SHEO NANDAN PASWAN versus STATE OF BIHAR & ORS.

2. This appeal had an unpleasant history. I am grieved at the.-~·\­ tum of events in this case. Even so, it is necessary to have the utmost restraint in dealing with the said tum of events, because what is in- volved here, is the credibility of this Court as the Highest Court of the land. In two well reasoned ooncurring Judgments, Beharul Islam, J. and R.B. Misra, J. dismissed the appeal by their Judgments dated December 16, 1982 and by an equally reasoned Judgment, Tulza- purkar, J. dissented from the main Judgment and allowed the appeal. 't- These Judgments are reported in 1983 (2) SCR 6 I. One of the Judges (Baharul Islam,J) demited office on 13. 1.1983. An application was H filed on 17. 1.· 1983, to review the judgment. This application can only SHEO NANDAN PASWAN v. STAlE OFBIHAR [KHALID,J.] rt ->r be to review the concurring judgments. On 27.1.1983, an application to raise additional grounds, specifically, based on bias was filed. The review application was considered in chambers on 13.4. 1983. Notice was issued, returnable on 19.4.1983. In July, 1983, the matter was again considered in chambers when allegation of bias was given up. In August, 1983, the matter was heard in open Court by Tulzapurkar, J., 15. –~ A.N. Sen, J. and R.R Misra, J. On.August 22, 1983, the order worded. as follows (reported in 1983(4) SCC 104) was by A.N. Sen, J. "I, therefore, admit the review petition and direct the re- …… hearing of the appeal." . .{ The learned Judge who gave this order justified his conclusion with the c ·Ir following observation: "In view of the limited scope of the present proceeding I do not consider it necessary to deal at length with the various submissions made by the learned counsel appearing on be- half of the parties. In the view that I have taken after a very anxious and careful consideration of the facts and circumst- ances of this case I am further of the opinion that it will not be proper for me in this proceedings to express any views on the same. Applying the well-settled principles governing 4, a._review petition and giving my very anxious and careful · .consideration to the facts and circumstances of this case, I have come to the conclusion that the review petition should be admitted and the appeal should be re-heard. I have deliberately refrained from statingmy reasons and the vari- ous grounds which have led me to this conclu,sion. Any decision of the facts and circumstances which, to my mind, constitute errors apprarent on the face ?f the record and my reasons for the finding that these facts and circumst- y' ances ·constitute errors apparent on the face of the record. resulting in the success of the review petition; may have the possibility of prejudicing the appeal which as a result of my .;;, decision has to be re-heard." In paragraph 15, the learned Judge directed as follows: "Accordingly, I further direct that the appeal be re-heard immediately after the decision ofNandani Satpathy case." The other Judges agreed with this. c [1987] l S.C.R.

3. Thus the Bench that heard the review petition did not disclose in the order, the reasons why re-hearing of the appeal was ordered nor did it outline in the order, what constituted errors apparent on the face of the record to justify the order passed. By this order, the Bench did not set aside the earlier judgment. All that was done was to admit the review petition and to direct re-hearing of the appeal. The one ques- tion seriously debated at the bar is whether the Judgment sought to be reviewed was set aside or not. It was forcefully contended that the earlier judgment was not set aside and was still at large. This was met with the plea that if it was not set aside, what is it that the Court now hears? I will examine this contention presently.

4. One incontrovertible fact is that the earlier was not in terms set aside. Admitting a review petition is not the same thing as setting '<I aside the order, sought to be reviewed. Order 47 Rule I C.P.C. deals with review in civil matters. Article 137 of the Constitution is a special power with the Supreme Court to review any judgment pronounced or order made by it. An order pas- sed in a criminal case can be reviewed and set aside only if there are errors apparent on the record. In this case, we are left only to guess what reasons or grounds persuaded the Judge to pass this order, for, the learned Judge has deliberately refrained from stating his reasons and 'various grounds' in the order. That the Judgment was not set aside can be concluded from one important fact. One of the Judges who was a party to this order (R.B. Misra, J) had earlier dismissed the appeal with convincing reasons. If the Judgment was set aside by the order passed in the review petition, the learned Judge ~ould definitely have given his own reasons for doing so by a separate order. This has not been done. All that the order says is that the review petition had been admitted. The direction >-11 to re-hear the appeal, therefore, can only be to ascertain reasons to see whether the Judgment need be set aside.· In my view, with great respect, it would be highly unfair to the learned Judge (R.B. Misra, J.) to. contend that his earlier Judgment was set aside. It is left to us now, the unpleasant task to unravel this mystery and to divine the mind of man. I must confess my failure in this task. After hearing the lengthy arguments, I have not been able to find any error apparent on the face of the record in the earlier Judgment. The direction contained in the second order was to re-hear the appeal. That wish has been set aside by the reviewing order nor any error – SHEONANDANPASWAN v. STATEOFBIHAR [KHALID,i.J ~ discemab[e on the face of the record shown, in my considered view, the original order has to stand, which means that the appeal has to be r dismissed affirming it. This is the short manner in which this appeal " can be dismissed and I do so. However, I do not propose to rest , content with this manner of disposal of the appeal.

