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PETITIONER:

MOHD. MUMTAZ

Vs.

RESPONDENT:

NANDINI SATPATHY AND ORS.

DATE OF JUDGMENT20/12/1986

BENCH:

VENKATARAMIAH, E.S. (J)

BENCH:

VENKATARAMIAH, E.S. (J)

BHAGWATI, P.N. (CJ)

KHALID, V. (J)

OZA, G.L. (J)

NATRAJAN, S. (J)

CITATION:

1987 SCR (1) 680 1987 SCC (1) 279

JT 1987 (1) 28

ACT:

Criminal Procedure Code, 1973-- Section 321 -- Withdraw-

al from prosecution--Public Prosecutor--Right of--Conditions

under which -withdrawal is permissible-- Competency of Court

to permit withdrawal.

HEADNOTE:

Prosecution was launched against Respondent No. 1 under

s.5(1)(d) read with s.5(2) of the Prevention of Corruption

Act, 1947 for having assets disproportionate to her known

sources of income.

The Special Public Prosecutor filed application for

withdrawal of the prosecution against Respondent No. 1. The

Additional Special Judge allowed the application. The High

Court dismissed the revision petition and confirmed the

order permitting withdrawal of the case.

Dismissing the Appeal to this Court,

HELD: Per Venkataramiah, J.

The Public Prosecutor had applied his mind to the case

before applying for withdrawal and the Chief Judicial Magis-

trate has not committed any error in giving his consent to

such withdrawal. [683D-E]

The State of Bihar v. Ram Naresh Pandey, [1957] S.C.R.

279 and R.K. Jain etc. v. State through Special Police

Establishment and others, [1980] 3 SCR 982, Relied upon.

Per Khalid, J.

1. What is to be decided in this case is whether the

order passed by the Magistrate under s.32I, Criminal Proce-

dure Code, is proper or not. The Court is not called upon to

consider the propriety of the charge framed and then examine

the evidence and see whether the accused should be dis-

charged or the charge framed should be upheld. [684D-E]

2. Consent can be given for withdrawal from the prosecution

of a

681

case, not only when the charge is not framed, but even after

the charge is framed and at any time before the judgment.

[684B-C]

The State of Bihar v. Ram Naresh Pandey, [3957] SCR

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279 and R.K. Jain etc. v. State through Special Police

Establishment and others, [1980] 3 SCR 982, Relied upon.

Per Oza, J.

I. Ordinarily when the exercise of considering the

material on record for the purpose of determining whether

there is sufficient material to sustain the prosecution can

be performed by the Court under s.239 of the Code of Crimi-

nal Procedure 1973, the Court should not allow the prosecu-

tion to be withdrawn under s.321. [688C-E]

2. In the present case, there is no point in setting

aside the withdrawal and sending the case hack to the Spe-

cial Judge because there is no material at all to show that

there is a prima facie case and the charges appear to be

groundless. Respondent No. 1 would, therefore, be entitled

to be discharged under s.239. It is, therefore, not neces-

sary or expedient to interfere with the order made by the

Special Judge and confirmed by the High Court. [688E-F]

3. When the charge-sheet was filed, the Income Tax

Department re-opened the assessment, examined the whole

matter afresh and passed final orders during the pendency of

the case in this Court explaining all the items of assets

said to have been unaccounted and suppressed as also entries

pertaining to the house construction and other assets, which

show that there is nothing to indicate that Respondent No. 1

was possessed of assets disproportionate to her means.

[688A-B]

4. The application moved by the Special Public Prosecutor

for withdrawal from the prosecution was, therefore, clearly

bona fide and' in furtherance of public justice and it was

clearly a false and vexatious criminal prosecution launched

against respondent No. 1. The Special Judge also on these

facts took the view that no useful purpose would be served

by continuance of the prosecution and accordingly permitted

the withdrawal which was upheld by the High Court in revi-

sion. [688B]

5. The first allegation relates to payments made to

Dharitri and Navjat Printers. Dharitri is a newspaper which

receives advertisements. There is nothing to show that the

payment received by Dharitri for advertisement had anything

to do with respondent No.1. [687.B-C]

682

6. The second allegation relates to valuation of assets

and the construction of the house and the third relates to

the monies received by the U.P.C.C. which are alleged to

have been paid by respondent No. 1. Lastly there are similar

items of monies paid to the sons and found in the possession

of her husband. It was on the basis of these allegations

that the Income Tax Department re-opened the assessments,

conducted detailed enquiries and ultimately passed a final

order accepting her returns as correct and rejecting the

allegations that she had suppressed any income from undis-

closed sources. [687C-E]

7. The application for withdrawal was made by the Spe-

cial Public Prosecutor in 1980 when respondent No.1 had

nothing to do with the party in power as she was in opposi-

tion party after the elections held in 1980. This is a

strong circumstance which indicates that the application for

withdrawal was made in furtherance of public justice.

