Karnataka High Court

Girish Bharadwaj vs State Of Karnataka on 29 May, 2025

                           -1-




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 29TH DAY OF MAY, 2025

                        PRESENT

       THE HON'BLE MR. N. V. ANJARIA, CHIEF JUSTICE
                           AND
          THE HON'BLE MR. JUSTICE K. V. ARAVIND

        WRIT PETITION No.3817 OF 2025 (GM-RES-PIL)

BETWEEN:

1.     GIRISH BHARADWAJ,
       SON OF DATTATREYA H. N.,
       RESIDING AT No.11,
       AGED ABOUT 32 YEARS,
       ASTHITHVA, RAILWAY PARALLEL ROAD,
       SHESHADRIPURAM,
       BENGALURU - 560020.
       MOB: 91 9448605923
       AADHAR No. 730494798728,
       E-MAIL [email protected].
                                             ...PETITIONER

(BY SRI VENKATESH P. DALWAI, ADVOCATE)

AND:

1.     STATE OF KARNATAKA,
       HOME DEPARTMENT,
       REGISTERED OFFICE AT
       ROOM No.222, II FLOOR,
       VIDHANA SOUDHA,
       AMBEDKAR VEEDHI,
       BENGALURU-560001,
       E-MAIL: [email protected],
       REPRESENTED BY ITS
       ADDITIONAL CHIEF SECRETARY

2.     DEPARTMENT OF PROSECUTIONS AND
       GOVERNMENT LITIGATION,
       OFFICE AT 6TH FLOOR,
                              -2-




     KHB COMPLEX, CAUVERY BHAVAN,
     KEMPEGOWDA ROAD,
     BENGALURU-560009,
     EMAIL: [email protected],
     REPRESENTED BY ITS
     DIRECTOR OF PROSECUTIONS.

3.   DEPARTMENT OF LAW,
     GROUND FLOOR,
     VIDHANA SOUDHA,
     BENGALURU-560001,
     REPRESENTED BY PRINCIPAL SECRETARY,
     EMAIL- [email protected].

4.   POLICE DEPARTMENT,
     OPPOSITE MARTHAS HOSPITAL,
     NRUPATHUNGA ROAD,
     BENGALURU-560001,
     REPRESENTED BY DIRECTOR GENERAL
     AND INSPECTOR GENERAL OF POLICE.
                                            ...RESPONDENTS

(BY SRI K. SHASHI KIRAN SHETTY, A.G., A/W
SMT. NILOUFER AKBAR, AGA AND
SRI D. MANTHAN, ADVOCATE FOR R1 TO R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUION OF INDIA PRAYING TO QUASH THE
GOVERNMENT OF KARNATAKA ORDER No.HD 129 MHB 2024,
BENGALURU DATED 15/10/2024 PASSED BY THE 1ST RESPONDENT
DIRECTING THE PUBLIC PROSECUTORS UNDER SECTION 321 OF
CODE OF CRIMINAL PROCEDURE, 1860 TO WITHDRAW THE
CASES FILED IN VARIOUS POLICE STATIONS IN THE STATE OF
KARNATAKA. A TRUE COPY OF THE GOVERNMENT ORDER No.HD
129 MHB 2024, BENGALURU DATED 15/10/2024 IS HEREIN
PRODUCED AT ANNEXURE-A (SUPRA).

     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
JUDGMENT WAS PRONOUNCED AS UNDER:
                                  -3-




CORAM:      HON'BLE THE CHIEF JUSTICE MR. JUSTICE
            N. V. ANJARIA
            and
            HON'BLE MR. JUSTICE K. V. ARAVIND

                          CAV JUDGMENT

(PER: HON'BLE THE CHIEF JUSTICE MR. JUSTICE N. V. ANJARIA

Heard learned advocate Mr. Venkatesh P. Dalwai for the

petitioner, learned Advocate General Mr. K. Shashi Kiran Shetty

along with learned Additional Government Advocate Smt. Niloufer

Akbar and learned advocate Mr. D. Manthan for respondent Nos.1

to 4.

2. The public interest petitioner herein is an advocate enrolled

before the Karnataka State Bar Council, who, by filing the present

public interest petition, seeks to raise an issue about the decision

on part of the respondent-State Government in directing and

thereby compelling the Public Prosecutors to withdraw the criminal

cases in breach of Section 321 of the Code of Criminal Procedure,

1973.