5. This matter was heard at lengtl;l. The stand taken by the appellant is that the earlier Judgment has been set aside. Therefore, it is only fair that the facts of the case and the questions of law bearing on them are also considered since the matter has been placed before a bench of five Judges.

6. The appeals referred to this Bench do not raise any questions c of constitutional law. There are decisions rendered by Benches of three Judges and two Judges of this Court wherein the scope of Section 32 1 of Criminal Procedure Code (Section 494 of Old Criminal Proce- dure Code) has been discussed at length. Two criminal appeals 48 and 49 of 1983 were referred to a Constitution Bench, originally. The Bench that referred these appeals did not doubt the correctness of such earlier Judgments. The reference order reads as follows: "Special leave granted in both the matters. In view ofcer- tain decisions referred to at ihe time of the hearing of the petitions with differing interpretations, it appears that in order to clarify the legal issues connected with po:-ver of withdrawal of criminal cases and put them beyond pale of controversy, it is better the matter b<; placed befoe Hon'ble. the Chief Justice to place the matter before a larger Bench of five Judges." p · It is this order of reference and the direction by the Bench that :/ heard the review petition, to re-hear this appeal immediately after the decision in Nandani Satpathy's case, criminal appeal Nos.48 and 49 of 1983, that has brought this case also before this Bench. This is the accidental coincidence about which reference was made by me in the opening paragraph of this Judgment.

7. It is not necessary to deal at length with· the facts leading to this appeal. The background facts have been given in detail in the Judgment sought to be reviewed. I do not, therefore, think it neces- sary to encumber this Judgment with all the facts. i shall refer only to the bare facts necessary for the purpose of this Judgment. c (1987] l S.C.R.

8. The appellant and respondent No. 2 belonged to the rival political parties. The appellant is a member of the Bihar Legislative Assembly. Respodent No. 2 was the Chief Minister of Bihar. Respon- dent No. 4 was a close associated of Respondent No. 2. Respondent No. 3 started the Patna Urban Co-operative Bank and became its ·Chairman. He and respondent No. 2 were close friends. There were some irregularities in the affairs of the bank. Proceedings were taken to prosecute those connected with the bank for the irregularities. The then Chief Minister (Respondent No. 2) ordered the prosecution of the office' bearers and staff of the ba\tk including its Honorary Secre- tary Shri K.P. Gupta, Manager M.A. Haidari and the loan clerk. Consequent upon a mid tenn poll to the Lok Sabha in March, 1977, there was a change of Ministry at the Centre. In April, 1977, the Patna Secretariat Non-Gazetted Employees Association submitted a representation against the second respondent to the Prime Minister and the Home Minister of the Union Government. In June, the Government, headed by the second respondent, was replaced by the D Government headed by Shri Karpoori Thakur. The Employees' Association submitted a copy of their representation to the new Chief Minister on July 9, 1977, requesting him to enquire into the allegations against the second respondent. After a detailed procedure and ob- taining requisite sanction from the Governor, a criminal case was instituted by the vigilance against the second respondent and others. E On 19.2.1979, a charge-sheet was filed.

9. The charge-sheet filed by the State of Bihar against the respondents on 19th February, 1979, was for offences under Sections 420/466/471/109/120-B ofl.P.C. and under Sections S(I)(a), S(a)(b) & 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. The charge against the second respondent was that he, who at all material times, was either a Minister or the Chief Minister of Bihar abusing his position as a public servant, in conspiracy with the other accused, sought to interfere with the criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others with a view to obtain to himself and to the· other respondents pecuniary G advantage to the detriment of Patna Urban Cooperative Bank. The Cheif Judicial Magistrate took cognizance of the case on 29. 7. 1979. IO. There was a change of ministry in Bihar in June, 1980 and the second respondent became the Chief Minister again. A policy decision was taken on !0.6. !980, that criminal cases launched out of 1-l political vendetta and cases relating to political agitation be with- SHEONANDANPASWAN v. STATEOFBIHAR (KHALID,!.] drawn. On 24.2.1981, the Government aJ!J?<>inted Shri L.P. Sinha as.a A Special Public Prosecutor. On 25.2.1981, the secretary to the Govern- ment of ·Bihar wrote a letter to the District Magistrate informing him of the policy decision taken by the Government to withdraw from prosecution of two vigilance cases including the case with which we are concerned. He was requested to take steps for the withdrawal of the case. On 17th June, 1981, Shri Sinha made an application under Sec- lion 321 of the Cr.P.C. to the Special Judge seeking permission to withdraw from the prosecution of respondent Nos. 2, 3 & 4, on four grounds; (a) Lack of prospect of successful prosecution in the light of the evidence, {b) Implication of the persons as a result of political and personal vendetta, ( c) Inexpediency of the prosecution for the reasons of the State and public policy and ( d) Adverse effects that the con- c tinuance of the prosecution will bring on public interest in the light of –"' I ,, ' the changed situation. The learned Special Judge gave consent sought, by his order dated 20th June, 198 !. A criminal revision ~as filed be- fore the High Court against this order. This was dismissed on 14th September, 1981 and this disinissal has given rise to this appeal. 1 !. The application for withdrawal and their order granting consent are assailed on the following grounds: ( 1) The withdrawal was unjustified on merits. (2) It.was against the principles settled by this Court in vari- ous decisions governing the exercise of power under Section 321 Cr.P.C. {3) Neither the public prosecutor nor the Special Judge applied their mind in the application for withdrawal and in the order giving consent. (4) Shri L.P. Sinha was not competent to apply for with- drawal since Shri A.K.Datta's appointment to conduct the case under Section 24{8) ,of the Cr.P.C. had not been cancelled. (5) In the circumstances of the.case Shri Sinha did not func- tion independently but was influenced and guided by the State Government decision in the matter and the withdrawal was vitiated for this reason. 