Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1587 OF 2014

(Arising out of S.L.P. (Crl.) 1487 of 2012)

Bairam Muralidhar … Appellant

Versus

State of Andhra Pradesh …

Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

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

defensibility of the order dated 8.12.2011 passed by the

High Court of Judicature of Andhra Pradesh at Hyderabad

in Criminal Petition No. 1125 of 2010 whereby the learned

Single Judge has concurred with the view expressed by the

Principal Special Judge for SPE and ACB Cases, City Civil

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

Page 2 2007, whereunder the learned trial Judge had declined to

grant permission to withdraw the case pending against the

accused-appellant in exercise of the power under Section

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

Code”).

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

an accused for offences punishable under section 7 and 13

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

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

of one Ranga Dharma Goud fell in love with his

neighbour’s daughter and both of them eloped on

25.01.2006. The neighbour, Radhakrishna Murthy, lodged

an FIR at Kamareddy Town Police Station which was

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

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

the Police Station took up the investigation and arrested

the son of the Ranga Dharma Goud who suffered judicial

custody. When all these things happened Ranga Dharma

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

and he was asked to come to the Police Station on

22.04.2006 and again on 26.04.2006 on which dates the

Page 3 investigating officer demanded a sum of Rs.6000/- to be

paid for not implicating him in the said kidnapping case

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

reducing the gravity of the charge. As Ranga Dharma

Gaud expressed his inability to pay the amount the

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

Expressing his unwillingness to pay, he approached the

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

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

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

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

and eventually charge-sheet was placed against the

accused officer before the competent Court.

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

public prosecutor filed a petition on 22.06.2009 to

withdraw the case against the accused officer on the

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

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

withdraw the prosecution against the accused officer. The

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

268 that was annexed to the petition of the Special Public

Page 4 Prosecutor wherein it was mentioned that on the due

examination the Government had found regard being had

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

and other meritorious service his case be placed before

the Administrative Tribunal for disciplinary proceedings

after withdrawal of the prosecution pending in the court of

Special Judge. The learned trial Judge referred to various

authorities, adverted to the role and duty of the public

prosecutor and the role of the Court under Section 321 of

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

and grant of sanction by the State Government to

prosecute the case opined that the public prosecutor

really had not applied his independent mind except filing

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

Government; that there were no sufficient ground or

circumstances for the Court to accept the withdrawal of

the prosecution case against the officer; and that there

was no justification to allow such an application regard

being had to the offences against the accused persons,

and accordingly, dismissed the petition.

Page 5 5.As the permission was not granted by the learned

trial Judge the appellant invoked the jurisdiction of the

High Court under Section 482 of the Code before the High

Court and the learned Single Judge after adverting to the

facts and the reasons ascribed by the learned trial Judge

came to hold that the order passed by the learned trial

Judge was absolutely impeccable inasmuch as the public

prosecutor had actually not given any valid reason for

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

obtaining factual matrix, did not warrant withdrawal under

Section 321 of the Code.

6.We have heard Ms. Madhurima Tatia, learned

counsel for the petitioner and Mr. ATM Rangaramanujam,

learned senior counsel for the State.

7.The seminal question that arises for consideration is

whether in the obtaining factual score the Court was

justified to decline permission under Section 321 of the

Code for withdrawal of the case. To appreciate the

controversy in proper perspective, it is condign to refer

the Government order whereby a decision has been taken

Page 6 to withdraw the case. The relevant part of it reads as

follows:-

“2.In the reference third read above. Sri.

Bairam Muralidhar, Sub-Inspector of Police, has

submitted a representation wherein he has

stated that a trap was laid on him on 5.5.2006

by the Deputy Superintendent of Police, Anti

Corruption Bureau, Nizamabad Range,

Nizamabad, along with his staff on a false and

frivolous complaint lodged by the complainant

by name Sri. Ranga Dharma Goud of

Kamareddy, Nizamabad District. Actually, a

case in Cr No. 21/2006 u/S.366 (A) Indian Penal

Code was registered in Town Police Station of

Kamareddy on 01.02.2006 against Naresh

Goud, son the of complainant. A charge sheet

was also filed by him in the Court of Judicial

First Class Magistrate, Kamareddy, against

Naresh Goud on 20.03.2006 itself, and the same

was numbered vide PRC No. 27/2006. Thus,

there was no official favour that was to be done

to the complainant or his son in this case as

alleged. The complainant himself persuaded

him to accept the bribe. When he refused to

accept, the complainant forcibly thrusted some

currency notes into his left side shirt pocket.