2.1 The petitioner has prayed for setting aside the Order No.HD

129 MHB 2024 of Government of Karnataka dated 15.10.2024

which was passed by the competent authority, Home Department

directing public prosecutors under Section 321 of the Code of

Criminal Procedure, 1973 to withdraw the cases filed in various

police stations in the State of Karnataka.

3. It is pleaded that the public interest petition is filed for the

benefit of the society at large especially in the interest of victims of

crime, the cases in respect of whom are sought to be withdrawn

illegally by the prosecution. It is stated that since such persons are

scattered in the State and are uninformed about the directions in

the impugned order for mass withdrawal of cases by the

prosecution, they are unable to have ready and easy access to the

court. The petitioner has stated that in that light and in view that a

serious public interest concern informs the subject matter, the

petition is filed.

3.1 It is the case of the petitioner inter alia that several criminal

cases have been registered with different police stations across the

State between the years 2008 to 2023. Out of these cases, it was

submitted, 43 cases are selected to be withdrawn from the

prosecution. It is the allegation that these 43 cases involve highly

influential personalities such as former ministers, Members of

Legislative Assemblies, Presidents and other persons holding the

high positions.

3.2 It is further stated that in Sudha Katwa vs. State of

Karnataka which was writ petition No.12755 of 2020, directions

were sought to follow mandate of Section 321, CrPC., wherein

interim order was passed on 13.07.2022 that the Government

Order dated 13.08.2020 by which the initiation of withdrawal of

cases from prosecution in 61 matters were directed would not

apply for withdrawal of cases against sitting or former members of

the Legislative Assembly or the Parliament as the case may be.

3.3 It is stated that now, despite the above interim order, about

43 new set of cases are proposed to be withdrawn from the

prosecution. It has stated that this has happened pursuant to the

recommendation by the Sub-Committee of the Cabinet meetings

held on different dates including on 15.09.2024. The petitioner has

given out that the criminal cases which are filed and sought to be

withdrawn are relating to serious offences, the details of which is

given in paragraphs 10.4 and 10.5 of the petition. It is averred that

the in the cases which are directed to be withdrawn, many, if not all

accused are influential persons.

3.4 The averments are specially made by the petitioner. Their

opinions were obtained from various departments including

respondent No.2-the Department of Prosecutions and Government

Litigations as well as from Police Department-Respondent No.4 as

to whether the cases could be categorized for withdrawal and could

be withdrawn. It is averred that these Departments were of the firm

opinion that the cases proposed for withdrawal are not fit for

withdrawal. It is stated that when the competent authorities and

the departments concerned have given opinion against the

withdrawal, the withdrawal is against public interest and actuated

by malice and extraneous considerations. It is alleged that rule of

law is given go by.

3.5 It is stated by the petitioner that on 11.10.2024, the Cabinet

disregarded the opinions from the other Departments as well as the

interim order passed in the aforementioned writ petition. It is

averred that without assigning justification, 43 cases are sought to

be withdrawn. The different categories of cases included for

withdrawal are enlisted for details at annexures-1, 2 and 3 on the

record of the petition. The petitioner has produced the copy of the

Cabinet Note No.C-578/2024 dated 06.10.2024. The list of the

cases is produced.

3.6 By filing memo, the petitioner has produced copies of (i) the

application filed under Section 321, CrPC, by the Public

Prosecutor, (ii) the opinion provided to the Government regarding

the withdrawal of prosecution, (iii) orders passed by the trial court

regarding withdrawal.

4. The statement of objections came to be filed by the State

raising various contentions in the rebuttal. A contention was also

raised that the petitioner has produced confidential government

documents including the cabinet note without explaining the source

from which such documents were procured. It is stated that the

documents are obtained illegally and produced to put up a case, on

that ground alone the petition deserves to be dismissed. It is

stated that the petitioner has misrepresented the cases.

4.1 It was harped that Government has role and the instruction

given by the Government in the impugned order could not be said

to have violative of Section 321 CrPC., it is contended that they are

the mattes of public policy for the Government and out of policy,

the cases are decided to be withdrawn and the impugned order

has been passed asking the Public Prosecutors to withdraw the

cases. It is denied that there is no independent application of mind

by the Public Prosecutor in withdrawal of cases.