12. I will disJ,ose of. question No. 4 first. It is not necessary to H c consider in detail the question whether Shri Sinha was competent to make the application for withdrawal. The contention is that Shri Sinha's appointment is bad since the earlier appointment of Shri Datta had not been set aside. This case was pressed before the three 'Judges who heard the appeal first and is repeated before us also. All the three • Judges who gave the Judgement in the case of Sheonandan Paswan v. State of Bihar & Ors., [1983] 2 SCR 61, have declined to accept the plea that Shri Sinha was not a competent public prosecutor since Shri Dalt's appointment-had not been cancelled. I adopt the reasons given in the judgment and reject the plea repeated before us . . 13. The real question that has to be answered in this case is whether the executive function of the public prosecutor in applying for, and the supervisory functions of the Court in granting consent to, the withdrawal have been properly performed or not. The four remaining points enumerated above virtually revolve around this question. 14. Section 321 needs three requisites to make an order under it valid; (1) The application should be filed by a public prosecutor or Assistant public prosecutor who is competent to make an application for withdrawal, (2) He must be in charge of the case, (3) The applica- tion should get the consent of the Court before which the case is pending. I find that all the three requisites are satisfied here. The question is whether the functions by the public prosecutor and the Court were properly performed. At no stage was a case put forward by any one that the application made by the public prosecutor was either mala fide or that it was not in good faith. There is no allegation of bias against the Special Judge. The application filed by the public prosecutor dis- closes the fact that he had gone through the case diary and the relevant materials connected with the case and that he came to the conclusion that in the circumstances prevailing at the time of institution .of the case and investigation thereof, the case was instituted on the ground of political vendetta and only to defame the· fair image of J.N. Misra. G This statement of the public prosecutor has not been challenged as borne out .of any unwholesome motive. It has not been made out or suggested that the public prosecutor was motivated by improper con- siderations. The only contention raised is that the reasons are not sufficient or relevant. 15 . .The public prosecutor should normally be credited with fair· ,_ SHEONANDANPASWAN v. STATE OFBJHAR IKHALID,J.] -.>, ness in exercise of his power under Section-32 I, when there is no attack A against him of having acted in an improper manner. He had before him the State Government's communication of the policy taken by it. He had before him the case diary statements and other materials. He. perused them before filing the application. Thus his part under Section 32 l in this case has been performed strictly in conformity with this B Section. The question that remains then is whether the grounds urged by him in support of withdrawal were sufficient in law. The application clearly shows that Sh. Sinha applied his1 mind to the facts of, the case. One would normally not expect a more detailed statement in an appli- cation for withdrawal than the one contained in ·the application in question, when one keeps in view ·the scope of Section 32 l and the wide language it uses. The plea that there was lack of application of c mind by the public prosecutor has only to be rejected in this case. 16. The Chief Judicial Magistrate was acting as the Special Judge. In his order giving consent he has expressly stated that he perused. the relevant records of the case before granting, consent. This .statement was not challenged in the revision petition before the High Court. It has, therefore, to be assumed that the Magistrate perused the relevant records before passing the order. We must give due credence to this statement by the Magistrate. There is no other allegation against the Special Judge. Thus the function of the Special Judge was also performed in conformity with the Section. The matter was taken in revision before the High Cou.rt. The High Court dismissed the revi- sion and while doing so exercised its power properly because the mate- rials before the .Court would justify only an order of dismissal and not an order ordering retrial. 17. Section 321 gives the public prosecutor, the power tor .with- drawal of any case to any stage before judgment is pronounced. This pre-supposes the fact that the entire evidence may have been adduced in the case, before the application is made. When an application under Section 321 Cr.P.C. is made, it is not necessary for the Court tG assess the evidence to discover whether the case would end in conviction o( acquittal. To contend that the Court when it exercises its limited power of giving consent under Section 321 has to assess the evidence and find out whether the case would end in acquittal or conviction, would be to re-write Section 321 Cr.P.C. and would be to concede to the Court a power which the scheme of Section 321 does not contemp- late. The acquittal or discharge order under Section 321 are not the same as the normal final orders in criminal cases. The conclusion will not be backed by a detailed discussion of the evidence in the case of [ 1987] 1 S. C.R. acquittal or absence of prima facie case or groundlessnesss in the case of discharge. All that 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 these facts of the case, will have to see whether the application suffers from such impropreties or illegalities as to cause manifest injustice if consent js given. In this case, on a reading of the application for .Y· withdrawal, the order of consent and the other atttendant circum- stances, I have no hesitation to hold that the application for with- drawal and the order giving consent were proper and strictly within the confines of Section 321 Cr.P.C. 18. While construing Section 321, it is necessary to bear in mind c the wide phraseology used in it, the scheme behind it and its field of –1 operation. True, it does not give any guideline regarding the grounds on which an application for withdrawal can be made. But in applying it, we have to bear in mind that it was enacted with. a specific purpose and it would be doing violence 'to its language and contents by impor- ting into the section words which are not there or by restricting its operation by fetters in the form of conditions and provisos. Its pre- decessor Section 494 had been on the statute book from the inception of the Criminal Procedure Code. When the code was amended in 1973, this Section was re-numbered and the only change brought in this section is to add the words "in charge of the case" while referring to . .