested that they had not

gone back to their old ways. There were 12 womena, 3 old

persons of 70 years age and 3 persons aged between 55-60

amongst the TADA accused. I also considered the fact that

they had been in the jail for six to seven years. 12.

xxxxxxxx 13. xxxxxxxx 14. I was also informed in the

course of the aforesaid meetings that in other districts

also some incidents have been reported. I believed the

statement as I had no reason to doubt its credibility. I

have subsequently ascertained the particulars of the cases

which are hereto annexed and marked as Annexure C.

The affidavit of the Special Public Prosecutor reveals

that he was informed that the Government of the State of

Karnataka had intelligence reports that if any harm were to

be caused to Rajkumar, it would lead to problems between two

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linguistic communities. Clearly, he was not shown the

intelligence reports. Throughout the affidavit the phrase

I was informed recurs. There is no statement therein

which shows that the Special Public Prosecutor had the

opportunity of assessing the situation for himself by

reading primary material and deciding, upon the basis

thereof, whether he should exercise his discretion in favour

of the withdrawal of TADA charges. Acting upon information,

which he could not verify, the Special Public Prosecutor

could not be satisfied that such withdrawal was in the

public interest and that it would not thwart or stifle the

process of the law or cause manifest injustice. The Special

Public Prosecutor, in fact, acted only upon the instructions

of the Government of the State of Karnataka. He, therefore,

did not follow the requirement of the law that he be

satisfied and the consent he sought under Section 321 cannot

be granted by this Court.

The affidavit of the Special Public Prosecutor speaks of

withdrawal of the TADA charges which would enable the

accused to file necessary bail applications and their

consequent release on bail ... It is, thus,

clear that what was envisaged by the Government of the State

of Karnataka and the Special Public Prosecutor was a package

which comprised of the withdrawal of the TADA charges

against the accused respondents and their release on bail on

applications filed by them. This indicates complicity with

the accused respondents. It will have been noticed that

stress was laid by the Special Public Prosecutor in his

application under Section 321 on the fact that the

prosecutions against the accused respondents on charges

other than under the TADA Act would continue, and this was

noted in the order of the Designated Court. The Designated

Court was not told either in the application or thereafter

that the Government of the State of Karnataka and the

Special Public Prosecutor had in mind that the accused

respondents would file bail applications subsequent to the

order under Section 321 which would not be opposed. There

can, in the circumstances, be little doubt that after their

release on bail the accused respondents were not expected to

attend the court to answer the remaining charges against

them and that the stress laid as aforesaid was intended to

mislead the Designated Court. We deprecate the conduct of

the Government of the State of Karnataka and the Special

Public Prosecutor in this behalf. We deem it appropriate,

in the facts and circumstances, to set aside the orders

granting bail to the accused respondents.

Having set aside the order under Section 321 passed by

the Designated Court at Chennai in the matter of Radio

Venkatesan, the Government of the State of Tamil Nadu cannot

comply with Veerappans demand to release the five prisoners

from its jails. It is appropriate in the circumstances to

set aside the orders of the Government of the State of Tamil

Nadu under the National Security Act releasing the other

four persons from detention.

The questions that we have posed above were put to

learned counsel for the State of Karnataka in the context of

the State Governments decision to concede to the demand of

Veerappan that prisoners in Karnataka jails should be

released. The answers do not satisfy us. We do not find on

the record, including that placed before us in sealed

covers, material that could give rise to a reasonable

apprehension of such civil disturbances as justifies the

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decision to drop TADA charges against Veerappan and his

associates, including the accused respondents, and to

release the latter on bail. There is nothing on the record

which suggests that the possibility of reprisals against the

witnesses who have already deposed against the accused

respondents or the effect on the morale of the law

enforcement agencies were considered before it was decided

to release the accused respondents. There is also nothing

to suggest that there was reason to proceed upon the basis

that Veerappan would release Rajkumar when his demands were

not being met in full. The Government of the State of

Karnataka would appear to be unaware that once the accused

respondents were discharged from TADA charges, the deal was

done; and that when they were released on bail they could

not be detained further, whether or not Rajkumar was

released in exchange. While we cannot assert that conceding

to Veerappans demands was a ploy of the Government of the

State of Karnataka to keep him out of the clutches of the

law, we do find that it acted in panic and haste and without

thinking things through in doing so. That this is so is

clear from the fact that the demands were conceded overnight

and also from the fact that the Government of the State of

Karnataka did not ascertain the legal position that it was

not for it but for the court to decide upon the release of

persons facing criminal prosecutions.

What causes us the gravest disquiet is that when, not so

very long back, as the record shows, his gang had been

considerably reduced, Veerappan was not pursued and

apprehended and now, as the statements in the affidavit

filed on behalf of the State of Tamil Nadu show, Veerappan

is operating in the forest that has been his hideout for 10

years or more along with secessionist Tamil elements. It

seems to us certain that Veerappan will continue with his

life of crime and very likely that those crimes will have

anti national objectives.

The Government of the State of Tamil Nadu had been

apprised that Rajkumar faced the risk of being kidnapped by

Veerappan when he visited his farmhouse at Gajanoor. It

knew that Rajkumar was unlikely to give advance intimation

of his visits: he had visited Gajanoor for the

house-warming ceremony of his new farmhouse in June, 2000

without prior notice. To put it mildly, It would have been

prudent, in the circumstances, to post round the clock at

Rajkumars farmhouse in Gajanoor one or two policemen who

could inform their local station house of his arrival there

and thus ensure his safety.

The locus standi of the present appellant has not been

contested before this Court. Had it not been for his

appeal, a miscarriage of justice would have become a fait

accompli.

The accused respondents may have individual grounds for

challenging the continued prosecution of the TADA charges

against them or for bail. They shall be free to adopt

proceedings in that regard, if so advised. Such proceedings

shall be decided on their merits and nothing that we have

said in this judgment shall stand in the way.

The appeals are allowed and the order under appeal,

dated 19th August, 2000, is set aside. The order dated 28th

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August, 2000 passed by the Principal District and Sessions

Judge, Mysore granting bail to the accused respondents is

also set aside.

Further, the order of the Designated Court at Chennai

dated 16th August, 2000 is set aside. The orders of the

Government of the State of Tamil Nadu passed on 14th August,

2000 under the National Security Act in respect of

Sathyamoorthy and three others revoking the orders of their

detention under the National Security Act are also set

aside. The writ petitions are made absolute accordingly.