4.2 It is claimed that 'Government claims crucial role in the

withdrawal of prosecution under Section 321 CrPC'. It is

contended that power is reserved for the executive government to

withdrawn the criminal cases on broader grounds of public policy,

maintenance of law and order, public peace and harmony, and

'social and political consideration'.

4.3 Learned Advocate General opposed the present public

interest petition and grant of prayers therein that confidential

documents are annexed without justification. It was contended that

false averments were made and the case put forth is illegal which

require dismissal of the petition. In this regard, he relied on the

decision of the Supreme Court in Dr. B. Singh Vs. Union of India

[2004 (3) SCC 363], in Kishore Samrite Vs. State of Uttar

Pradesh (2012 SCC ONLINE SC 884) and in Tehseen

Poonawalla Vs. Union of India (2018 SCC ONLINE SC 400) for

their respective paragraphs.

4.4 It was submitted that the government may seek and consider

opinions from different departments which are part of the

administrative procedure and that ultimate decision making powers

rests with the Cabinet. It was submitted that the Cabinet has

legitimately exercised its powers and executive discretion to either

accept or diverge from departmental recommendation on policy

basis. For this proposition, the decision of the Hon'ble Supreme

Court in Indian Administrative Service (SCS) Association UP

Vs. Union of India [1993 Supp (1) SCC 730] was relied on.

5. Having noticed the case and the controversy, the impugned

Government Order dated 15.10.2024 reads as under,

"Proceedings of Government of Karnataka

Subject: Withdrawal from prosecution of cases under Section 321 CrPC registered in various police stations of the State.

Proposal:

The government has scrutinized the proposals to withdraw from prosecution in 43 cases in the annexure, registered in various police stations of the state and on the recommendation of the cabinet sub-committee the cabinet has approved the withdrawal of the said cases. Accordingly, the following order.

Government Order No:HD 129 MHB 2024 Bengaluru, Dated: 15/10/2024.

The government has given its approval to withdraw from prosecution under Section 321 CrPC in a total of 43 cases mentioned in the annexure registered in various police stations of the state.

Director, Department of Prosecutions and Government Litigation is directed to take appropriate action as per rules to submit the necessary application to the competent court for withdrawal of 43 cases in annexure from the concerned court.

Further, this order is subject to compliance with the directions issued by the Hon'ble High Court in Writ

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Petition No:12755/2020, Interim Application No.:I.A.1/2022 in its daily order dated:13.07.2022.

By order of and in the name of the Governor of Karnataka Sd/-

S.Ambika 15/10/2024 Under Secretary to Government, Home Administration Department (Crimes)

Sd/-

ADGP (L&O)

For: Director General and Deputy Inspector General, Police Headquarters, Nrupatunga road Bangalore,

D.G. & I.G.P Has seen Please take further Action"

5.1 The above order is passed under Section 321 Cr.P.C. The

provision reads as under,

"Withdrawal from prosecution.- The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal,-

(a) If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:

Provided that where such offence--

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(i) was against any law relating to a matter to which the executive power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the prosecutor in charge of the case has not been appointed by the Central Government he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution."

5.2 A reading of the aforesaid provision would indicate that

Public Prosecutor or Assistant Public Prosecutor in-charge of a

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

judgment is pronounced, withdraw from the prosecution of any

person. The petitioner has produced the list on record along with

the memo dated 24.03.2025 giving details pertaining to the

prosecution cases registered in various police stations which are

done under Section 321 of the Cr.P.C. The cases are sought to be

withdrawn pursuant to the interim order. It indicates withdrawal

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which is almost enmass against the accused involved in the

serious offences.

5.3 The submission of the petitioner herein is that the discretion

to withdraw the case from prosecution lies with the Public

Prosecutor to be examined on case to case basis independently

and that the withdrawal can be effected with consent of the Court.

It was submitted that it is the opinion of the Public Prosecutor or

Assistant Public Prosecutor, as the case may be, would weigh high

in justifying the withdrawal of the case from prosecution.