+- E the !'ublic Prosecutor or Assistant Public Prosecutor. 19. The old code contained a section which enabled the Adv-0- cate General to inform the High Court before which a case is pending – at any stage before the return of the verdict that he will not further prosecute the defendant upon the charge. This was Section 333 Cr.P.C. The discretion of the Advocate General under this Section was absolute. It was not subject to any control. When the Advocate ~ General informs the High Court that he does. not propose to proceed with the prosecution, the Court has no alternative but to stay all pro- ceedings and to act in accordance with that section. That section has now been deleted from·the Code. Public Prosecutor5 are lesser mortals and therefore the discretion given to them by section 321 is less plenary and is made subject to one limitation and that is the consent of the Court before which the prosecution is pending. Section 333, which was deleted consequent on the disconti- nuance of orginal criminal trials in the High Court, has still a bearing, while considering the scope of Section 321 corresponding to Section SHEONANDAN PASWAN v. STATEOFBIHAR [KHALID,J.l 494 of the earlier code and a comparative study of the two sections and their scope will be appropriate. Both the Sections pertain to with- drawal of prosecutions though at different level. 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 with- draw 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 Advo- cate General and stop the proceedings and discharge or aequit the accused, the subordinate courts when moved under Section 321 · C Cr.P.C. 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 woul<j not have intended to confor 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, b'e just and reasonable to hold that while conferring powers upon the subordinate courts under Sec- tion 494 to give consent to a public prosecutor withdrawing _the pro- secution, 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 proseciltion-The Public Prose- cutor 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 F 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 o~ offences; (b) if it is made after a charge has been framed, or when under this code no charge is required, he shall be aequitted 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 H [1987] l S.C.R. A Judgment is pronounced, but this application for withdrawal has to get the consent of the Court and if the Court gives consent for such with- drawal the accused will be discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is re- quired to be framed. It clothes the public prosecutor to withdraw from the prosecution of any person, accused of an offence both when no B 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". 20. The Section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations c 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 func- tion implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been impro- perly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes . 21. 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 with- drawal 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. 22. It would be useful to compare the scope of the Court's power under Section 32 l with some other sections of the Code. There are some provisos in the Code which relate to the manner in which Courts have to exercise their jurisdiction in pending cases "'._hen applications are made for their withdrawal or when the Court finds that there is no ground to proceed with the cases. Sections 203, 227, 245, 257 and 258 are some such sections. Section 203 of Criminal Procedure Code em- powers a Magistrate to dismiss a complaint at the initial stage itself if he is of opinion that there is no sufficient ground for proceeding. But, t 'f SHEONANDANPASWANv. STATEOFBIHAR [KHALID, I.[ ~ before doing so, the Magistrate is called upoµ to briefly record his A reasons for so doing. The Section reads as follows: t "203. Dismissal of complaint. · If, after·considering the statements on oath (if any) of the complainant and of the witnesses and the result of the B enquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismisss the complaint, and in every such case he shall briefly record his reasons for so doing." Section 245(1) deals with the power of the Magistrate in dis- charging an accused when no case has been made out· against him. However, the _Section imposes an. obligation on the Magistrate to re- . cord his reasons before discharging the accused, Section 245( 1) reads as follows: "If, .. upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge.him." This section gives the Magistrate, in cast;s where he considers that the accused should be discharged, a power to discharge him but the po~er c is fettered by an obligation to record his reasons for doing so. if reasons are not recorded in an order of discharge that would be viola- tive of the mandate of the Section. Section 245(2) enables the Magistrate to discharge an accused "at any previous stage" of the case also if he considers that the charge against an accused is groundless. Sub-section (I) deals with a stage when all evidences referred to in Section 244 is taken. Section 244 deals with evidence in any warrant case i11stituted otherwise than on a police report. It is when all such evidence has been- taken that the -G Magistrate can discharge the accused under Section 245( I), while Sec- tion 245(2) deals with the case in which the evidence referred to in Section 244 has not been taken. Here again the order of discharge by Magistrate has to be supported with reasons for discharge. Section 245(2) reads as follows: c [1987] l S.C.R. "Nothing in this section shall be deemed to prevent a A – Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless." An order of discharge under either of the two sub-sections can be sustained only if the Magistrate has recorded.his reasons.for discharge. Section 257 in chapter 20, deals with trial of summons cases by a Magistrate and provides for the withdrawal of com plaints. It reads as follows: "257. Withdrawal of