Sheonandan Paswan Vs. State of Bihar & Ors [1982] INSC 100 (16 December 1982)

TULZAPURKAR, V.D.

ISLAM, BAHARUL (J) MISRA, R.B. (J)

CITATION: 1983 AIR 194 1983 SCR (2) 61 1983 SCC (1) 438 1982 SCALE (2)1241

CITATOR INFO :

APL 1987 SC 877 (38,52,62,83) RF 1992 SC 604 (140)

ACT:

A. Nolles Prosequi-Nature and scope of power under section 321 of the Code of Criminal Procedure , 1973-In the discharge of his duties, whether a public prosecutor, who is always instructed by the Government can be said to be free and independent.

B. Special Public Prosecutor, appointment of- Appointment of Special Public Prosecutor to conduct the case in question without cancelling the appointment of an earlier appointee-Competency of the latter appointee applying for withdrawal of the case, Code of Criminal Procedure, 1973, Sections 24 (8) and 321.

C. Code of Criminal Procedure, 1973-Section 321- Grounds for withdrawal from prosecution-Whether the grounds like (a) implication of the accused as a result of personal and political vendetta, (b) inexpediency of prosecution for reasons of State and Public policy, and (c) adverse effects which the continuance of prosecution will bring on public interest etc. would be relevant for withdrawing from the prosecution.

D. Nolles Prosequi-Accused charged with offences of criminal misconduct and forgery-Permission to withdraw on an application made on the ground of lack of prospect of successful prosecution in the light of the evidence on record-High Court confirming the said order-Interference by the Supreme Court under Article 136.

HEADNOTE:

After obtaining the requisite sanction from the Governor on 19th February, 1979, a chargesheet in Vigilance P.S. case no. 9 (2) 78 was filed by the State of Bihar against Respondent No 2 (Dr. Jagannath Mishra), Respondent no. 3 (Nawal Kishore Sinha), Respondent no. 4 (Jiwanand Jha) and three others (K.P. Gupta since deceased, M.A. Haidari and A.K. Singh who later became approvers) for offences under Sections 420/466/471/109/120-B I.P.C. and under Section 5 (1) (a), 5 (1) (b) and 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947. Inter alia, the gravamen of the charge against the respondent no. 2, was that all times material he was either a Minister or the Chief Minister of Bihar and in that capacity by corrupt and or illegal means or by otherwise abusing his position as a public servant, he, in conspiracy with the other accused and with a view to protect Nawal Kishore Sinha, in particular, sought to subvert criminal prosecution and surcharge 62 proceedings against Nawal Kishore Sinha and others, and either obtained for himself or conferred on them pecuniary advantage to the detriment of Patna Urban Co-operative Bank, its members, depositors and creditors and thereby committed the offence of criminal misconduct under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 and in that process committed the other offences specified in the charge-sheet, including the offences of forgery under section 466 I.P.C. Cognizance of the case was taken on 21st November, 1979 by the learned Chief Judicial Magistrate-cum-Special Judge (Vigilance)Patna, who issued process against the accused, but before the trial commenced the State Government, at the instance of Respondent no. 2, who in the meantime had come to power and had become the Chief Minister; took a decision in February 1981 to withdraw from the prosecution for reasons of State and Public Policy.

Though initially Shri Awadesh Kumar Dutt, Senior Advocate Patna High Court, had been appointed as a Special Public Prosecutor by the previous Government for conducting the case, the State Government (now headed by Respondent no. 2) without cancelling Shri Dutt's appointment as Special Public Prosecutor, on 24th February 1981 constituted a fresh panel of lawyers for conducting cases pertaining to Vigilance Department. Sri Lalan Prasad Sinha, one of the Advocates so appointed on the fresh panel was allotted the said case and was informed of the Government's said decision and on 26th March, 1981, he was further requested to take steps for withdrawal of the case after he had considered the matter and satisfied himself about it. On 17th June, 1981, Sri Lalan Prasad Sinha made an application under Section 321 Crl. P.C. 1973 to the Special Judge seeking permission to withdraw from the prosecution of Respondent Nos. 2, 3 and 4 in the case on four grounds: namely, (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 continuance of the prosecution will bring on public interest in the light of the changed situation.

The learned Special Judge by his order dated 20th June 1981 granted the permission. A Criminal Revision No. 874/81 preferred by the appellant against the said order was dismissed in limine by the High Court on 14th September, 1981. Hence the approval by Special Leave of the Court.

Allowing the Appeal, the Court

HELD: (i) Lalan Prasad Sinha was the competent officer entitled to apply for the withdrawal from the prosecution, there being no infirmity in his appointment. [155 B-C] (ii) He did apply his mind and came to his own conclusions before making the application for the withdrawal from the prosecution. [149 G] Per majority (Baharul Islam and Misra JJ, Tulzapurkar J dissenting) The executive function of the Public Prosecutor and or the supervisory function of the trial court in granting its consent to the withdrawal have been properly performed and not vitiated by reason of any illegality. [143E-158A] 63 Per Tulzapurkar J (Concurring with Baharul Islam and Misra JJ.) 1:1 Sri Lalan Prasad Sinha was the competent officer entitled to apply for the withdrawal from the prosecution.

[84 E. 85 F] 2:2 It is true that the appointment of the former prosecutor, in the instant case, made by the previous government to conduct the case in question had not been cancelled, though in fitness of things it should have been cancelled but that did not prevent the new government to make a fresh appointment of a Public Prosecutor and to put him in charge of the case. Appointments of Public Prosecutors generally fall under Section 24 (3) of the Code of Criminal Procedure, but when the State Government appoints public prosecutors for the purpose of any case or class of cases, the appointees became Special Public Prosecutors under Section 24 (8) of the Code. [85 B-D] 1:2 Further it cannot be disputed that the former prosecutor not having appeared before the Special Judge at any stage of the hearing was never incharge of the case not in the actual conduct of the case; on the other hand, after the allotment of this case to him, the latter was incharge of the case and was actually conducting the case he having admittedly appeared in the case at least on four occasions before the Special Judge. [85 D-F] State of Punjab v. Surjeet Singh and Anr., [1967] 2 S.C.R. 347; M.N.S. Nair v. P.V. Balakrishnan and Ors [1972] 2 S.C.R. 599, followed.