[687E-G]

8. In the fight of the facts an record and the order

passed by the Income Tax Officer explaining all the items of

assets alleged to be unaccounted and suppressed, the charges

against respondent No. 1 appear to he groundless. [688C]

Per Natarajan, J.

1. Section 321 makes it clear that an application for

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withdrawal of a case can he made by a Public Prosecutor or

Assistant Public Prosecutor who is incharge of the case

concerned, at any time before the judgment is pronounced.

The application for withdrawal of prosecution may he made at

any time ranging between the Court taking cognizance of the

case till such time the Court actually pronounces judgment.

Even where reliable evidence has been adduced to prove the

charges, the Public Prosecutor can seek the consent of the

Court to withdraw the prosecution. The section does not,

therefore, lay down that an application for withdrawal of

the prosecution should necessarily he made at the earliest

stages of the case or only if the evidence is of a weak and

infirm nature. [689E-G]

2. The Special Public Prosecutor had set out the reasons

which justified filing of an application under s.321 of the

Code for the withdrawal of the prosecution, and the Magis-

trate has considered the matter judicially, before giving

his consent. [689G-H]

The State of Bihar v. Ram Naresh Pandey [1157] SCR 279

and R.K. Jain etc. v. State through Special Police Estab-

lishment and others, [1980] 3 SCR 982, relied upon.

683

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 48

of 1983.

From the Judgment and Order dated 14.5.1981 of the

Orissa High Court in Crl. R. No. 22 of 1981.

V.J. Francis for the Appellant.

F.S. Nariman, Anil B. Divan, L.R. Singh, R.K. Mehta,

G.S. Chatterjee and Vinoo Bhagat for the Respondents.

The Judgment of the Court was delivered by

VENKATARAMIAH, J. I agree that this appeal has to be

dismissed. I am of the view that the decision in The State

of Bihar v. Ram Naresh Pandey, [1957] S.C.R. 279 interpret-

ing section 494 of the Code of Criminal Procedure, 1898 and

the decision in R.K. Jain etc. v. State through Special

Police Establishment and Others, [1980] 3 SCR 992 interpret-

ing section 321 of the Code of Criminal Procedure, 1973 do

not call for any reconsideration. I am in full agreement

with the views expressed in these decisions. I am satisfied

that the Public Prosecutor had applied his mind to the case

before applying for withdrawal and the Chief Judicial Magis-

trate has not committed any error in giving his consent to

such withdrawal.

The appeal is, therefore, dismissed.

KHALID, J. I have just received (at 7.40 p.m. on 19th

December, 1986) a draft Judgment by Oza, J. in the above

case. I agree with the conclusion that the appeal has to be

dismissed, but not, with respect, with the reasoning con-

tained in the Judgment. Since the case is listed for Judg-

ment on 20th December, 1986, I do not have time to write a

detailed Judgment.

The question to be decided in this appeal is the scope

of Section 32 1 of Criminal Procedure Code, and I do not

agree with the following observation of Oza, J. since there

is no question of setting aside of the order passed by the

learned Additional Special Judge, Bhubaneswar;

" ...... But in the present case, there is

no point in setting aside the withdrawal and

sending the case back to the learned Special

Judge because after considering the entire

material on record in detail we are of the

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view that there is

684

no material at all on the basis of which it

could be said that there is a prima facie case

against respondent No. 1 and the charges

against respondent No. 1 appear to be ground-

less and respondent No. 1 would, therefore, in

any event be entitled to be discharged under

Section 239 ... "

A cursory glance at Section 32 1 will satisfy anyone that

consent can given for withdrawal from the prosecution of a

case, not only when the charge is not framed, but even after

the charge is framed and at any time before the Judgment.

This appeal along with Criminal Appeal Nx. 49 of 1983

were directed to be posted before a Constitution Bench to

consider the scope of Section 32 1, Criminal Procedure Code.