Complaint-If a complainant, at any · time before a final order is passed in any case under this Chapter, satisfies the Magistrate that there. are sufficient grounds for permitting him to withdraw his complaint against the accused, or if there be more than one accused, against all or any o~ them, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused against when the complaint is so withdrawn." The wording of this section is also significantly different from Section 321. When a complainant wants to withdraw his complaint against the accused, the Magistrate can permit him to withdraw the same and acquit the accused against whom the complaint is so withdraw, only when he satisfies the Magistrate that there are sufficient grounds for p~rmhting him to withdraw his complaint. In other words, the complainant cannot withdraw ·his complaint as he pleases nor can the Magistrate permit him to do so unless the Magistrate satisfies himself that there are sufficient grounds to withdraw the complaint. This sec- tion thus contemplates an order disclosing sufficient grounds to satisfy the Magistrate to accord permission to withdraw the complaint. The power conferred on a Magistrate under this Section is in order. to ensure that a complainant does not abuse the process of law by filing a false or vexatious complaint against another and withdrawing the complaint after ·adequatly embarrassing or harassing the accused so as to escape the consequences of a complaint or suit for malacious pro- secution by the accused in the complaint. Section 258 Cr.P.C. in the same chapter deals with the power of Magistrate to stop proceedings in certain cases which can also be use- fully read. )..– i \, \- •·-1 SHEONANDANPASWANv. STATEOFBIHAR[KHALID,J.] . "258. Power to stop proceedings in. certain cases-In any . summons case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction ·of the Chief Judicial Magistrate, any other Judicial Magis- trate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceeding is made after the evidence of the principal witness has been recor- ded, pronounce a judgment of acquittal, and ill any other case, release the accused, and such release shall have the effect of discharge." This section deals with the stopping of proceedings at. any stage with- out pronouncing any judgment and acquitting_ or discharging the accused a• the case may be, but the section mandates the Magistrate to record his reasons for doing so. The Magistrate, cannot stop procee- dings under this section without recording his reasons. Even in a Sessions case the Sessions Court cannot exercise its powers of dis- charge under Section 227 without recording reasons therefore. Section 227 is in the following terms:- "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the sub- missions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." It is thus clear that . the scheme of the above Sections differ from Section 321. The scope of Section 321 can be tested from another angle and F that with reference to Section 320 which deals with "compounding of offences". Both these Sections occur in Ch<)pter 24 under the heading "General Provisions as to Enquiries' and Trials". Section 320( 1) per- tains to oompounding of offences, in the table,. which are not of a serious nature while Section 320(2) pertains to offences of a slightly serious in nature but not constituting grave crimes. The offences in the G table under Section 320(1) may be compounded by the persons mentioned in the third column of the table without the permission of the Court and those given in the Table-II, under Section 320(2) can be compounded only with the permission of the Court. Under Sub- section 4(a), when a person "who would otherwise be competent to compound an offence under Section 320, is under the age of 18 years c or is an idiot or a lunatic, any person competent to contract on his behalf may, with the permission of the Court, compound such offence. Sub-section 4(b) provides that when a person who would otherwise be competent to compound an offence under this Section is deiid, the legal representative, as defined in the Code of Civil Procedure, of such person may, with the consent of the Court, compound such offence. These two sub-sections use the expression "with the permission of the Court" and "with the consent of the Court'" which are more or _less ejusden generis. On a fair reading of the above-mentioned Sub- sections it can be safely presumed that the Sections confer only a supervisory power on the Court in the matter of compounding of offences. in the manner indicated therein, with this safeguard that the accused does not by unfair or deceitful means, secure a composition of the offence. Viewed thus I don't think that a plea can be successfully put forward that granting permission or giving consent under Sub- section 4(a) or 4(b) for compounding of an offence, the Court is en- joined to make a serious detailed evaluation of the evidence or assess- ment of the case to be satisfied that the case would result in acquittal or conviction. It is necessary to bear in mind that an application for compounding of an offence can be made at any stage. Since Section 32 I finds a place in this chapter immediately after Section 320, one will be justified in saying that it should take its colour from the imme- diately preceding Section and in holding that this Section, which is a kindred to Section 320, .contemplates consent by the Court only in a supervisory manner and not essentially in an adjudicatory manner, the grant of consent not depending upon a detailed assessment of the weight or volume of evidence to see the degree of success al the end of the trial. All that is necessary for the Court to see is to ensure that the application for withdrawal has been properly made, after independent consideration, by the public prosecutor and in furtherance of public interest. I referred to these sections only by way of illustration to emphasis the distinction. between section 32 l and other sections of the Code dealing with orders withdrawing criminal cases or discharging or G stopping· proceedings. My purpose in referring to the above sections is only to show that Section 321, in view of the wide language it uses, enables the public prosecutor to withdraw from the prosecution any accused, the discretion exercisable under which is fettered only by a consent from Court on a consideration of the materials before it and that at any stage of the case. The Section does not insists upon a · H reasoned order by the Magistrate while giving consent. All that is ·~·· .,,. i …. \__ ' ,- -1_· SHEO NANDAN PASWAN v. STATE OFBlllAR (KHALID,J.] necessary to satisfy the section is to see that the public prosecutor acts A in good faith and that the Magistrate is satisfied that the exercise of discretion by the public prosecutor is proper. 