1:3 It is true that, in the instant case, the State Government had taken its own decision to withdraw from the prosecution in the case against the accused persons and it is also true that the said decision was communicated to the Public Prosecutor, but if the letters communicating the decision are carefully scrutinised, it will be clear that the State Government merely suggested him (which it was entitled to do) to withdraw from the prosecution but at the same time asked him to consider the matter on his own and after satisfying himself about it make the necessary application which he did, and there is no material to doubt the recital that is found in the application that he had himself considered relevant materials connected with the case and had come to his own conclusions in that behalf. [86 D-F]

2. From the Supreme Court's enunciation of the legal position governing the proper exercise of the power contained in Section 321, three or four things became clear :

(i) Though withdrawal from prosecution is an executive function of the Public Prosecutor for which statutory discretion is vested in him, the discretion is neither absolute nor unreviewable but it is subject to the court's supervisory function. In fact being an executive function it would be subject to a judicial review on certain limited grounds like any other executive action; the authority with whom the discretion is vested 'must genuinely address itself to the matter before it, must not act under the dictates of another body, must not do what it has been forbidden to do, must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or the spirit of the legislation that gives it power to act arbitrarily or capriciously." [81 E-H, 82A] 64 (ii) Since the trial court's supervisory function of either granting or refusing to grant the permission is a judicial function the same is liable to correction by the High Court under its revisional powers both under the old and present Code of Criminal Procedure, and naturally the Supreme Court would have at least coextensive jurisdiction with the High Court in an appeal preferred to it by special leave or upon a certificate by the High Court. [82 B-D] (iii) No dichotomy as such between political offences or the like on the one hand and common law crimes on the other could be said to have been made by the Supreme Court for purposes of Section 321, for, even in what are called political offences or the like, committing common law crimes, is implicit, for the withdrawal from the prosecution of which the power under Section 321 has to be resorted to.

But the decisions do lay down that when common law crimes are motivated by political ambitions or considerations or they are committed during or are followed by mass agitations, communal frenzies, regional disputes, industrial conflicts, student unrest or like situations involving emotive issues giving rise to an atmosphere surcharged with violence, the broader cause of public justice, public order and peace may outweigh the public interest of administering criminal justice in a particular litigation and withdrawal from the prosecution of that litigation would become necessary, a certainty of conviction notwithstanding, and persistence in the prosecution in the name of vindicating the law may prove counter-productive. In other words, in case of such conflict between the two types of public interests, the narrower public interest should yield to the broader public interest, and, therefore, an onerous duty is cast upon the court to weigh and decide which public interest should prevail in each case while granting or refusing to grant its consent to the withdrawal from the prosecution. For, it is not invariably that whenever crime is politically motivated or is committed in or is followed by any explosive situation involving emotive issue that the prosecution must be withdrawn. In other words, in each case of such conflict the court has to weigh and decide judiciously. But it is obvious that unless the crimes in question are per se political offences like sedition or are motivated by political considerations or are committed during or are followed by mass agitations, communal frenzies, regional disputes, industrial conflicts, student unrest or the like situations involving emotive issues giving rise to an atmosphere surcharged with violence, no question of serving any broader cause of public justice, public order or peace would arise and in the absence thereof the public interest of administering criminal justice in a given case cannot be permitted to be sacrificed, particularly when a highly placed person is allegedly involved in the crime, as otherwise the common man's faith in the rule of law and democratic values would be sheltered.

[82 D-H, 83 A-D] (iv) When paucity of evidence or lack of prospect of successful prosecution is the ground for withdrawal the court has not merely the power but a duty to examine the material on record without which the validity and propriety of such ground cannot be determined. [83 D-E] State of Bihar v. Ram Naresh Pandey, [1957] SCR 279;

State of Orissa v. Chandrika Mohopatra and Ors., [1977] 1 SCR 335; Balwant Singh and Ors. v. State of Bihar, [1978] 1 SCR 604; R.K. Jain v. State, [1980] 3 SCR 982; M.N.S. Nair v. P.V. Balakrishnan and Ors, [1972] 2 S.CR 599, referred to.

65 3:1 In the light of the legal principles, it would be clear, that this Vigilance P.S. case 9 (2) (78) being an ordinary criminal case involving the commission of common law crimes of bribery and forgery in ordinary normal circumstances with self-aggrandisement or favouritism as the motivating forces, grounds (b), (c) and (d) stated in the application for withdrawal were irrelevant and extraneous to the issue of withdrawal and since admittedly these were the considerations which unquestionably influenced the decision of the Public Prosecutor in seeking the withdrawal as well as the decision of the trial court to grant the permission, the impugned withdrawal of Vigilance P.S. case 9 (2) 78 from the prosecution would stand vitiated in law. [87 H, 88 A, G- H, 89 A-B] 3:2 Admittedly, the offences of bribery (criminal misconduct) and forgery which are said to have been committed by Respondent No. 2 in conspiracy with the other accused are ordinary common law crimes and were not committed during nor were they followed by any mass agitation or communal frenzy or regional dispute or industrial conflict or student unrest or the like explosive situation involving any emotive issue giving rise to any surcharged atmosphere of violence; further it cannot be disputed that these are not per se political offences nor were they committed out of any political motivation whatsoever; in fact the motivating force behind them was merely to give protection to and shield Sri Nawal Kishore Sinha, a close friend, from criminal as well as civil liability-a favouritism amounting to criminal misconduct allegedly indulged in by Respondent No. 2 by abusing his position as a Minister or Chief Minister of Bihar. If therefore, the offences did not partake of any political character nor were committed in nor followed by any explosive situation involving emotive issue giving rise to any surcharged atmosphere of violence, no question serving any broader cause of public justice, public order or peace could arise and in absence thereof the public interest of administering criminal justice in this particular case could not be permitted to be sacrificed. [88 C-F] 3:3. No results of any election, howsoever sweeping, can be construed as the people's mandate to condone or compound the common law crimes allegedly committed by those who have been returned to power; in fact such interpretation of the mandate would be contrary to all democratic canons.