When he resisted the said acts of the

complainant for the unprecedented act, the

Anti-Corruption Bureau, officials rushed to the

spot and conducted trap proceedings on him

without heeding to his requests. He further

informed that he is discharging his legitimate

duties and his case was considered for

Accelerated Promotion from Sub-Inspector of

Police for his contribution in the anti extremist

work. His services were recognized by way of

awarding Police Katina Seva Pathakam in 2005

and his name was also recommended for

Prestigious Indian Police Medal for Gallantry for

the year 2003. Hence, keeping in view his

Page 7 previous record, he requested the Government

to consider his request for withdrawal of

prosecution and also to reinstate into service.

3. In the reference fourth read above, the

Director General, Anti-Corruption Bureau,

Andhra Pradesh, Hyderabad, while rebutting the

contentions of the Accused Officer has stated

that there are no merits in the application filed

by the applicant and it is not maintainable and

as such requested the Government to dismiss

the application filed by the Accused Officer Sri.

B. Muralidhar, Sub-Inspector of Police.

4. Government have examined the matter in

detail, keeping in view of his good work in the

anti-extremist field and other meritorious

service and order that the case of Sri. Bairam

Muralidhar, Sub-Inspector of Police, Kamareddy

Town Police Station, Nizamabad, be placed

before the Tribunal for Disciplinary Proceedings,

duly withdrawing the prosecution in C.C. No.

24/2007....”

8.The application for withdrawal that was filed by the

learned Public Prosecutor deserves to be referred to. After

narrating the factual matrix about the case, while seeking

withdrawal the following grounds were put forth:

“It is further submitted that as the matter stood

thus, the Government has reviewed the case

and decided to modify the orders issued in G.O.

Ms. No.06, Home (SC-A) Department, dt.

10.01.2007 and placed the respondent/accused

officer on his defense before Tribunal for

disciplinary proceedings and issued G.O. Ms. No.

268, home (SC-A) Department, dated

23.5.2009, the said G.O. is filed along with the

petition for consideration.

Page 8 I respectfully submit that on perusal of the

Government order and the material evidences

available on record and on application of the

mind independently and for the reasons

accorded by the Government I am satisfied that

the case is fit for withdrawal from prosecution in

accordance with the settled principles of law as

laid down by the Honourable Supreme Court of

India.

Therefore, under the above said circumstances

it is prayed that this Honourable Court may be

pleased to permit me to withdraw the case of

the prosecution against the respondent/accused

officer Sri. Bairam Murlidhar and the same may

be treated as withdrawn and the

respondent/accused officer may be discharged

in the interest of justice and equity.”

9.The learned counsel for the petitioner submitted that

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

Pradesh in Criminal Appeal No. 299 of 2014 decided

on 30

th

January 2014, this Court has after reproducing

paragraphs 69, 70 and 71 of the Constitution Bench

decision in Sheo Nandan Paswan v. State of Bihar

and others

1

has quashed the prosecution and remanded

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

follows:-

“We accordingly allow the appeal, set aside the

order of the Trial Court and the impugned order

of the High Court and remand the matter to the

1

AIR 1987 SC 877

Page 9 Trial Court for fresh consideration of the petition

for withdrawal of prosecution against the

appellant under Section 321 Cr.P.C. in the light

of the judgments of this Court and in particular

the majority judgments of the Constitution

Bench of this Court in Sheo Nandan Paswan

v. State of Bihar and others quoted above.”

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

preferred for withdrawal of the case where charge-sheet

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

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

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

had refused to entertain the criminal revision. This Court

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

not correctly appreciated the law laid down in Sheo

Nandan Paswan’s case and accordingly passed the

order which we have reproduced hereinbefore.

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

reproduced the Government order and the application

filed by the public prosecutor. Before we express our

opinion with regard to legal sustainability of the order

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

refer to certain authorities pertaining to the role of the

Public Prosecutor and the duty of the Court as envisaged

under section 321 of the Code. The Constitution Bench in

Page 10 Sheo Nandan Paswan’s case referred to Section 333 of

the old Code and taking note of the language employed

under Section 321 of the present Code opined thus:-

“69. A harmonious view should, in my view,

prevail in the reading of the two sections.

