Subhash Chander v. State (Chandigarh Admn.) & Ors.

Judgment

The Order of the Court was delivered by ~1980] ;!, S.C.R. KRISHNA IYER, J.--What constrains us to explain at some length our reasons for rejection of leave to appeal in this case; is the desideratum that every executive challenge to justice-in-action is a call to the court to strengthen public confidence by infusing lunctional freshness into the relevant law sufficient to overpower the apprehended evil. The house of the petitioner is said to have been burgled and he alleges that he lost many valuables. The police, on information being laid, searched and recovered the property. Eventually, charges were framed by the trial court against one .Hussan Lal, a jeweller, and one Madan Lal, an alkged collaborator (respondents Nos. 2 and 3 in this petition) under s. 411 I P.C. and one Ashok Kumar under s. 380, I.P.C. During the pendency of the criminal case, the Assistant Public Prosecutor applied for withdrawal from pr06ecutiou under s.

321, Cr.P.C. on the ground that on fresh investigation by a senio.r officer the alleged search and seizure were discovered to be a frame-up by the concerned police officer in order to pressur'se the accu 0 e<l Hussan LaJ to withdraw a certain civil litigation. On the court requiring a fuller applicatio:i the Assistant Public Prosecutor made a fresh and more detailed petitio,n for withdrawal which was eventually grante<l hv the trial court, despite the qetitioner's remonstrance that the withdrawal was prompted by the political influence wielded by Hussan Lal leading to instructions from high quarters to the Assistant Public Prosecutor to withdraw from the case concerning that accused. It was alleged that in carrying out the instructions the Assistant Public Prosecutor did not apply an independent mind. The court nevertheless accepted the request. OJf the Assistant Public Prosecutor and directed acquittal of Hussan Lal, while continuing the case against the remaining two accused.

The order w?s unsuccessfully assailed in revision before the High Court by the petitioner. Undaunted by that dismissal, he has moved this court under Art. 136 of the Constitution. In view o!f the startling disclosures on either side we have listened at some length to the oral submissions ill supplementation o!f the affidavits in the record. Tht: three focal points of arguments are whether (i) a case which pends in court can be subject to a second police investigation without the judge even knowing about it, (ii) political considerations of the Executive vitiate the motion for withdrawal of pending proceeding, and (iii) the District Magistrate's order to withdraw from a case communicated to the Public Prosecutor and carried out by *im, is compliance with s. 494. SUBHASH CHANDER v. STATE (Kri5ifma Iyer, J.)

When a crime is cbmmitted in this country, the assessment of guilt and the award of punishment or, alternatively, the discharge or acquittal of the accused are part of the criminal justice process administered by the courts of the land. It is not the function of tk executive to administer criminal justice and in our system, judges are not fungible, as Justice Dongles in Chandler,(') asserted : g·\" ~udges a;e not fungible; they cover the constitutiooal spectrum; and a particular judge's emphasis may make a world ad' difference when it comes to rulings on evidence, the temper of the courtroom. the tolerance for a proffereJ defen~e, and the Jiile. Lawyers recognize this when they talk about 'shopping' for a judge; Senators recognize this when they are asked to give their 'advice and consent' to judicial appointments; laymen recognize this when they ap~raise the quality and image of the judiciary in their own community."

When a ease is pending in a criminal court. it< procedure· and progreis are governed by the Criminal Proceduro Codo oc other relevant statnte To intercept.and recall an enquiry or trial in a court, save in the manner and to the extent provided for in the law, is itself a violation of the law Wha~ver needs to be done must be done in acco.rdance with the law. 'The function of administering justice, under our constitutional order, belongs to those entrusted with judicial power. One of the few exceptions to the uninterrupted flow of the court's process is s. 321, Cr. P.C. But even h~re it is the Public Prosecutor, and not any executive authority, who is entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of the court. We repeat for emphasis. To interdict, intercept or jettison an enquiry or trial in a court, save in the manner and to the extent provided for in the Code itself, is lawlessness.

The even course of criminal justice cannot be thwarted by the Executive, however high the accused, however sure Government feels a case is false, however unpalatable the continuance of the prosecution to the powers-that-be who wish to scuttle court justice because of hubris, affection or other noble or ig'!!oble consideration. Justicing, under our constitutional order, belongs to the judges. Among the very few exceptions to this uninterrupted flow of the court process is s. 494, Cr.P.C. Even here, the Public Prosecutor--not any executive authority-is entrusted by the Code with a limited power to withdraw from a prosecution, v1ith the (I) Cha~dler v. Judicial Council of the Tenth Circuit of the U.S 308 U.S. 74, 1970. 48 [1980) 2 ~C.R. court's consont whereupon the case comes to a· close.