That being so, I do not think it proper to abandon that

pursuit and take refuge under Section 239 of Criminal Proce-

dure Code.

In a separate Judgment to be pronounced by me in Crimi-

nal Appeal No.241 of 1983, I have outlined the scope of

Section 321 of Criminal Procedure Code. What is to be decid-

ed in this case is whether the order passed by the Magis-

trate under Section 321, Criminal Procedure Code, is proper

or not. We are not called upon to consider the propriety of

the charge framed and then examine the evidence and see

whether the accused should be discharged or the charge

framed should be upheld.

I adopt the reasons given by me in Criminal Appeal No.

241 of 1983, relying upon the decisions reported in [1957]

SCR 279 (State of Bihar v. Ram Naresh Pandey) and in [1980]

3 SCR 982 (R.K. Jain v. State) and uphold the order of

withdrawal passed by the Additional Special Judge, Bhubanes-

war, and upheld by the High Court in revision, and dismiss

the appeal.

OZA, J. The present appeal by special leave is directed

against the judgment and order of the High Court of Orissa

dated 14th May 1981 in Criminal Revision No. 22 of 1981

arising out of an order dated 20th December, 1980 of the

Additional Special Judge, Bhubaneswar allowing an applica-

tion filed by the Special Public Prosecutor praying for

withdrawal from prosecution in Case No. 13 of 1979 against

respondent No. 1. By the impugned judgment the Hon'ble High

Court dismissed the revision petition filed by the appellant

and confirmed the order passed by the learned Additional

Special Judge permitting withdrawal of the case by the

Special Public Prosecutor. The Vigilance

685

Department of the State submitted a charge-sheet against

respondent No. 1 on the allegation that she had no assets

prior to her election as a member of the Rajya Sabha in the

year 1962. Subsequently she was re-elected and became a

Union Deputy Minister from January 1966 to June 1970 and a

Union State Minister from June 1970 to June 1972. She became

the Chief Minister of Orissa from 15.6.72 to 28.2.73 and

again from 6.3.74 to 26.12.76. Even before becoming the

Chief Minister of Orissa she had no assets save and except a

thatched roof house at Pithapur, Cuttack and a bank balance

of Rs. 18,000. It was alleged that during her incumbency as

Chief Minister, the bank balance increased as well as her

other assets swelled-up and it was alleged that in 1977 her

net assets were to the tune of Rs.7,54,735,85 p. which were

disproportionate to her known sources of income.

In 1977 the respondent No. 1 left the Congress Party and

joined the Congress for Democracy. In the parliamentary

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elections in 1977, the Congress was defeated and Janata

Party came to power and also in the Assembly elections which

followed, the Congress lost and the Janata Party came to

power in the State. It appears that although the Congress

for Democracy which respondent No. 1 had joined, merged with

the Janata Party, still many leaders of the Janata Party had

a grudge against her as during her regime as Chief Minister

when emergency was clamped, a number of leaders who were

prominent in the Janata Party were put behind bars and

ultimately for having assets disproportionate to her known

sources of income, a prosecution was launched against her

under Section 5(1)(d) read with Sec. 5(2) of the Prevention

of Corruption Act.

One of the allegations on the basis of which the

charge-sheet was filed was that on 15.7.74, respondent No. 1

passed an order in favour of M/s Ferro Alloys Corporation.

This order was, passed by her in her official capacity and

it is alleged that because of this order M/s Ferro Alloys

made a huge profit of about Rs.4 crores and on 3.10.75 and

7.10.75 cheques in the aggregate sum of Rs.48,000 were given

by M/s Ferro Alloys Corporation to Dharitri a newspaper for

an advertisement which was' published in the 'newspaper. It

was therefore alleged that respondent No. 1 obtained

Rs.48,000 from M/s Ferro Alloys Corporation.

The second allegation against respondent No. 1 was that

on 14.6.76 the Prime Minister requested respondent No. 1 to

indicate the approximate value of her recently completed

house at Bhubaneswar and no reply to this query is found on

the record of the Prime Minister.