23. There is no appeal provided by the Act against an order giving consent under Section. 321. But the. order is revisable under Section 397 of the Criminal Procedure Code. Section 397 gives the B High Court or the Sessions Judge jurisdiction t<;> consider the correct- ness, legality or propriety of any finding; sentence or order and as to the regularity of the proceedings.of any inferior Court. While consi- dering the legality, propriety or the correctness of a finding or a con- clusion, normally, the revising Court does not dwell at length into the facts and evidence of the case. The Court in revision considers the c materials only to satisfy itself about the correctness, legality and. propriety of the findings, sentence or order and refrains from sub- stitu~ing its own conclusion·on an elaborate ·consideration of evidence. An order passed under Section 321 comes to this Court by special leave, under Article 136 of the Constitution of India. The appeal be- fore us came thus. It has been the declared policy of this Court not to embark upon a roving enquiry into the facts and evidence of cases like this or even an order against discharge. This Court will not allow itself to be converted in~o a Court of facts and evidence. This Court seldom goes into evidence and facts. That is as it should be. Any departure from this salutary self imposed restraint is not a healthy practice and does not commend itself to me. It is necessary for this Court to re- member that as an apex Court, any observation on merits or on facts and evidence of a case which has to go back to the Courts below will seriously prejudice the party affected and it should be the policy of this Court not to tread upon this prohibited ground and invite unsavory but – justifiable criticism. Is this Court to assess the evidence to find out F _ /\. whether there is a case for acquittal or conviction and convert itself f • into a trial Court? Or is this Court to order a retrial and examination of hundred witnesses to find out whether the case would end in acquittal •. -4 or conviction? Either of these conclusions in the case is outside the scope of Sect.ion 321. This can be done only if we rewriie Section 321. 24. Section 321 Cr.P.C. is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in Cfi!ninal cases. It is useful to remember that by the exercise of func- tions under Section 321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the H c (1987] 1 S.C.R. possible risk of a suit of malicious prosecution if the complaint is bereft ,…,__ of any basis. 25. Since Section 321 does not give any guideline regarding the grounds on which a withdrawal application can be made, such guide- lines have to be ascertained with reference to decided cases under this section as well as its predecessor Section 494. I do not propose to consider all the authorities cited before me for the reason that this Court had occasion to consider the question in all its aspects in some of its decisions. Suffice it to say that in the Judgments rendered by various High Courts, public· policy, interests of the administration, inexpediency to proceed with the prosecution for reasons of State and paucity of evidence were c:Onsidered good grounds for withdrawal in many cases and not good grounds for withdrawal in certain other cases 1 depending upon the peculiar facts and circumstances of the cases in those decisions. AIR 1932. Cal. 699 (Giribala Dasi v. Mader Gazi), AIR 1943 Sind 161 (Emperor v. Sital Das), AIR 1936 Cat. 356 (Marihar Sinha v. Emperor), AIR 1949 Patna 233 (The King v. Moule Bux and Ors.) AIR 1952 Raj. 42 and 1933 Privy Council 266 are some of the cases which were brought to our notice . Ram Naresh Pandey's case reported in 1957 SCR 279 is a land mark case which has laid down the law on the point with precision and ,._ certaintly. In this decision the functions of the Court and the Public Prosecutor have been correctly outlined. W~ile discussing the role of the Court, this Court observed: "His discretion in such matters has necessarily to be· exer- cised with reference, to such material as is by then available and it is not a prima fade judicial determination of any specific issue. The Magistrate's functions in these matters , .~\.- are not only supplementary, at a higher level, to those of, the executive but are intended to prevent abuse. Section 494 requiring the consent of the Court for withdrawal by the public prosecutor is more.in line with this scheme, than with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima fade determination of the triable issue. For instance the discharge that results therefrom need not always conform to the standard of "no prima fade case" under Sections 209(1) and 253(1) or of 'groundless- ness' .;oder Sections 209(2) and 253(2). This is not to say that a consent is to be lightly given on the application of the Iii ….. SHEO NANDAN PASWAN v. STATE OFBIHAR !Kli:ALID, J.l public prosecutor, without a careful and proper scrutiny of A the grounds on which the application for consent is made." This decision was approved by this Court in M.N. Sankaranarayanan Nair v. P.V. Balakrishnan & Ors., [ 1972) 2 SCR 599 as is seen at page 606: " ….. In the State of Bihar v. Ram Naresh Pandey {1957 SCR 279) it was pointed out by this Court that though the Section does not give any indication as to the ground on which the Public Presecutor may make an application on the consideration of which the Court is to grant its consent, it must none-the-less satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes ….. " 26. I will now briefly refer to some other cases cited to understand how Courts considered the scope of Section 32 l depending upon the c facts of each case. In the case of Bansi Lal v. Chandan Lal, AIR 1976 SC 370 this Court followed its earlier decision reported in [ 1972) 2 SCR 599 which in tum followed [ 1957) SCR 279 and declined consent when withdrawal was sought on the ground that the prosecution did not want to produce evidence and continue the criminal matter against the accused. The Sessions Judge gave his consent as it appeared to him "futile to refuse permission to the State to withdraw prosecution". This consent was set aside because reluctance to produce evidence was held to be not suffi- cient ground for withdrawal. In State of Orissa v. Chandrika Mohapatra & Ors., [ 1977) l SCR ·-;'\ 335 the application for withdrawal was made.on two grounds: (i) that it was considered inexpedient to proceed with the case; (ii) that the evidence colle.cted during investigation was meagre and no useful puqiose would be served by proceedings with the case against the accused. The Magistrate gave consent holding that compelling the State to go on with the prosecution would involve unnecessary expen- diture and waste of public time. This Court upheld the consent and ..