Success at hustings is no licence to sweep all dirt under the carpet and enjoy the fruits nonchalantly. Therefore, the plea of change in the situation brought about by the elections putting Respondent No. 2 in power as Chief Minister and prosecution against the head of State would have had adverse effects on public interest including public order and peace is misplaced. At the worst, all that can happen is that Respondent No. 2 will have to step down and nothing more. Any fear of destabilisation of the Government is entirely misplaced. On the other hand, withdrawal from the prosecution of such offences would interfere with the normal course of administration of criminal justice and since Respondent No. 2 is placed in a high position, the same is bound to affect the common man's faith in the rule of law and administration of justice. Further if the proof of the offences said to have been committed by Respondent No. 2, in conspiracy with the other accused based on undisputed and genuine documentary evidence, no question of political and personal vendetta or unfair and overzealous investigation would arise. [89 D-H, 90 A] 66 3:4 The documentary evidence, comprising the Audit Reports, the relevant notings in the concerned file and the two orders of the Respondent No. 2, the genuineness of which cannot be doubted, clearly makes out a prima facie case against Respondent No. 2 sufficient to put him on trial for the offence of criminal misconduct under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947. Similar is the incidental offence of forgery under Section 466 I.P.C. for antedating the second order. The question of "paucity of evidence", therefore, does not arise. The trial court failed, therefore, in its duty to examine this before permitting the withdrawal from prosecution. [101 C-E, H, 102 A] 3:5 Yet another legal infirmity attaching to the executive function of the Public Prosecutor as well as the supervisory judicial function of the trial court which would vitiate the final order is that while the charge-sheet is under sub-clauses (a), (b) and (d) of Section 5 (1) read with Section 5 (2) of the Prevention of Corruption Act along with other offences under the Penal Code, in the application for withdrawal and during the submission made before the Court as well as in the order of the trial Court permitting the withdrawal the reference is to Section 5 (1) (c) and not 5 (1) (d). Obviously the permission granted must be regarded as having been given in respect of an offence with which Respondent No. 2 had not been charged, completely ignoring the offence under Section 5 (1) (d) with which he had been mainly charged. This state of affairs brings out a clear and glaring non-application of mind both on the part of the Public Prosecutor and also the learned special Judge with the issue of withdrawal; in the High Court also there is no improvement in the situation. [103 B, D, E, F, H, 104 A-C] Per Baharul Islam, J.

1:1 In view of the definition of "Public Prosecutor" in Section 2 of the Code of Criminal Procedure read with Section 24 (8) of the Code and in the light of the decision of the Supreme Court in State of Punjab v. Surjeet Singh [1967] 2. SCR 347, there cannot be any doubt, that Sri L.P.

Sinha was a Public Prosecutor validity appointed under sub- section (8) of Section 24 of the Code. [115 D-E] State of Punjab v. Surjeet Singh, [1967] 2 SCR, 347, followed.

1:2 The appointment of Shri L.P. Sinha cannot be collaterally challenged particularly in an application under Article 136 of the Constitution. Shri A.K. Dutta, the earlier appointee had at no point of time came forward to make any grievance at any stage of the case, either at the appointment of Sri L.P. Sinha as Special Public Prosecutor or in the latter's conduct of the case; nor Sri L.P. Sinha whose appointment and right to make an application under Section 321 of the Code have been challenged is before the Supreme Court. [115 E-G] 1:3 The appointment of the latter prosecutor without the termination of the appointment of the earlier one might at best be irregular or improper, but cannot said to be legally invalid. The doctrine of de facto jurisdiction which has been recognised in India will operate in this case. [115 G-H, 116A] 67 Gokaraju Rangaraju v. State of Andhra Pradesh, [1981] 3 S.C.R. 474, followed.

Newzealand and Norton v. Shelly Country p. 1886; 118 US 425 quoted with approval.

1:4 Shri L.P. Sinha was both de jure and de facto Public Prosecutor in the case. If he fulfilled the two conditions as required by Section 321, namely, (i) that he was the Public Prosecutor; and (ii) was incharge of the case, he was competent to supply for withdrawal of the case, even if he were appointed for that purpose only. [118 H, 119 A-C] 2:1 Section 321 enables the Public Prosecutor or Assistant Public Prosecutor incharge of a case to withdraw from the prosecution with the consent of the court. Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any out side influence. But it cannot be said that a Public Prosecutor's action will be illegal if he receives any communication or instruction from the Government. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer.

He is an appointee of the Government, Central or State.

appointed conducting in Court any prosecution or proceedings on behalf of the Government. A public prosecutor cannot act without instructions of the Government; a public prosecutor cannot conduct a case absolutely on his own, or contrary to the instructions of his client, namely, the Government.