5.4 Noticeable the case of the petitioner is that the Department

of Prosecution and the Police Department were consulted, but they

opined that the cases are not fit for withdrawal, stands fortified and

substantiated by the contents of the Cabinet Note-file No.SD 129

MHB 2024 which is produced on record. The cabinet note which is

on record of the petition is reproduced hereinbelow,

"File No: HD 129 MHB 2024 2024 SECRET

CABINET NOTE

Subject No: C: 5782024

Department: Home Department Subject: Withdrawal of criminal cases registered in various Polic Stations in the State.

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1. PROPOSAL:

Based upon representations received from various Public representatives and Public for withdrawal of criminal cases registered in various Police Stations and undergoing trial in various courts in the State, the requests are considered by Home Department and placed, for before the Cabinet for approval. The opinion of the Director General and Inspector General of Police, Director of Prosecutions & Government Litigations and the Law Department are taken in every case separately. There after the cases are placed before the Cabinet Sub-Committee constituted by Government for consideration of such cases for withdrawal from prosecution under Section 321 of Cr.P.C. The cases which are decided as suitable in the Cabinet Sub-committee are placed before the Cabinet for decision held on 26.09.2024(C.562/2024).

The following decisión has been taken by the Cabinet (C.562/2024) held on 26.09.2024.

"ಚ ೆ ಯ ನಂತರ, ಪ ಾವ ೆಯನು ಇ ೊ               ಪ   ೕ
ಸ ವ ಸಂಪ!ಟ#ೆ$ ಮಂ&ಸುವಂ'ೆ ಆಡ*ತ ಇ+ಾ,ೆ-ೆ ಸೂ            .
ಪ ಾವ ೆಯನು ಮುಂದೂಡ+ಾ0ತು"

2. JUSTIFICATION:

As per the Cabinet (C.562/2024) decision which was held on 26.09.2024, the cases placed before the Cabinet which are recommended by the Cabinet Sub-Committee in the meetings held on:

14.09.2023, 28.12.2023 and 05.09.2024 for withdrawal from prosecution has been reviewed.

Withdrawal from prosecution of 43 cases mentioned in Annexure-01 and 15 cases mentioned in Annexure-02 are placed before the Cabinet for its consideration.

Further, 02 cases in Annexure-03 are recommended for Cabinet approval to take permission from the Hon'ble High Court to withdraw them cases as per the Hon'ble Supreme Court order in Writ Petition No:699/2016 Ashwini

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Kumar Upadhyay Vs Union of India and others dated: 10.08.2021 and Hon'ble High Court order in Writ Petition No: 12755/2020 IA.1/2022 dated:

13.07.2021.

3. FINANCIAL IMPLICATIONS:

No financial implications.

4. INTER-MINISTERIAL CONSULTATIONS:

The Police Department, Department of Prosecution and Government Litigations and Law Department were consulted and their opinions obtained. They are of the opinion that these cases are not fit for withdrawal.

5. RESPONSE OF THE ADMINISTRATION DEPARTMENT TO THE OPINION GIVEN BY OTHER DEPARTMENTS:

Regarding the withdrawal of the total 60 cases mentioned in Annexure- 01, in Annexure-02, in Annexure-03, opinion of the Police Department, Prosecution Department and Law Department has been obtained and presented before the Cabinet Sub-Committee held on 14.09.2023, 28.12.2023 and 05.09.2024. As per the recommendation of the said sub-committee the same has been submitted before the Cabinet for its decision.

6. APPROVAL OF THE MINISTER-IN-CHARGE:

Has been obtained.

7. APPROVAL PARAGRAPH:

The following proposal is placed before the Cabinet as per Schedule 1, Serial No. 30 of the Karnataka Government (Transaction of Business) Rules 1977

I. "To take suitable decision for withdrawal of 43 cases mentioned in Annexure-01 from prosecution under Section 321 of Cr.P.C., as recommended by Cabinet Sub-Committee in

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its meeting held on 14.09.2023, 28.12.2023 and 05.09.2024".

II. To take suitable decision for withdrawal of 15 cases mentioned in Annexure-02 from prosecution under Section 321 of Cr.P.C., as recommended by Cabinet Sub-Committee in its meeting held on 14.09.2023, 28.12.2023 and 05.09.2024".

III. "withdrawal of 02 cases in Annexure-03 are submitted for approval to take permission from the Hon'ble High Court, as recommended by Cabinet Sub-Committee in its meeting dated 05.09.2024".