-1 held that meagre evidence was a legitimate ground for withdrawal. . The following observation at page 338 is useful for our purpose on an important aspect. In that case, as in. this case, the Magistrate had clearly stated in his order that he was giving consent after going through the materials placed before him. This is how the Court sum- med up its finding: c (1987] 1 S.C.R. "It is difficult for us to understand how the High Court ""– could possibly obsenie in its order that the Magistrate had not perused the case diary when in terms the learned Magistrate has stated in his order that he had read the case diary and it was after reading it that he was of the opinion that the averment of the prosecution that the evidence was not sufficient was not ill-founded. Then again it is difficult to comprehend how the High Court could possibly say that the learned Magistrate accorded consent to the withdrawal of the prosecution on the ground that it was inexpedient to proceed with the case, when, in so many terms, the learned Magistrate rejected that ground and granted consent only on the second ground based on inadequacy of evidence .. " When the Magistrate states in his order that he has considered the 'f materials, it is not proper·for this Court not to accept that statement. The proper thing to do is to hold that the Magistrate gave consent on objective consideration of the relevant aspects of the case. It would be D acting against the mandate of Section 321 to find fault with the Magis- trate in such cases, unless the order discloses that the Magistrate has failed to consider whether the application is made in good faith, in the interest of public policy and justice and not to thwart or strifle the process of law. In Ba/want Singh v. State of Bihar, [1978] 1SCR604 this Court felt unhappy when the public prosecutor and the Magistrate had surren- dered their discretion, but still declined to grant leave under Article 136 and the withdrawal stood confirmed. In Subhash'Chander v. State, [ 1980] 2 SCR 44, this Court upheld F the consent given for withdrawal since a fresh investigation had revealed that the case was framed b_y the concerned Police Officers with ulterior motives. This Court observed that two relevant matters – · \" to be considered about the consent are: (1) whether the considerations are germane and (2) whether actual decision was taken by the public prosecutor or he only obeyed the orders dictated to him by others. In Rajendra Kumar Jain v. State, [1980] 3 SCR 982, this Court had to deal with two sets of cases-one relating to the Baroda Dyna- mite case and the other the Bhiwani Temple Demolition case. In that ca8e, this Court summarised eight propositions which are given in the judgment rendered by Tulzapurkar, J. in Sheonandan Paswan v. State H of Bihar & Ors., This Court observed that paucity of evidence is not SHEONANDANPASWAN v. STATEOFBIHAR [KHALID,J.I ~~ the only ground on which the Public Prosecutor may withdraw from A the prosecution, though that is a traditional ground for withdrawal. · Political purposes and political vendetta afford sufficient ground for withdrawal. 27. All the above decisions have followed the reasoning of Ram ·~ Naresh Pandey's case and. the principles 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 that 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 indi- c ~ cated above. It would be improper for this Court, keeping in view the scheme of Section 321, to embark upon a detailed enquiry into the facts and evidence of the case or to direct re-trial for that would be destructive of the object and intent of the Section. Now, I propose to quickly rush through the facts of the case to make the discussion complete. 28. When the matter was first heard by this Court, the docu- ments produced were profusely referred to by counsel on both sides. This consisted of also affidavits. filed by both sides. Baharul Islam, J, after discussing the questions cif law examined the factual aspect also. Referring to Shri 'Yenugopalan's arguments (the appellants' counsel …. then), on facts, the learned Judge observed as follows: "The learned Counsel fairly concedes that he does not take much reliance or .oral evidence but takes strong reliance on two pieces of documentary evidence, namely alleged crea- tion of forged documents by Dr .. Mishra and the confes- sional statement of Haidari implicating Dr. Mishra." On this concession, the learned Judge proceeded to consider the factual details pressed by the Counsel, but cautioned himself saying that consideration of the factual details should not be treated as a -I precedent because, according to him, the appellant should not be permited to raise them for the first time in an appeal by special leave under Article 136 of the Constitution. This is how the learned Judge spoke. "Before proceeding further, it is pertinent to mention that H c (1987] l S.C.R. in. his application before the Special Judge, the appellant did not find fault with any of the grounds of withdrawal in the application filed by the Public Prosecutor under Section 321. His only contention was that an attempt was being made by the Public Prosecutor to scuttle the case and that the Court should apply its independent mind before according consent to the withdrawal and that he should be heard in the matter. He made no mention of any forgery by antedating or by pasting of any earlier ord!"r and thereby making any attempt at shielding of any culprit. He thus, prevented the Special Judge and the High Court from giving any finding on alleged forgery on the allegations of pasting and ante-dating and thereby depriving us also from the benefits of such findings of the Courts below. This question of fact has now been sought to be brought to the notice of this Court during the course of argument by learned counsel of the appellant in this appeal. A question of fact that needs investigation cannot be allowed to be raised for the first time in an appeal by Special Leave under Article 136 of the Constitution." I respectfully agree with this approach. 