Section 333 does not give any discretion or

choice to the High Court when a motion is made

under it. Such being the case, Section 321 must

also be construed as conferring powers within

circumscribed limits to the court to refuse to

grant permission to the Public Prosecutor to

withdraw the prosecution. If such a harmonious

view is not taken it would then lead to the

anomalous position that while under Section

333, a High Court has to yield helplessly to the

representation of the Advocate-General and stop

the proceedings and discharge or acquit the

accused, the subordinate courts when moved

under Section 321 CrPC would have a power to

refuse to give consent for withdrawal of the

prosecution if it is of opinion that the case did

not suffer from paucity of evidence. The

legislature would not have intended to confer

greater powers on the subordinate courts than

on the High Court in the exercise of powers

under Section 494 of the old Code and Section

333 respectively. It would, therefore, be just and

reasonable to hold that while conferring powers

upon the subordinate courts under Section 494

to give consent to a Public Prosecutor

withdrawing the prosecution, the legislature had

only intended that the courts should perform a

supervisory function and not an adjudicatory

function in the legal sense of the term.

Section 321 reads as follows:

“321. Withdrawal from prosecution.— The

Public Prosecutor or Assistant Public

Prosecutor in charge of a case may, with

Page 11 the consent of the court at any time before

the judgment is pronounced, withdraw from

the prosecution of any person either

generally or in respect of any one or more

of the offences for which he is tried; and,

upon such withdrawal,—

(a) if it is made before a charge has been

framed, the accused shall be discharged in

respect of such offence or offences;

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

framed, or when under this Code no charge

is required, he shall be acquitted in respect

of such offence or offences. (Proviso

omitted)”

This section enables the Public Prosecutor, in

charge of the case to withdraw from the

prosecution of any person at any time before the

judgment is pronounced, but this application for

withdrawal has to get the consent of the court

and if the court gives consent for such

withdrawal the accused will be discharged if no

charge has been framed or acquitted if charge

has been framed or where no such charge is

required to be framed. It clothes the Public

Prosecutor to withdraw from the prosecution of

any person, accused of an offence both when no

evidence is taken or even if entire evidence has

been taken. The outer limit for the exercise of

this power is “at any time before the judgment is

pronounced”.

70. The section gives no indication as to the

grounds on which the Public Prosecutor may

make the application, or the considerations on

which the court is to grant its consent. The

initiative is that of the Public Prosecutor and

what the court has to do is only to give its

consent and not to determine any matter

judicially. The judicial function implicit in the

exercise of the judicial discretion for granting the

consent would normally mean that the court has

Page 12 to satisfy itself that the executive function of the

Public Prosecutor has not been improperly

exercised, or that it is not an attempt to interfere

with the normal course of justice for illegitimate

reasons or purposes.

71.The court’s function is to give consent. This

section does not obligate the court to record

reasons before consent is given. However, I

should not be taken to hold that consent of the

court is a matter of course. When the Public

Prosecutor makes the application for withdrawal

after taking into consideration all the materials

before him, the court exercises its judicial

discretion by considering such materials and on

such consideration, either gives consent or

declines consent. The section should not be

construed to mean that the court has to give a

detailed reasoned order when it gives consent. If

on a reading of the order giving consent, a

higher court is satisfied that such consent was

given on an overall consideration of the

materials available, the order giving consent has

necessarily to be upheld.”

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

decisions in Bansi Lal v. Chandan Lal

2

, Balwant Singh

v. State of Bihar

3

, Subhash Chander v. State

4

,

Rajendra Kumar Jain v. State

5

, and the principles

stated in State of Bihar v. Ram Naresh Pandey

6

and

eventually came to hold as follows:-

2

AIR 1976 SC 370

3

(1978) 1 SCR 604

4

(1980) 2 SCR 44

5

AIR 1980 SC 1510

6

AIR 1957 SC 389

Page 13 “All the above decisions have followed the

reasoning of Ram Naresh Pandey’s case and the

principle settled in that decision were not

doubted.