686

The construction of the house started in September 1974 and

ended on 29th February, 1976. The investment in the con-

struction of the house is said to be Rs.3,32,000 and odd

whereas according to respondent No. 1 she had spent an

amount of Rs.2,68,000 and the difference of Rs.64,000 ac-

cording to the allegation of the prosecution was the amount

acquired by respondent No. 1 by illegal and corrupt means as

Chief Minister. It was alleged that the whole sum of

Rs.3,27,614 is surreptitious and not disclosed in income-tax

return for the financial years 1974-75 and 1975-76. It is

also alleged that Navjat Printers which is owned by Samajba-

di Society received a sum of Rs.3,94,540 between 6.3.74 and

29.2.76 in respect of orders placed by U.P.C.C. The allega-

tion is that U.P.C.C. between 6.3.74 and 29.2.76, paid only

Rs.60,964 and as regards the balance of Rs.3,33,576 it must

have been acquired by respondent No. 1 herself and paid to

Navjat Printers.

It was alleged that Shri Natchiketa Satpathy, son of

respondent No. 1 purchased a flat at Kailash Apartments, New

Delhi and for this purpose respondent No. 1 paid Rs.50,000

to her son in three instalments. Similarly it was alleged

that on 15.3.75 respondent No. 1 paid Rs. 15,000 to her

other son Tathagat Satpahty and managed to get invested a

sum of Rs.33,000 in different names fictitiously in M/s

Rosambi Private Limited. An amount of Rs. 15,000 is said to

have been a payment by cheque.

It was alleged that in the house of her husband, cash

was contained in two bags which was to the tune of Rs.5

1,766. One of the bags there had a visiting card of the

First Secretary of the USSR Embassy. This cash was discov-

ered after respondent No. 1 ceased to be Chief Minister. The

search was made on 8th July 1977 when respondent No. 1 had

already ceased to be Chief Minister nearly nine months

before that date. It was alleged that the cash must be

deemed to have been of the ownership of respondent No. 1 and

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that it must have been acquired by her during the period

when she was the Chief Minister.

It appears that when charge-sheet was filed against

respondent No. 1, the Income Tax Department also issued

notice for re-opening of her assessments and examined the

whole matter afresh and during the period that this case has

been pending here, final orders have been passed by the

Income Tax Department which explain in detail all the items

of assets which according to the prosecution were dispropor-

tionate to the legitimate means of respondent No. 1. This

matter came up before us along with another case from Bihar

where we heard arguments at length on the question of with-

drawal from the prosecution

687

and its legal implications, but so far as the present case

is concerned, in view of the facts as they emerge, we do not

find it necessary to go into all these questions. The alle-

gations can be broadly classified into three heads:

The first head relates to payments made to Dharitri and

Navjat Printers or Samajbadi Society. These are clearly

distinct institutions which could not be said to belong to

respondent No. 1. It is not disputed that Dharitri is a

newspaper which receives advertisements and payment for

advertisement made to Dharitri could not possibly be co-

related to respondent No. 1 or regarded as receipt of re-

spondent No.1. There is nothing at all to show that the

payment received by Dharitri for advertisement (which in

fact was published in Dharitri) had anything to do with

respondent No. 1.

The second head of allegations relates to valuation of

assets and the construction of the house and the third

category to the monies received by the U.P.C.C. which are

alleged to have been paid by respondent No. 1. Lastly there

are similar items of monies paid to the sons and found in

the possession of her husband. So far as these allegations

are concerned, it may be pointed out that it was on the

basis of these allegations that the Income Tax Department

re-opened the assessments after giving notice and conducted

detailed enquiries and ultimately passed a final order

accepting her returns as correct and rejecting the allega-

tions that she had suppressed any income from undisclosed

sources.

It is also significant that the application for with-

drawal was made by the Special Public Prosecutor in 1980

when respondent No. 1 had nothing to do with the party in

power, as after the elections held in 1980, Congress-I came

back to power in Orissa and J.B. Patnaik became the Chief

Minister. Respondent No. 1 contested the Assembly election

as a candidate of Congress (Urs) Party and was elected,

defeating her Congress-I opponent Shri Profulla Bhanja and

she was a member of Congress (Urs) (Opposition) during that

period. This is to our mind a strong circumstance which

indicates that the application for withdrawal was made in

furtherance of public justice and distinguished the case of

respondent No. 1 from that of Dr. Jagannath Misra in the

Bihar case which is being disposed of by another judgment

today.