Section 321 does not lay any bar on the public prosecutor to receive any instruction from the Government before he files an application under that Section. If the public prosecutor receives such instructions, he cannot be said to act under extraneous influence. On the contrary, the public prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government. [119 D-H, 120 B-C] 2:2 A mere perusal of the application made by the public prosecutor abundantly shows that he did apply his mind to the facts of the case; he perused the case Diary and the relevant materials connected with the case", before he made the application. He did not blindly quote from the Government letter which contained only one ground, namely, "inexpediency of prosecution for reasons of state and public policy". A comparison of the contents of this letter with the contents of the application under Section 321 completely negatives the contention that he did not himself apply his mind independently to the fact of the case and that he blindly acted on extraneous considerations. [112 F-H] 3:1 The object of Section 321 appears to be to reserve power to the Executive Government to withdraw any criminal case on larger grounds of public policy, such as, inexpediency of prosecutions for reasons of State; broader public interest like maintenance of law and order;

maintenance of public peace and harmony, social, economic and political; changed social and political situation;

avoidance of destabilisation of a State Government and the like. And such powers have been rightly reserved for the Government; for, who but the Government is in the know of such conditions and situations prevailing in a State or in the country. The Court is not in a position to know such situations.

[126 D-F] 68 3:2 The withdrawal from the prosecution is an executive function of the public prosecutor and the ultimate decision to withdraw from the prosecution is his; the Government may only suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so; not merely inadequacy of evidence, but other relevant grounds such as to further the broad ends of public justice, economic and political; public order and peace are valid grounds for withdrawal. The exercise of the power to accord or withdraw consent by the court is discretionary. Of course, it has to exercise the discretion judicially. The exercise of the power of the Court is judicial to the extent that the Court in according or refusing consent has to see:

(i) whether the grounds of withdrawal are valid; and (ii) whether the application is bonafide and not collusive. It may be remembered that an order passed by the Court under Section 321 is not appealable. [128 D-G] 3:3 A mere perusal of the impugned order of the Special Judge granting permission to withdraw from the prosecution of accused persons, in the case in question shows that he has applied his mind to the relevant law. What the court has to do under section 321 is to see whether the application discloses valid grounds of withdrawal-valid as judicially laid down by the Supreme Court.

[128 G-H] 3:4 A criminal proceeding with a prima facie case may also be with drawn. Besides, the normal practice of the Supreme Court in a criminal appeal by Special Leave under Art. 136 of the Constitution directed against an order of conviction or acquittal is that it does not peruse the evidence on record and appreciate it to find whether findings of facts recorded by the courts below are correct or erroneous, far less does it peruse the police diary to see whether adequate materials were collected by the investigating agency. It accepts the findings of the Courts below unless it is shown that the findings are the results of a wrong application of the principles of law and that the impugned order has resulted in grave miscarriage of justice.

[129 A-C] R.K. Jain v. The State, [1980] 3 S.C.R. 982, followed.

3:5 An order under Section 321 of the Code does not have the same status as an order of conviction or acquittal recorded by a Trial Court or appellate court in a criminal prosecution, in as much as the former has not been made appealable. An order under Section 321 of the Code has a narrower scope. As an order under Section 321 of the Code is judicial, what the trial court is expected to do is to give reasons for according or refusing its consent to the withdrawal. The duty of the Court is to see that the grounds of withdrawal are legally valid and the application made by the public prosecutor is bonafide and not collusive. In revision of an order under Section 321 of the Code, the duty of the High Court is to see that the consideration by the trial court of the application under Section 321 was not misdirected and that the grounds of withdrawal are legally valid. In this case the trial court elaborately considered the grounds of withdrawal and found them to be valid and accordingly accorded its consent for withdrawal. In revision the High Court affirmed the findings of the trial court. In this appeal by special leave, therefore, there is no justification to disturb the findings of the courts below and peruse the statements of witnesses recorded or other materials collected by the investigating officers during the course of investigation. [129 C-H] 69 3:6 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. 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. There was no mention of any forgery by antedating or by pasting of any earlier order and thereby making any attempt at shielding of any culprit. He thus prevented the special Judge and the High Court from giving any finding an alleged forgery and thereby depriving the Supreme Court also from the benefits of such findings of the courts below.

[131 C-E] 3:7 There is no prima facie case of forgery or criminal misconduct made out on the materials on record. If the Chief Minister found that his first order was unwarranted by law, it was but right that he cancelled that order. Pasting order by a piece of paper containing another order prima facie appears suspicious, but pasting is the common practice in the Chief Minister's Secretariat. Antedating simpliciter is no offence. [132 C,E,F] 3:8 If two interpretations are possible, one indicating criminal intention and the other innocent, needless to say that the interpretation beneficial to the accused must be accepted. [132 G] 3:9 Remand for trial if made will be a mere exercise in futility and it will be nothing but an abuse of the Court to remand the case to the trial court in view of the following circumstances, namely, (1) the occurrence took place as early as 1970; it is already more than twelve years; (ii) Respondent No. 2 is the Chief Minister in his office.

Knowing human nature, as it is, it can hardly be expected that the witnesses, most of whom are officials, will come forward and depose against a Chief Minister; and (iii) Even after the assumption of office by Respondent No. 2 as the Chief Minister is in the court of Special Judge, the prosecution was pending on several dates but the Prosecutor, Sri A.K. Dutta, did not take any interest in the case at all. It cannot be accepted that a Public Prosecutor appointed by the Government in power, will now take interest and conduct the case so as to secure conviction of his own Chief Minister. [136 F-H, 137 A-B] Per R.B. Misra J.

1:1 A bare perusal of Section 321 of the Criminal Procedure Code shows that it does not put any embargo or fetter on the power of the Public Prosecutor to withdraw from prosecuting a particular criminal case pending in any court. All that he requires is that he can only do so with the consent of the court where the case is pending in any court. [140 C-D] 1:2 In this country, the scheme of criminal justice places the prime responsibility of prosecuting serious offences on the executive authority. The investigation, collection of requisite evidence and the prosecution for the offences with reference to such evidence are the functions of the executive. The function of the court in this respect is a limited one and intended only to prevent the abuse. The function of the court in according its consent to withdrawal is, however, a judicial function. It, therefore, becomes necessary for the court before 70 whom the application for withdrawal is filed by the public prosecutor to apply its mind so that the appellate court may examine and be satisfied that the court has not accorded its consent as a matter of course but has applied its mind to the grounds taken in the application for withdrawal by Public Prosecutor. [140 E-G] State of Bihar v. Ram Naresh Pand ey, [1957] SCR 297;

M.N.S. Nair v. P.V. Balakrishnan & Ors., [1972] 2 SCR 599, State of Orissa v. C. Mohapatra, [1977] 1 SCR 355; Balwant Singh v. State of Bihar, [1978] 1 SCR 604; R.K. Jain v.