It is in the light of these decisions that the case

on hand has to be considered. I find the

application for withdrawal by the Public

Prosecutor has been made in good faith after

careful consideration of the materials placed

before him and the order of consent given by

the Magistrate was also after due consideration

of various details, as indicated above. It would

be improper for this Court, keeping in view the

scheme of S. 321, to embark upon a detailed

enquiry into the facts and evidence of the case

or to direct retrial for that would be destructive

of the object and intent of the Section. ”

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

and others

7

this Court while dealing with justifiability of

withdrawal from the prosecution the Court referred to the

Section 321 of the Code and the principle that has been

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

“7. It is, therefore, clear that the Designated

Court was right in taking the view that

withdrawal from prosecution is not to be

permitted mechanically by the court on an

application for that purpose made by the public

prosecutor. It is equally clear that the public

prosecutor also has not to act mechanically in

the discharge of his statutory function under

Section 321 CrPC on such a recommendation

being made by the Review Committee; and that

it is the duty of the public prosecutor to satisfy

himself that it is a fit case for withdrawal from

7

(1996) 2 SCC 610

Page 14 prosecution before he seeks the consent of the

court for that purpose.

8. It appears that in these matters, the public

prosecutor did not fully appreciate the

requirements of Section 321 CrPC and made the

applications for withdrawal from prosecution

only on the basis of the recommendations of the

Review Committee. It was necessary for the

public prosecutor to satisfy himself in each case

that the case is fit for withdrawal from

prosecution in accordance with the settled

principles indicated in the decisions of this

Court and then to satisfy the Designated Court

of the existence of a ground which permits

withdrawal from prosecution under Section 321

CrPC.”

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

State of Karnataka and others etc.

8

referred to the

Constitution Bench judgment in Sheonandan Paswan

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

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

“19. The law, therefore, is that though the

Government may have ordered, directed or

asked a Public Prosecutor to withdraw from a

prosecution, it is for the Public Prosecutor to

apply his mind to all the relevant material and,

in good faith, to be satisfied thereon that the

public interest will be served by his withdrawal

from the prosecution. In turn, the court has to

be satisfied, after considering all that material,

that the Public Prosecutor has applied his mind

independently thereto, that the Public

Prosecutor, acting in good faith, is of the opinion

that his withdrawal from the prosecution is in

8

AIR 2001 SC 116

Page 15 the public interest, and that such withdrawal

will not stifle or thwart the process of law or

cause manifest injustice.

20. It must follow that the application under

Section 321 must aver that the Public

Prosecutor is, in good faith, satisfied, on

consideration of all relevant material, that his

withdrawal from the prosecution is in the public

interest and it will not stifle or thwart the

process of law or cause injustice. The material

that the Public Prosecutor has considered must

be set out, briefly but concisely, in the

application or in an affidavit annexed to the

application or, in a given case, placed before

the court, with its permission, in a sealed

envelope. The court has to give an informed

consent. It must be satisfied that this material

can reasonably lead to the conclusion that the

withdrawal of the Public Prosecutor from the

prosecution will serve the public interest; but it

is not for the court to weigh the material. The

court must be satisfied that the Public

Prosecutor has considered the material and, in

good faith, reached the conclusion that his

withdrawal from the prosecution will serve the

public interest. The court must also consider

whether the grant of consent may thwart or

stifle the course of law or result in manifest

injustice. If, upon such consideration, the court

accords consent, it must make such order on

the application as will indicate to a higher court

that it has done all that the law requires it to do

before granting consent.”

[Emphasis supplied]

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

concurring opinion elaborating further on fundamental

Page 16 parameters which are to be the laser beam for exercise of

power under Section 321 of the Code opined that:-

“42. The satisfaction for moving an application

under Section 321 CrPC has to be of the Public

Prosecutor which in the nature of the case in

hand has to be based on the material provided

by the State. The nature of the power to be

exercised by the Court while deciding

application under Section 321 is delineated by

the decision of this Court in Sheonandan

Paswan v. State of Bihar. This decision holds

that grant of consent by the court is not a

matter of course and when such an application

is filed by the Public Prosecutor after taking

into consideration the material before him, the

court exercises its judicial discretion by

considering such material and on such

consideration either gives consent or declines

consent. It also lays down that the court has to

see that the application is made in good faith,

in the interest of public policy and justice and

not to thwart or stifle the process of law or

suffers from such improprieties or illegalities as

to cause manifest injustice if consent is given.

43. True, the power of the court under Section

321 is supervisory but that does not mean that

while exercising that power, the consent has to

be granted on mere asking. The court has to

examine that all relevant aspects have been

taken into consideration by the Public

Prosecutor and/or by the Government in

exercise of its executive function.”