The Income Tax Officer examined in detail each one of

the items of assets said to have been unaccounted and sup-

pressed and the order passed by the Income Tax Officer which

has been placed on record

688

clearly explains all the items as also entries pertaining to

the house construction and other assets and shows that there

is nothing to indicate the respondent No. 1 was possessed of

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assets disproportionate to his means. The application moved

by the Special Public Prosecutor for withdrawal from the

prosecution was therefore clearly bonafide and in further-

ance of public justice and it was clearly a false and vexa-

tious criminal prosecution which had been launched against

respondent No. 1 which was sought to be halted. The learned

Special Judge also on these facts took the view that no

useful purpose would be served by continuance of the prose-

cution and he accordingly permitted the withdrawal. The High

Court too maintained the order of the learned Special Judge.

We agree that in the light of the facts on record and the

order passed by the Income Tax Officer which explains all

the items of assets alleged to be unaccounted and sup-

pressed, the charges against respondent No. 1 appear to be

groundless. It is true that ordinarily when the exercise of

considering the material on record for the purpose of deter-

mining whether there is sufficient material to sustain the

prosecution can be performed by the Court under Section 239

of the Code of Criminal Procedure 1973 the Court should not

allow the prosecution to be withdrawn under Section 321 as

held by us in the Judgment in Dr. Jagannath Misra's case,

which has been delivered today. But in the present case

there is no point in setting aside the withdrawal and send-

ing the case back to the learned Special Judge because after

considering the entire material on record in detail we are

of the view that there is no material at all on the basis of

which it could be said that there is a prima facie case

against respondent No. 1 and the charges against respondent

No. 1 appear to be groundless and respondent No. 1 would

therefore in any event be entitled to be discharged under

Section 239. We do not therefore think it necessary or

expedient to interfere with the order made by the learned

Special Judge and confirmed by the High Court.

The appeal will therefore stand dismissed.

NATARAJAN, J. In the withdrawal petition filed on

15.11.80 and the supplementary withdrawal petition filed on

16.12.80 the Special Public Prosecutor (Vig.) C.D., Cuttack

has set out the factors which have prevailed with him to

seek the consent on the Court to withdraw the prosecution

launched in V.C.R. Case No. 33 of 1977 against the accused

therein, viz. Smt. Nandini Satpathy & Anr.

The Additional Chief Judicial Magistrate has passed a

detailed and considered order on 20.12.80 wherein he has

fully discussed the

689

matter and thereafter given consent to the withdrawal of the

prosecution. The conclusion of the learned Magistrate is

contained in para 12 which reads as follows:--

"Taking the facts and circumstances of the

case into consideration. I am of the view that

the ends of public justice be met if the

consent be given for withdrawal of the case."

The order of the learned Magistrate has been critically

assessed by a learned Judge of the Orissa High Court in Crl.

Rev. No. 21 and 22 of 1981 filed before the High Court. The

learned Judge upheld the order of the Magistrate 'and has

summed up the High Court's view as under:--

"The observations of the Supreme Court (in

R.K. Jain v. State--AIR 1980 Supreme Court

1510--1980 Volume 3 SCR 982) would not justify

entertaining this application when a Public

Prosecutor in his application had indicated

that the evidence already collected did not

support the prosecution there was no prospect

of a conviction and the appropriate authority

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in the broad ends of justice need not contin-

ue."

Section 321 makes it clear that an application for

withdrawal of a case can be made by a Public Prosecutor or

Assistant Public Prosecutor who is incharge of the case

concerned, at any time before the judgment is pronounced. In

other words, it means that the application for withdrawal of

prosecution may be made at any time ranging between the

court taking congnizance of the case till such time the

court actually pronounced judgment. Consequently, it follows

that even where reliable evidence has been adduced to prove

the charges, the Public Prosecutor can seek the consent of

the Court to withdraw the prosecution. The Section does not,

therefore, lay down that an application for withdrawal of

the prosecution should necessarily be made at the earliest

stages of the case or only if the evidence is of a weak and

infirm nature.

In his application a Special Public Prosecutor had set

out the reasons which justified his filing an application

under Section 32 1 of the Code to seek the consent of the

Court for the withdrawal of the prosecution. The learned

Magistrate has considered the matter judicially in the light

of the decision of this Court in R.K. Jain v. State, [1980]

3 SCR 982 which has followed the earlier decision in State

of

690

Bihar v. Ram Naresh Pandey, [1957] SCR 279. The order of the

learned Magistrate has been approved and affirmed by the

High Court.

There are no materials in the appeal to persuade me to

hold that the order passed by the Additional Chief Judicial

Magistrate or the High Court suffers from any error of law,

patent or latent. In that view the appeal has to be dis-

missed.

A.P.J. Appeal

dismissed.

691