Sd/-

(Ravi S) Principal Secretary to Government (PCAS) Home Department."

5.4.1 As could be seen from paragraph 4 titled as Inter Ministerial

Consultations, it is recorded in terms that, the Police Department,

Department of Prosecution and Government Litigations and Law

Department were consulted and their opinions obtained. They are

of the opinion that these cases are not fit for withdrawal.

5.5 A ground is raised as preliminary objection that the Cabinet

Note was a confidential document and the petitioner procured it

somehow and anyhow, which could not be but by illegal means,

therefore, it could not have been produced before the court.

Pausing in this regard, the law on this aspect may be looked at.

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5.5.1 The Supreme Court has considered the issue of the kind

and nature about the placing of the document on record and about

its procurement by the litigant. In Umesh Kumar Vs. State of AP

reported in 2013 (10) 591 SCC. The Supreme Court observed that

even though the complaint was bogus, however the sale deeds

annexed along with the same illegally collected by someone were

not fabricated documents. It is further observed,

"It is a settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation. This court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law. (Vide: Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968 SC 147; Magraj Patodia v. R.K. Birla & Ors., 1970 (2) SCC 888; R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Pooran Mal v. Director of Inspection, Income-Tax, New Delhi & Ors., AIR 1974 SC 348; and State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC

600). (para 35)

5.5.2 Thus, disposing the above ground, it is to be observed that

the respondent has not disputed the genesis or authenticity as well

as genuineness of the Cabinet Note, nor the contents thereof are

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disputed. It is also difficult to pursue that the Cabinet Note is of the

kind and nature in respect of which confidentiality could be claimed

to sustain the objection that the petitioner could not have copy of

the said document. The copy of the Cabinet Note is used by the

petitioner in furtherance of his plea which is in the public interest

petition. Therefore, the documents in question which are Cabinet

Note and the appended annexures could be looked into.

5.6 A regards the object and operation of Section 321 Cr.P.C.

came to be highlighted by the Supreme Court in Sheo Nandan

Paswan vs. State of Bihar [(1983) 1 SCC 438], in the following

words,

"72. Section 321 of the code enables the Public Prosecutor to withdraw from the prosecution with the consent of the Court. Before on application made U/S 321 Cr.P.C. the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence and secondly that the Court, before which the case is pending cannot give its consent to withdraw without itself applying mind to the fact of the case."

5.7 In Balwant Singh and others vs. State of Bihar [(1997) 4

SCC 448], the Apex Court in turn stated that the withdrawal of the

prosecution under Section 321 Cr.PC is a matter within the sole

discretion of the Public Prosecutor. It is categorically stated that

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Public Prosecutor should independently form his opinion in the

interest of administration of justice. It was ruled that the District

Magistrate or Superintendent of Police cannot order the Prosecutor

for withdrawal. It is stated in terms that Magistrate also should not

yield to executive pressures.

5.7.1 Following are the precise observations,

"The statutory responsibility for deciding upon withdrawal squarely vests on the public prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The Criminal Procedure Code is the only master of the public prosecutor and he has to guide himself with reference to Criminal Procedure Code only. So guided, the consideration which must weigh with him is, whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. As we have already explained, public justice may be a much wider conception than the justice in a particular case". (para 2)

5.7.2 In that case, the Prosecutor was ordered for withdrawal, and

the Supreme Court stated,

"Here, the Public Prosecutor is ordered to move for withdrawal. This is not proper for a District Magistrate to do. Indeed, it is not proper to have the public prosecutor ordered about. It is entirely within the discretion of the public prosecutor. It may be open to the District Magistrate to bring to the notice of the Public Prosecutor materials and suggest to him to consider whether the prosecution should be withdrawn or not. He cannot command where he can only commend. In this case, the facts clearly bring

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out that the Public Prosecutor obeyed and not acted, and therefore the statutory responsibility vested in him was not properly exercised. If he comes to the conclusion, on the materials passed on to him that the case deserves to be withdrawn, he may initiate action in that behalf."