[Underlining is ours]

16.In Rahul Agarwal v. Rakesh Jain and another

9

the Court was dealing with what should be the lawful

9

(2005) 2 SCC 377

Page 17 consideration while dealing with an application for

withdrawal under Section 321 of the Code. The Court

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

State of Orissa v. Chandrika Mohapatra

10

, Balwant

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

Abdul Karim (supra) wherein the earlier decision of the

Constitution Bench in Sheonandan Paswan was

appreciated and after reproducing few passages from

Abdul Karim (supra) ruled that:-

“10. From these decisions as well as other

decisions on the same question, the law is very

clear that the withdrawal of prosecution can be

allowed only in the interest of justice. Even if

the Government directs the Public Prosecutor to

withdraw the prosecution and an application is

filed to that effect, the court must consider all

relevant circumstances and find out whether

the withdrawal of prosecution would advance

the cause of justice. If the case is likely to end

in an acquittal and the continuance of the case

is only causing severe harassment to the

accused, the court may permit withdrawal of

the prosecution. If the withdrawal of prosecution

is likely to bury the dispute and bring about

harmony between the parties and it would be in

the best interest of justice, the court may allow

the withdrawal of prosecution. The discretion

under Section 321, Code of Criminal Procedure

is to be carefully exercised by the court having

due regard to all the relevant facts and shall not

be exercised to stifle the prosecution which is

being done at the instance of the aggrieved

10

(1976) 4 SCC 250

Page 18 parties or the State for redressing their

grievance. Every crime is an offence against the

society and if the accused committed an

offence, society demands that he should be

punished. Punishing the person who

perpetrated the crime is an essential

requirement for the maintenance of law and

order and peace in the society. Therefore, the

withdrawal of the prosecution shall be

permitted only when valid reasons are made

out for the same.”

(Emphasis added]

17.The obtaining fact situation has to be tested on the

anvil of aforesaid enunciation of law. As is demonstrable,

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

rd

May, 2009 enumerated certain aspects which are

reproduced hereinbefore. The reproduction part requires

slight clarification. In the order passed by the State

Government, the third reference refers to the

representation of Shri B. Muralidhar, Sub-Inspector of

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

fourth reference refers to the communication from the

Director General, Anti Corruption Bureau, Andhra Pradesh,

Hyderabad dated 12.10.2007. Thereafter, the State

Government has given its opinion why the case required

to be withdrawn. The learned public prosecutor in his

application for withdrawal of the prosecution has referred

Page 19 to the Government order and sought permission of the

Court. What the public prosecutor has stated is that he

has perused the Government order, the material

evidences available on record and has applied his mind

independently and satisfied that it was a fit case for

withdrawal.

18.The central question is whether the public prosecutor

has really applied his mind to all the relevant materials on

record and satisfied himself that the withdrawal from the

prosecution would subserve the cause of public interest or

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

prosecutor to state what material he has considered. It

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

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

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

itself that from the material it can reasonably be held that

the withdrawal of the prosecution would serve the public

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

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

Court to see whether the grant of consent would thwart or

stifle the course of law or cause manifest injustice. A

Page 20 Court while giving consent under Section 321 of the Code

is required to exercise its judicial discretion, and judicial

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

mechanical manner. The Court cannot give such consent

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

the material on record to see that the application had

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

interest and justice. Another aspect the Court is obliged

to see whether such withdrawal would advance the cause

of justice. It requires exercise of careful and concerned

discretion because certain crimes are against the State

and the society as a collective demands justice to be

done. That maintains the law and order situation in the

society. The public prosecutor cannot act like the post

office on behalf of the State Government. He is required

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

form an independent opinion that the withdrawal of the

case would really subserve the public interest at large. An

order of the Government on the public prosecutor in this

regard is not binding. He cannot remain oblivious to his

lawful obligations under the Code. He is required to

constantly remember his duty to the Court as well as his

Page 21 duty to the collective. In the case at hand, as the

application filed by the public prosecutor would show that

he had mechanically stated about the conditions-

precedent. It cannot be construed that he has really

perused the materials and applied his independent mind

solely because he has so stated. The application must

indicate perusal of the materials by stating what are the

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

such withdrawal of the prosecution would serve public

interest and how he has formed his independent opinion.

As we perceive, the learned public prosecutor has been

totally guided by the order of the Government and really

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

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

a case under the Prevention of Corruption Act. They have

taken note of the fact that the State Government had

already granted sanction. It is also noticeable that the

Anti Corruption Bureau has found there was no

justification of withdrawal of the prosecution.