State; [1980] 3 SCR 982, referred.

2:1 Section 321 is in very wide terms and in view of the decisions of the Supreme Court, it will not be possible to confine the grounds of withdrawal of criminal proceeding only to offences which may be termed as political offences or offences involving emotive issues. The only guiding factor which should weigh with Public Prosecutor while making the application for withdrawal and the court according its permission for withdrawal is to see whether the interest of public justice is advanced and the application for withdrawal is not moved with oblique motive unconnected with the vindication of the cause of public justice. [145 E-G] 2:2 The Indian Penal Code or the Code of Criminal Procedure does not make any such distinction between political offences and offences other than political ones.

Even if it is accepted that political offences are unknown to jurisprudence and other Acts do contemplate political offences, the fact remains that Section 321 Cr. P.C. is not confined only to political offences, but it applies to all kinds of offences and the application for withdrawal can be made by the Public Prosecutor on various grounds. [145 H, 146 A-B] 2:3 To say that unless the crime allegedly committed are per se political offences or are motivated by political ambition or consideration or are committed during mass agitation, communal frenzies, regional disputes, no question of serving a broader cause of public justice, public order or peace can arise is to put limitation on the broad terms of Section 321 of the Code. [148 F-G] 3:1 The Public Prosecutor may withdraw from the prosecution not only on the ground of paucity of evidence but on the other relevant grounds as well in order to further broad aims of justice, public order and peace. Broad aim of public justice will certainly include appropriate social, economic and political purposes. [143 G-H] 3:2 An application for withdrawal from the prosecution can be made on various grounds and it is not confined to political offences. Therefore, it cannot be said that the grounds mentioned in the application for withdrawal, namely:

(i) implication of the accused persons as a result of political and personal vendetta, (ii) inexpediency of the prosecution for the reasons of State and Public policy, and 71 (iii)adverse effects that the continuance of the prosecution will bring on public interest in the light of the changed situation, are irrelevant. are not liable grounds for withdrawal. [145 G-H] 3:3 Further, the decision of the public prosecutor to withdraw from the case on the grounds given by him in his application for withdrawal cannot be said to be actuated by improper oblique motive. He bonafide thought that in the changed circumstances it would be inexpedient to proceed with the case and would be a sheer waste of public money and time to drag on with the case if the chances for conviction are few and far between. In the circumstances, instead of serving the public cause of justice, it will be to the detriment of public interest. [149 B-D] 3:4 The letter sent by the Government to the public prosecutor did not indicate that the Government wants him not to proceed with the case, but the letter gave full discretion to the Public Prosecutor, to apply his own mind and to come to his own conclusion. Consultation with the Government or high officer is not improper. But the Public Prosecutor has to apply his own mind to the facts and circumstances of the case before coming to the conclusion to withdraw from the prosecution. From the materials on the record, it is clear that the Public Prosecutor has applied his own mind and came to his own conclusions. [155 D-F] 3:5 the statutory responsibility for deciding withdrawal squarely rests upon the public prosecutor. It is non-negotiable and cannot be bartered away. The court's duty in dealing with the application under Section 321 is not to reappraise the materials which led the public prosecutor to request withdrawal from the prosecution but to consider whether public prosecutor applied his mind as a free agent uninfluenced by irrelevant and extraneous or oblique considerations, as the court has a special duty in this regard in as much as it is the ultimate repository of legislative confidence in granting or withdrawing its consent to withdrawal from prosecution. [149 D-E] 3:6 If the view of the Public Prosecutor is one, which could in the circumstances be taken by any reasonable man, the court cannot substitute its own opinion for that of the Public Prosecutor. If the Public Prosecutor has applied his mind on the relevant materials and his opinion is not perverse and which a reasonable man could have arrived at, a roving enquiry into the evidence and materials on the record for the purpose of finding out whether his conclusions were right or wrong would be incompetent. [154 H, 155 A] In the view taken that no prima facie case has been made out under Section 466 of the Indian Penal Code and Section 5 (1) (d) of the Prevention of Corruption Act and the fact that the High Court in revision agreed with the view of the Special Judge giving consent to the withdrawal from the prosecution on the application of the Public Prosecutor under Section 321 I.P.C. this Court cannot make a fresh appraisal of evidence and come to a different conclusion.

72 All that this Court has to see is that the Public Prosecutor was not actuated by extraneous or improper considerations while moving the application for withdrawal from the prosecution. Even if it is possible to have another view different from the one taken by the Public Prosecutor while moving the application for withdrawal from prosecution the Supreme Court should be reluctant to interfere with the order unless it comes to the conclusion that the Public Prosecutor has not applied his mind to the facts and circumstances of the case, and has simply acted at the behest of the Government or has been actuated by extraneous and improper considerations. On the facts and circumstances of the case, it is clear that the Public Prosecutor was actuated by oblique or improver motive. [157 B-F]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 241 of 1982.

Appeal by Special leave from the judgment and order dated the 14th September, 1981 of the Patna High Court in Criminal Revision No. 874 of 1981.

K.K. Venugopal, S.K. Sinha, S.K. Verma, V.N. Singh, L.K. Pandey, M.N. Krimanani and V.N. Sinha for the Appellants.