(para 2)

5.7.3 The Court proceeded further in the following strong words,

"What is curious is that the Public Prosecutor says that the Court encores that public policy is not involved in this case for the administration of justice. That must be a reason why the law must run its course. For justice ordinarily demands that every case must reach its destination, not interrupted en route. If some policy consideration bearing on the administration of justice justifies withdrawal, the Court may accord permission; not if no public policy bearing on the administration of justice is involved. We think that surrender of discretion by the Public Prosecutor and the Magistrate are unfortunate. The Court has to be vigilant when a case has been pending before it and not succumb to executive suggestion made in the form of application for withdrawal with a bunch of papers tacked on. Moreover, the State should not stultify the Court by first stating that there is a true case to be tried and then make a volte face to the effect that on a second investigation the case has been discovered to be false."

(para 2)

6. The Government Order in its nature impinges upon the

discretion to be exercised by the Public Prosecutors when it comes

to the withdrawal of a case or cases under Section 321 Cr.P.C. It

takes away the room for the Public Prosecutor to apply his mind.

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The withdrawal of prosecution under Section 321 Cr.P.C. is not

only to be backed by application of mind by the Public Prosecutor,

but it has to be done on case to case basis depending upon the

facts and circumstances of each case, which could include the

gravity of offence and other host of considerations.

6.1 The executive government cannot issue a fiat in this regard.

It cannot wield pressure on the Public Prosecutor's independence

and independent judgment about withdrawal of the cases from the

prosecution. This province is that of Public Prosecutor and the

Court. Any violation on this core is a violation of rule of law itself.

If there is a political consideration in withdrawal of cases under

Section 321 Cr.P.C. is the worst kind of abuse of powers. The

larger public interest suffers.

6.2 The Government Order and the decision reflected therein

would smack political nature of exercise of powers. The

respondent itself has claimed that the Ministers and officials were

part of the meeting which ended up with the impugned order

passed by the government. It could be contended therefore that it

was a politically taken decision. The list of cases is produced. It

was highlighted that cases in column No.3 indicated as to who

initiated the request for withdrawal of the cases. Sl. No.6 was a

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case where a request was initiated by one organization called

Anjuman-E- Islam and also by the Deputy Chief Minister, it was

contended.

6.3 The respondent-State has tried to justify the impugned order

by stating in the statement of objections that it is only in the nature

of instructions given and does not take away the application of

mind. The Government Order, when read, gives the impression

otherwise. It does intrude in the discretionary realm of the Public

Prosecutor asking them to act to withdraw the cases. Any cannon

of public interest and the criteria of rule of law would not permit

such a course. Powers under Section 321 should not be allowed

to be exercised in such fashion.

6.4 In Subash Chandra vs. Chandigarh Administration

[(1980) 2 SCC 155], the Hon'ble Supreme Court observed,

"The jurisprudence of genuflexion is alien to our system and the law expects every repository of power to do his duty by the Constitution and the law, regardless of commands, directives, threats and temptations. The Code is the master for the criminal process. Any authority who coerces or orders or pressurises a functionary like a Public Prosecutor, in the exclusive province of his discretionary power, violates the rule of law and any Public Prosecutor who bends before such command betrays the authority of his office. May be, government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on

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grounds of policy or reasons of public interest relevant to law and justice in their larger connotation and request the Public Prosecutor to consider whether the case or cases may not be withdrawn. Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and the responsible position of government which, in the last analysis, has to maintain public order and promote public justice. But the decision to withdraw must be his."."

(para 12)

6.4.1 It was succinctly stated thus,

"The functionary clothed by the Code with the power to withdraw from the prosecution is the Public Prosecutor. The Public Prosecutor is not the executive, nor a flunkey of political power. Invested by the statute with a discretion to withdraw or not to withdraw, it is for him to apply an independent mind and exercise his discretion. In doing so, he acts as a limb of the judicative process, not as an extension of the executive."

(para 9)

6.5 When the Government Order complained of in this public

interest petition takes away the area of independent judgment by

the public prosecutor, whittles down his discretion in the matter of

withdrawal of cases to be acted upon under Section 321 and

prevents directly or indirectly, and to the extent whatever, the Order

could hardly sustain. If allowed to be sustained, it would work

contrary to the object and spirit of Section 321 Cr.P.C., discounting

rule of law and working in its ultimate analysis, against public

interest.

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7. For all the above reasons, the present petition is allowed.