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

own gravity. In Niranjan Hemchandra Sashittal and

Page 22 another v. State of Maharashtra

11

while declining to

quash the proceeding under the Act on the ground of

delayed trial, the Court observed thus:

“In the case at hand, the appellant has been

charge-sheeted under the Prevention of

Corruption Act, 1988 for disproportionate

assets. The said Act has a purpose to serve.

Parliament intended to eradicate corruption and

provide deterrent punishment when criminal

culpability is proven. The intendment of the

legislature has an immense social relevance. In

the present day scenario, corruption has been

treated to have the potentiality of corroding the

marrows of the economy. There are cases

where the amount is small and in certain cases,

it is extremely high. The gravity of the offence

in such a case, in our considered opinion, is not

to be adjudged on the bedrock of the quantum

of bribe. An attitude to abuse the official

position to extend favour in lieu of benefit is a

crime against the collective and an anathema to

the basic tenets of democracy, for it erodes the

faith of the people in the system. It creates an

incurable concavity in the Rule of Law. Be it

noted, system of good governance is founded

on collective faith in the institutions. If

corrosions are allowed to continue by giving

allowance to quash the proceedings in

corruption cases solely because of delay

without scrutinising other relevant factors, a

time may come when the unscrupulous people

would foster and garner the tendency to pave

the path of anarchism.”

20. Recently, in Dr. Subramanian Swamy v.

Director, Central Bureau of Investigation & Anr.

12

,

11

(2013) 4 SCC 642

12

Writ Petition (Civil) No. 38 of 1997 etc. pronounced on May 06, 2014

Page 23 the Constitution Bench while declaring Section 6A of the

Delhi Special Police Establishment Act, 1946, which was

inserted by Act 45 of 2003 as unconstitutional has opined

that:-

“It seems to us that classification which is made

in Section 6-A on the basis of status in the

Government service is not permissible under

Article 14 as it defeats the purpose of finding

prima faice truth into the allegations of graft,

which amount to an offence under the PC Act,

1988. Can there be sound differentiation

between corrupt public servants based on their

status? Surely not, because irrespective of their

status or position, corrupt public servants are

corrupters of public power. The corrupt public

servants, whether high or low, are birds of the

same feather and must be confronted with the

process of investigation and inquiry equally.

Based on the position or status in service, no

distinction can be made between public

servants against whom there are allegations

amounting to an offence under the PC Act,

1988.”

And thereafter, the larger Bench further ruled:

“Corruption is an enemy of the nation and

tracking down corrupt public servants and

punishing such persons is a necessary mandate

of the PC Act, 1988. It is difficult to justify the

classification which has been made in Section 6-

A because the goal of law in the PC Act, 1988 is

to meet corruption cases with a very strong

hand and all public servants are warned through

such a legislative measure that corrupt public

servants have to face very serious

consequences.”

And again, the larger Bench observed:

Page 24 “70. Office of public power cannot be the

workshop of personal gain. The probity in

public life is of great importance. How can two

public servants against whom there are

allegations of corruption of graft or bribe taking

or criminal misconduct under the PC Act, 1988

can be made to be treated differently because

one happens to be a junior officer and the other,

a senior decision maker.

71. Corruption is an enemy of nation and

tracking down corrupt public servant,

howsoever high he may be, and punishing such

person is a necessary mandate under the PC

Act, 1988. The status or position of public

servant does not qualify such public servant

from exemption from equal treatment. The

decision making power does not segregate

corrupt officers into two classes as they are

common crime doers and have to be tracked

down by the same process of inquiry and

investigation.”

21. We have referred to these authorities only to show

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

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

nature of application filed by the public prosecutor, we are

of the considered opinion that view expressed by the

learned trial Judge as well as the High Court cannot be

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

that there is no ground to show that such withdrawal

would advance the cause of justice and serve the public

interest. That apart, there was no independent

Page 25 application of mind on the part of the learned public

prosecutor, possibly thinking that the Court would pass an

order on a mere asking. The view expressed in Name

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

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

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

been correctly appreciated by the learned trial Judge and

the High Court. We have referred to the said authority

and the later decisions which are on the basis of Sheo

Nandan Paswan’s case have laid down the principles

pertaining to the duty of the public prosecutor and the

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

trial Court and the High Court is absolutely impregnable

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

distinguishable on facts.

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

substratum, is dismissed.

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

[Dipak Misra]

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

Page 26 [Pinaki Chandra Ghose]

New Delhi;

July 31, 2014.