K. Parasaran, Soliciter General, K.P. Verma, P.S.

Mishra and R.P. Singh for Respondent No. 1.

A.K. Sen, O.P. Malhotra and R.K. Jain for Respondent No. 2.

Rajendra Singh, R.P. Singh Ranjit Kumar and S. Goswami, for Respondent No 3.

S.N. Kacker and M.P. Jha for Respondent No. 4.

Jaya Narayan and Smt. Nirmala Prasad for Intervenor.

The following Judgments were delivered TULZAPURKAR, J. By this appeal, preferred on the basis of the special leave granted to him, the appellant is challenging the withdrawal from the prosecution of Respondents Nos. 2, 3 and 4 in a criminal case under s. 321 of the Criminal Procedure Code, 1973 .

After obtaining the requisite sanction from the Governor on 19th February, 1979 a charge-sheet in Vigilance P.S. Case 9 (2) 78 was filed by the State of Bihar against Respondent No. 2 (Dr. Jagannath Misra), Respondent No. 3 (Nawal Kishore Sinha), Respondent No. 4 (Jiwanand Jha) and three other (K.P. Gupta, since 73 deceased, N.A. Haidari and A.K. Singh, who later became approvers) for offences under ss. 420/466/471/109/120-B I.P.C. and under s. 5(1) (a), 5(1) (b) and 5(1) (d) read with s. 5(2) of the Prevention of Corruption Act, 1947.

Inter alia, the gravamen of the charge against the respondent No. 2 was that at all times material he was either a Minister or the Chief Minister of Bihar and in that capacity by corrupt or illegal means or by otherwise abusing his position as a public servant, he in conspiracy with the other accused and with a view to protect Nawal Kishore Sinha in particular, sought to subvert criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others, and either obtained for himself or conferred on them pecuniary advantage to the detriment of Patna Urban Cooperative Bank, its members, depositors and creditors and thereby committed the offence of criminal mis-conduct under s. 5(1) (d) read with s.5(2) of the Prevention of Corruption Act, 1947 and in that process committed the other offences specified in the charge-sheet, including the offence of forgery under s. 466 I.P.C. cognizance of the case was taken on 21st November, 1979 by the learned Chief Judicial Magistrate-cum-Special Judge (Vigilance), Patna, who issued process against the accused but before the trial commenced the State Government, at the instance of Respondent No.2, who in the mean time had come to power and had become the Chief Minister, took a decision in February 1981 to withdraw from the prosecution for reasons of State and Public Policy.

Though initially Shri Awadhesh Kumar Dutt, Senior Advocate, Patna High Court, had been appointed as a Special public prosecutor by the previous Government for conducting the said case, the State Government (now headed by Respondent No. (2) without cancelling Shri Dutt's appointment as Special Public prosecutor, on 24th February, 1981 constituted a fresh panel of lawyers for conducting cases pertaining to Vigilance Department and Shri Lalan Prasad Sinha, one of the Advocates so appointed on the fresh panel was allotted the said case and was informed of the Government's said decision and on 26th March 1981 he was further requested to take steps for the withdrawal of the case after he had considered the matter and satisfied himself about it. On 17th June, 1981 Shri Lalan Prasad Sinha made an application under s. 321 Cr.P.C. 1973 to the Special Judge seeking permission to withdraw from the prosecution of Respondent Nos. 2, 3 and 4 in the case on four grounds, namely, (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 74 and (d) Adverse effects that the continuance of the prosecution will bring on public interest in the light of the changed situation; and the learned Special Judge by his order dated 20th June, 1981 granted the permission. A Criminal Revision (No. 874/1981) preferred by the appellant against the said order was dismissed in limine by the High Court on 14th September, 1981. It is this withdrawal from the prosecution permitted by the learned Special Judge and its confirmation by the High Court that are being challenged in this appeal.

Counsel for the appellant raised three or four contentions in support of the appeal. In the first place he contended that the impugned withdrawal was utterly unjustified on merits and also illegal being contrary to the principles enunciated by this Court governing the exercise of the power under s. 321 Cr. P.C. According to him the decisions of this Court bearing on the nature and scope of the power under the section clearly suggest that for purposes of that section a dichotomy exists between political offences and common law offences and that the considerations of public policy, public interest, reasons of State or political and personal vendetta may become relevant in the case the former cateorgy but are irrelevant while withdrawing from the prosecution of common law offences and since in the instant case the offences with which the accused and particularly Respondent No. 2 had been charged were common law offences, namely, bribery (criminal misconduct) and forgery and not with any political offence the grounds at (b), (c) and (d) mentioned in the application seeking permission for withdrawal were irrelevant and extraneous and non-germane considerations influenced the Public Prosecutor as also the Court the withdrawal is vitiated and is bad in law and as regards ground (a), namely, insufficiency of evidence or lack of prospect of successful prosecution the same was clearly untenable being in teeth of undisputed and genuine documentary evidence including the orders admittedly passed by respondent No. 2 in his own hand that was available to prove the charges; he also urged that in a case where the proof of the offences was primarily based on documentary evidence, the genuineness of which was not in dispute no question of political and personal vendetta or unfair and over enthusiastic investigation could arise; therefore, the impugned withdrawal deserved to be quashed. Secondly, counsel contended that Shri Lalan Prasad Sinha was not the competent officer to apply for withdrawal from the prosecution of the case under s. 321 Cr P.C. inasmuch as that Shri A.K. Dutt's appointment as Special 75 public Prosecutor made under s. 24(8) Cr. P.C. to conduct this case had not been cancelled and as such the application for permission to withdraw as well as the permission granted thereon were unauthorised, incompetent and illegal. Thirdly, it was urged that on the facts and circumstances of the case Shri Lalan Prasad Sinha did not function independently as a free agent but was influenced and guided by the State Government's decision in the matter and as such the withdrawal at the behest of the Government was vitiated.