What the law has ignited, the law alone shall extinguish. n Although skeletal, the conditions for such withdrawal are implicit in the provision, besides the general principles which have been evolved through precedents. Once a prosecution is launched, its relentless course caunot be halted except on sound considerations germane to public ·justice. All public power is a public trust, and the Public Prosecutor cannot act save in discharge of that public trust, a public trust geared to public justice. The cQ!lSent of the court under •· 321 as a condition for withdrawal is imposed as a check on the exercise. of that power. Consent will be given only if public jUBtice in the forger sense is promoted rather than subverted by such withdrawal. That is the essence of the nolle prosequi jurisprudence. We wish to stress, since impermissible influences occasionally infiltrate into this forbidden ground, that court justice is out of bounds for masters and minions elsewhere.

We do not truncate the amplitude of the public policy behind s. 494 Cr.P.C. but warn off tempting adulteration of this policy, talcing the public prosecutor for granted. Maybe, the executive, for plural concerns and diverse reasons, may rightfully desire a criminal case to be scotched. The fact tha~ broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long-lasting security in a loca- · !ity, of order in a disorderly situation or harmony in a factioua milieu, or halting a false and vexatious prosecution in a court, persuades tho Executive, pro bona publico, sacrifice a pending cMC for a wider benefit, is not ruled out although the power must be ~paringly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrat_ti or Minister. The concurrence of the court is necessary.

The subsequent discovery of a hoax behind the prosecu" tion or false basis for the criminal proceeding as i~ alleged In this case, may well be a relevant ground for withdrawal. For the court should not be misused to continue a case conclusively proved to be a counterf~it. This statement of the law is not exhaustivo but is enough for the present purpose and, indeed, is well-grounded on precedents. The promotion of law and order is an aspect of public jUstice. Grounds of public policy may call for withdrawal of the prosccufion. A prosecution discovered to be false and vexatious cannot be ~ to proceed. The grounds cover a large canvas. But the power must be cautiously exercised, and the statutory agency to be satisfied is the Public Prosecutor in the first instance, not the District Magismte or other executive authority. Finally, the consent of the coiirt itl flllpera- (it!BHASH CHANDER v. STATE (Kri.1/ma Iyer, J.) 49 tive. The law was explained by this Court in M. N. SankaranarayttrU:t Nair v. P. V. Bala Kris/ina & Ors.(1)

"A reading of Sec. 494 ,would show that it is the public prosecutor who is in-charge of the case that must ask for , Permission of the Court to withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried. This permission can be sought by him at any stage either during the enquiry or after committal oc even before the judgment is pronounced. The section does not, however, indicate the reasons which shoulcf weigh with the Public Prosecutor to move the Court for permission nor the grounds on which the Court will grant or refuse permission.

Though the Section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient informatiou before prosecuting agency would falsify the prosecution evidence or ,any other simila.r circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case.

Nonetheless it is the duty of the Court also to see i• fnrtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that o!Icnces which are offences against the State go unpunished merely because tl1e Govemment as a matter of general policy or expediency unconnected with its duty to prosecute offenderi; under the law. directs the Public Prosecutor to witl1draw from tile prosecution and the Public Prosecutor merely doet. ro at its behest." The position was coufinned in Bansi Lal v. C/iandan Lal(2) and BalW(lnt Singh & Ors. v. Bi'1ar( 3). The law is thus well settled and it8 application is all that ~alls for caution. In the special sitaation of this case, two principles must be hammered home. 'f!le deeisiOl'I td withdraw must be of the Public Prosecutor, not of other authorities, even. of those whose displeasure may affect his continuance in o:!fice. (I) A.l.R. 1972 S.C. 496. C2l A.l.R. 1976 S.C. 370. '3) A.I.R. 1977 S,C. 2265.