29. We have a few documents on which reliance has been placed E by counsel on both sides in furtherance of their submission. Prior to March, 1977, there were only three important documents relating to the mis-deeds in Patna Urban Co-operative Bank: (a) Report of the Reserve Bank oflndia; (b) Audit report of the Special Divisional Co-operative Audit Officer; and (c) The report of the Estimates Committee of the Bihar ,~­ Legislative Assembly. In none of the three reports has the second respondent been named either as a conspirator in any offence or as an offender in relation to the affairs of the bank. These three documents, therefore, will not help the appellant to press a case against the second respondent before a Criminal Court. The accusation against the second respondent was that he was trying to shield N.K. Sinha. But it is useful to remember that 17 criminal cases had been filed against him and they are still pending. SHEONANDAN PASWANv. STATE OFBIHAR [KHALID,l.l Thus a one important piece of evidence that is pressed into service against the second respondent is the confessional statement of Haidari. There were two cases against Haidari, the. case on hand and another case. In this case he was granted pardon. He turned an approver and became a prosecution witness. He has been prosecuted in several other cases on the basis of orders passed by respondent No. 2 on 4'8.1976. His first confessional statement was on 4-11-1976. Then he did not implicate respondent No. 2. He was re-arrested 0022-1-1978. He made a second confessional statement on 24-1-1978. This time he implicated the second respondent for the first time for the alleged offence said to have been committed in the years 1973-75. What is the evidentiary value of these confessional statements implicating the second respondent. The second statement at best is the confessional statement of a co-accused which normally will not insP.ire confidence, in any Court. It is also a statement or an accomplice turned approver and hence of a very little evidentiary value. The question for consideration is whether a retrial should be ordered on this legally weak and infirm evidence, when this Court execises its jurisdiction while considering an order giving consent on an application under Section 321 of Criminal Procedure Code. I have no hesitation to reject such a request 1:9nsistent with the declared policy of this Court not to embark upon eviden.ce. c The second piece of evidence relates to the alleged forgery. The gravamen of the charge is that the second respondent as Chief Minister passed an order on 16-5-1975, in Hindi and wrote another order put- ting the date as 14-5-1975 and got it pasted over the earlier order. The allegation is that he changed the original Hindi digit 'six' into 'four'. This is not denied by the second respondent. The case put forward is that, by the above act of ante-dating by over-writing, the second res- pondent committed forgery and also an offence under SectioQ 5(l)(d) of the Prevention of Corruption Act. I do not propose to deal with this part of the case in detail for the simple reason that there is no shred of evidence in this case, that this file ever left the office of the Chief Minister nor that any one had secured any benefit by this over-writing. When Shri Rajendra Singh, one of the learned counsel asserted that G the file had not left the Chief Minister's office, that assertion was not met by any one on the appellant's side. There is no evidence as to when the date was changed and as to whether this change of date had extended any benefit on the third respondent, N.K. Sinha. That being so, this factual aspect also need not detain me. On these materials, one H fails to understand how an offence under Section 466 could be made out. Taking the entire evidence against the appellant it cannot be held that he has committed forgery under Section 463 or an offence under Section 466. Even though there is over-writing or pasting or interpola- tion or change of digits, there is no evidence at all to show that this paper went out of the Chief Minister's office or that any one was unduly favoured or that any one secur~d undue advantage by use of such over-writing. The appellant is admittedly a political rival of respondent No. 2. There is no love lost between them. It is at the instance of such a highly interested person that this Court is called upon to direct retrial of the C case, setting aside the consent given by the Special Judge. The second respondent is a leader of a political party. He was a rival to the Chief Minister who followed him after the 1977 at the time of institution of the case. In 1977, when the second respondent was the Chief Minister, a warrant of arrest was issued against Shri Karpoori Thakur for his D arrest and detention. It has been suggested that Shri Thakur had grudge against the second respondent. Viewed against this back- ground, in my view, it would not advance either the interests of justice or public interest, on the unsatisfactory factual details of the case, to accept the appeal and direc! retrial. 33. I have deliberately refrained from considering the factual details of the case because the details are available in the three Judg- ment rendered by the three Judges of this Court reported in [1983] 2 SCR 61. I have approached the whole case in a purely detached man- ner with reference to the facts of the case and the question of law involved. In this case this Court is called upon only to consider the ambit and scope of Section 321 Cr.P.C. and not the truth or otherwise of the allegations against the second respondent. Therefore, when we uphold the order of the High .<;:ourt and that of the Special Judge, we .)..,.- have only upheld the propriety of the orders tested against the scope of Section 321 Cr.P.C. The number of true cases that get crucified at the altar of the doctrine of benefit of doubt is legion. Since the scope of this appeal does not and cannot extend to the consideration of the merits of the case in depth, I have advisedly not embarked upon such an enquiry. I firmly believe that this Court.while deciding cases should consider only the legal issues involved and not the individuals involved. On a careful consideration of the facts and circumstances of the SHEONANDANPASWANv. STATEOFBIHAR[KHALID,J.] case, I hold that this appeal has to fail and has to be dismissed. Accord- ingly, I dismiss the appeal. v. Khalid]. ORDER S. NatarajanJ. In accordance with the opinion of the majority the appeal shall stand dismissed. S.R. Appeal dismissed. c