Counsel also urged that Shri Lalan Prasad Sinha's decision (if at all it was his own) to withdraw from the prosecution as well as the Special Judge's decision to grant permission were vitiated by non-application of mind.

On the other hand, Counsel for the Respondents refuted all the contentions urged on behalf of the appellant. It was denied that the withdrawal in question was unjustified on merits or illegal or contrary to the principles governing the exercise of the power s. 321; on the Contrary counsel for the Respondents urged that the decisions of this Court had clarified the position that under the Code a withdrawal from the prosecution was an executive function of the Public Prosecutor or that the discretion to withdraw from the prosecution was that of the Public Prosecutor and none else and that he could withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace and the broad ends of public justice would include appropriate social, economic and political purposes, and what was more in granting its consent to the withdrawal the Court merely performed a supervisory function and in discharging such function the Court was not to re-appreciate the grounds which led the public prosecutor to request withdrawal from the prosecution but to consider whether the Public prosecutor had applied his mind as a free agent, uninfluenced by irrelevant or extraneous consideration. It was disputed that the grounds (b), (c) and (d) mentioned in the application seeking permission to withdraw were irrelevant or extraneous or that ground (a) was untenable. According to Counsel in the instant case Shri Lalan Prasad Sinha, being in charge as well as in the conduct of the case was competent to make the application for withdrawal and he had done so after considering all the relevant factors and circumstances bearing on the issue and satisfying himself about it and not at the behest of the Government as contended by the appellant and the learned Special Judge also performed his supervisory function in granting the requisite 76 permission on relevant considerations. Counsel emphatically denied that either the public prosecutor's decision to withdraw from the prosecution or the special Judge's supervisory function was vitiated by non-application of mind. Lastly it was contended that this Court should not interfere with the impugned orders of the trial Court as well as the High Court in exercise of its powers under Art.

136 of the Constitution and the appeal are dismissed.

Having regard to the aforesaid rival contentions that were urged before us by the learned Attorney General and Council on either side it is clear that principally three questions arise for our determination in this appeal, namely, (1) what is the true scope and nature of the power under s. 321 of Cr. P.C, 1973 ? (2) whether Shri Lalan Prasad Sinha was competent officer entitled to apply for withdrawal from the prosecution and if so whether he discharged his executive function independently as a free agent? And (3) whether the withdrawal from the prosecution of respondents 2, 3 and 4 in Vigilance P. S. Case No. 9 (2) 78 was unwarranted and unjustified on facts as also in law ? In other words, whether the executive function of the Public Prosecutor and or the supervisory function performed by the Court was vitiated on account of extraneous considerations or non application of mind etc deserving interference by this Court ? On the first question s. 321 in terms gives no guidance; it merely says that "the 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 goes on to indicate the results that entail upon such withdrawal, namely, either a discharge of the accused if the withdrawal is made before the charge is framed or an acquittal of the accused if it is made after the charge has been framed; in other words, it gives no indication or guideline as to in what circumstances or on what grounds the public Prosecutor may apply for withdrawal from the prosecution nor the considerations on which the Court is to grant its consent and hence the necessity to go to decisions of this Court for ascertaining the true scope and nature of the power contained in it. In this behalf quite a few decisions of this Court both in regard to the earlier provision contained in s. 494 Cr. P.C. 1898 and the present provision contained in s. 321 (both being substantially in pari materia) were referred to by Counsel for the 77 parties but it is not necessary to deal with all of them and a reference to four decisions, namely, State of Bihar v. Ram Naresh Pandey,(1) State of Orissa v. Chandrika Mohapatra and Ors.,(2) Balwant Singh and ors. v. State of Bihar(3) and R. K. Jain v. The State(4) having a bearing on the aspects under consideration will suffice. These decisions, apart from enunciating the principles which would govern the exercise of the power under the section, emphasise the functional dichotomy of the Public Prosecutor (who performs an executive function) and the Court (which performs a supervisory judicial function) there under.

In Ram Naresh Pandey's case (supra) the Court while dealing with s. 494 of the old Code observed thus.

"The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by his discharge or acquittal, as the case may be .....

There can be no doubt, however, that the resultant order on the granting of the consent, being an order of 'discharge' or 'acquittal', would attract the applicability of correction by the High Court under ss.

435, 436 and 439 or 417 of the Code of Criminal Procedure . The function of the Court, therefore, in granting its consent may well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion ........ The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially .. The judicial function, therefore, implicit in the exercise of 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 improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes .. .... It (s. 494) cannot be taken to place on the Court the responsibility for a prima facie determination of a triable 78 issue. For instance the discharge that results therefrom need not always conform to the standard of 'no prima facie case' under ss. 209 (1) and 253 (1) or of 'ground lessens' under ss. 209 (2) and 253 (2). This is not to say that a consent is to be lightly given on the application of the Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made." (Emphasis supplied).

In Chandrika Mohapatra's case (supra) while setting out the principles that should be kept in mind by the Court at the time of giving consent to withdrawal from the prosecution under s. 494 the Court observed thus;

"It will therefore, be seen that it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution.