50 The court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the public prosecutor. The two matters which are significant are (a) whether the considerations are germane, and (b) whether the actual decision was made or only obeyed by the Public Prosecutor . In the setting of the present facts, the enquiry must be whether the considerations on which withdrawal was sought by the Assistant Public Prosecuto.r were germane and pertinent, and whether the actual decision to withdraw was made by the Assistant Public Prosecutor or was the result of blind compliance with executive authocity. If it appears from the material before the Court that germane or relevant considerations did not prompt the motion for withdrawal but it was the pressure of political influence, the Court wm withhold its consent.

Tbe fµnctionary clothed by the Code with the power to withdraw from the prosecution is the Public Prosec~tor. The Public Prosecutor is not the executive, nor a flu'nkey 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. In the present case, it appears that when the court commenced proceedings, the accused Hussan Lal complained to 'higher police officers that the concerned Assistant Sub-Inspector had initiated the case merely for the pl\fPOSe of putting pressure on him to compromise a suit against a close relative.

The allegations were enquired into by a senior offio~r and the District Magistrate, on the basis of the material coming to light, directed disciplinary action agai'nst the Assistant Sub- Inspector and instructed the Assistant Public Prosecutor to withdraw frO!ll the case against Hussan Lal. We find no evidence. to snpport the allegations of political influence. At the same time, it is necessary to point out that the District Magistrate acted illegally in directing the Assistant Public Prosecutor to withdraw. It has been alleged that the second investigation of the case on the executive side, which led to the discovery that the earlier investigation was motivated, was vitiated by the omission to question the first informant. That was a matter foe the Assistant Public Prosecutor to consider when deciding whether or not to withdraw from the prosecution.

On the principal question arising in this case, the record shows that the Public Prosecutor applied his mind to the disclosures emerging ram tbe! secood enquiry, and he1 found that "even the recovery wity J J SUBHASH CHANDER v. STATE (Kris/ma Iyer, J.) nesses Sarvashri Mato Ram mid Phool Singh did not support that they had witnessed the recovery or any disclosure statement was made iin their presence by Madan Lal accused." He found that Phool Singh at the relevant time was bed-ridden mid had since expired. He also discovered that Mato Ram had stated that nothing had happened in bis presence but his signatures were obtnined by the fuvestigating Officer. It is abundantly clear thar the Assistant Public Prosecutoc made an independent decision on 1he material before him and did not act in blind compliance with the instructions of the District Magistrate.

We cannot dispose of this petition without drawing attention to the very disturbing presence of the District Magistrate in the withdrawal proceedings. The jurisprudence of genuflexion is alien to our system and the law expects every repository ·of power to do bis duty by the Constitution and the laws, regardless of commands, directives, threats, and temptations. The Code is the master for the criminal process. Any authority who coerces or orders or pressurises "' functionary 1I1ce a ouhlic prosecutor, in the c;xclusive province of his discreti11· violates tho rule of law and any public prosecutor who bends before such co=nd 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 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 m~y not be withdrawn.

Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and the responsbile position of Government which, in the last mialysis, has to maintain public order and promote public justice. But the decision to withdraw must be his. The District Magistrate who is mi Executive Officer is not the Public Prosecuto~ and cannot dictate to him either. Maybe, the officer had not apprised himself of the autonomous position of the Public Prosecutor or of the impropriety of his intrusion into the Public Prosecutor's discretion by making an order of withdrawal. Similar mistakes are becoming commoner at various levels and that is why we havei had to make the position of iaw perfectly clea.r. We emphasise that the rule of law warns off the executive authorities from the justicing process in the matter of withdrawal of cases.

Since we are satisfied that the Publie Prosecutor did not yield to the directive of the District Magistrate but made ari independent study of informing himself of tlie materials plac:ed before the court and then ~ought permission to withdraw from the prosecution, we decline to reverse the order passed by the courts bclaw. 52 The trial court was satisfied that the Assistant Public Prosecutor had not exercised the power of withdrawal for any il!egitimate purpose and tbo High Court endo.rsed that conclusion. We are not diaposed to interfore with the order of the High Court. One obvious grievance of the petitioner deserves to be mnedied. 'He is interested in getting back his stolen goods. The aCCHl!ed claims no property ill' the goods. In tbe event of the complainant identifying them as his property, the trial court will consider passing appropriate orders for tbe'1' return to him. Surely, criminal justice has many dimensions beyond conviction and sentence, acquittal and innocence.

The victim is not te> be forgotten but must be restored to the extent possible. The petition is rejected. N.K.A. Petition dismissed.