The ultimate guiding consideration must always be the interest of administration of justice and that is the touchstone on which the question must be determined whether the prosecution should be allowed to be withdrawn." It may be stated that Criminal Appeal No. 310 of 1975 was one of the appeals decided by the Court in that case. In that appeal the incident, during the course of which offences under ss. 147, 148 149, 307 and 324 I.P.C. were said to have been committed, had arisen out of rivalry between two trade unions and since the date of the incident calm and peaceful atmosphere prevailed in the industrial undertaking and in those circumstances the State felt that it would not be conducive to interest of justice to continue the prosecution against the respondents since the prosecution with the possibility of conviction of the respondents would rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere prevailing in the industrial undertaking and hence permission to withdraw 79 was sought and granted. Upholding the permission the Court observed thus:

"We cannot forget that ultimately every offence has a social or economic cause behind it and if the state feels that elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution the State should clearly be at liberty to withdraw from the prosecution." In Balwant Singh's case (supra) the independent role of the Public Prosecutor in making an application for withdrawal from the prosecution was emphasised and the Court pointed out that the sole consideration which should guide the Public Prosecutor before he decides to withdraw from the prosecution was the larger factor of the administration of justice and not political favours nor party pressures nor the like considerations; nor should he allow himself to be dictated by his administrative superiors to withdraw from prosecution, but that the consideration which should weigh with him must be whether the broader cause of public justice will be advanced or retarded by the withdrawal or continuance of the prosecution. The Court also indicated some instances where withdrawal from prosecution might be resorted to independently of the merits of the case where the broader cause of public justice would be served:

"Of course, the interests of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation. For instance, communal feuds which may have been amicably settled should not re-erupt on account of one or two prosecutions pending. Labour disputes which, might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution. Other instances may also be given where public justice may be served by withdrawal even apart from the merits of the case." In R.K. Jain's case (supra) after reviewing the entire case law on the subject this Court enunciated eight propositions as emerging 80 from the decided cases (page 996 of the Report), out of which the following six would be material for the purposes of the instant case:

"1. The withdrawal from the prosecution is an executive function of the Public Prosecutor.

2. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.

3. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.

4. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but no other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes Sans Tammany Hall Enterprises.

5. The Court performs a supervisory function granting its consent to the withdrawal.

6. The Court's duty is not to re-appreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution." By way of elaborating proposition No. 4 above, the Court has gone on to observe thus:

"We have referred to the precedents of this Court where it has been said that paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution. In the past we have often known how expedient and necessary it is in the public interest for 81 the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest, etc. Whenever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counterproductive." Similarly, by way of elaborating proposition No. 6 above the Court has gone on to observe thus:

"We may add it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of s. 321 Criminal Procedure Code . The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case." From the aforesaid enunciation of the legal position governing the proper exercise of the power contained in s. 321, three or four things become amply clear. In the first place though it is an executive function of the Public Prosecutor for which statutory discretion is vested in him, the discretion is neither absolute nor unreviewable but it is subject to the Court's supervisory function. In fact being an executive function it would be subject to a judicial review on certain limited grounds like any other executive action, the authority with whom the discretion is vested "must genuinely address itself to the matter before it, must not act under the dictates of another body must not do what it has been forbidden to do, must act in good faith, must have regard to all relevant considerations and must not 82 be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act and not must act arbitrarily or capriciously These several principles can conveniently be grouped in two main categories failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive." (vide de Smith's judicial Review of Administrative Action 4th Edition pp. 285-86) Secondly, since the trial Court's supervisory function of either granting or refusing to grant the permission is a judicial function the same is liable to correction by the High Court under its revisional powers both under the old as well as the present Code of Criminal Procedure, and naturally this Court would have at least co-extensive jurisdiction with the High Court in an appeal preferred to it by special leave or upon a certificate by the High Court.

Thirdly, no dichotomy as such between political offences or the like on the one hand and common law crimes on the other could be said to have been made by this Court for purposes of s. 321 as con-tended for by Counsel for the appellant, for, even in what are called political offences or the like, committing common law crimes is implicit for the withdrawal from the prosecution of which the power under s. 321 has to be resorted to. But the decisions of this Court do lay down that when common law crimes are motivated by political ambitions or considerations or they are committed during or are followed by mass agitations, communal frenzies, regional disputes, industrial conflicts, student unrest or like situations involving emotive issues giving rise to an atmosphere surcharged with violence the broader cause of public justice, public order and peace may outweigh the public interest of administering criminal justice in a particular litigation and withdrawal from the prosecution of that litigation would become necessary, a certainty of conviction notwithstanding persistence in the prosecution in the name of vindicating the law may prove counter-productive. In other words, in case of such conflict between the two types of public interests, the narrower public interest should yield to the broader public interest, and therefore, an onerous duty is cast upon the Court to weigh and decide which public interest should prevail in each case while granting or refusing to grant its consent to the withdrawal from the prosecution. For, it is not invariably that whenever crime is politically motivated or is committed in or is followed by any explosive situation involving emotive 83 issues that the prosecution must be withdrawn. An instance in point would be the case of Mahatma Gandhi's assassination, which was in a sense politically motivated (due to transfer of Rs. 55 crores to Pakistan) and was followed by explosive situation involving emotive issue resulting in widespread violence, arson and incendiarism against members of a class in the country particularly in Maharashtra but no one suggested any withdrawal and the prosecution of the persons, who also included a political personality, was rightly carried to its logical end resulting in conviction of the guilty and acquittal of the political personality. In other words, in each case of such conflict the Court has to weigh and decide judiciously. But it is obvious that unless the crime in question are per se political offences like sedition or are motivated by political considerations or are committed during or are followed by mass agitations, communal frenzies, regional disputes, industrial conflicts, student unrest or the like situations involving emotive issues giving rise to an atmosphere surcharged with violence, no question of serving any broader cause of public justice public order or peace would arise and in the absence thereof the public interest of administering criminal justice in a given case cannot be permitted to be sacrificed, particularly when a highly placed person is allegedly involved in the crime, as otherwise the common man's faith in the rule of law and democratic values would be shattered.

Fourthly, the decision in R.K. Jain's case (supra) clearly shows that when paucity of evidence or lack of prospect of successful prosecution is the ground for withdrawal the Court has not merely the power but a duty to examine the material on record without which the validity and propriety of such ground cannot be determined. In that case this Court disposed of two sets of appeals, one where the withdrawal from the prosecution against George Fernandes and others was on the ground that the offences were of political character and the other pertained to withdrawal from