Important points
1. True, the power of the Court under Section 321 Cr.P.C. is supervisory but that does not mean that while exercising that power, the consent has to be granted on mere asking. The court has to examine that all relevant aspects have been taken into consideration by the Public Prosecutor and/or by the Government in exercise of its executive function.
2. Even if the State Government orders to withdraw prosecution proceedings, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice.

Headnote:(i) Code of Criminal Procedure, 1973—Section 321—Withdrawal from prosecution—Public Prosecutor must apply his mind to all relevant facts and in good faith must be satisfied that public interest will be served—Court must be satisfied that public prosecutor had applied his mind and withdrawal will not stifle or thwart process of law or cause manifest injustice—Material considered must be set out concisely in application or affidavit or in seal envelope—Court has to give informed consent.
       Per S.P. Bharucha & D.P. Mohapatra, JJ.
       Section 321 contemplates consent by the Court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest. Section 321 enables the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by a consent from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper. (Para 17)
       The law, therefore, is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice. (Para 18)
       It must follow that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the court, with its permission, in a sealed envelope. The court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the court to weigh the material. The court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If, upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent. (Para 19)
       Per Y.K. Sabharwal, J. (Concurring)
       The Public Prosecutor has to be straight, forthright and honest and has to admit the arrangement and inform the court that the real arrangement is to ultimately facilitate the release of these accused from judicial custody by not opposing the bail applications after the withdrawal of TADA charges. The arrangement as set out above has neither been disputed not is it capable of being disputed. It is well established that real purpose for withdrawal of TADA charges was to facilitate the grant of bail to the accused. In such circumstances, why the camouflage? Why it is not so stated in the application filed under Section 321? In fact, it is a deceit. These are the questions for which there is no plausible answer. No court of law can be a party to such a camouflage and deceit in judicial proceedings. The answer to these basic questions cannot be that the Judge knew about it from the very nature of the case. Under these circumstances, it cannot be said that the application was made in good faith. The satisfaction for moving an application under Section 321 Cr.P.C. has to be of the Public Prosecutor which in the nature of the case in hand has to be based on the material provided by the State. True, the power of the Court under Section 321 Cr.P.C. is supervisory but that does not mean that while exercising that power, the consent has to be granted on mere asking. The court has to examine that all relevant aspects have been taken into consideration by the Public Prosecutor and/or by the Government in exercise of its executive function. (Paras 37, 38 and 39)
       (ii) Code of Criminal Procedure, 1973—Section 321—Withdrawal from prosecution—Legality—Forest brigand kidnapping a leading film star of Karnataka—Demand for release of his men in jail under TADA and various offences under IPC—State Government directing P.P. to withdraw prosecution to enable release of abducted film star—Application by P.P. to withdraw prosecution of TADA charges to maintain peace among public at general and inhabitants of particular village—Court granting permission—Not justified—Application did not State why P.P. apprehended distrubance to peace and normalcy in particular village—No basis laid in application upon which Court could conclude that P.P. had applied his mind to relevant material and exercised his discretion—Order granting consent to withdraw prosecution did not meet requirement of Section 321 and bad in law.
       Per S.P. Bharucha & D.P. Mohapatra, JJ.
       The applications under Section 321 made by the Special Public Prosecutor before the Designated Court at Mysore submitted that the Special Public Prosecutor had decided to withdraw from prosecution the charges under the T.A.D.A. Act "in order to restore the peace and normalcy in the border area and among the people living in the border area and to maintain peace among the public at general and inhabitants of the particular village" and that such withdrawal from prosecution was necessary "in the larger interest of the State and in order to avoid any unpleasant situation in the border area". The applications did not state why the Special Public Prosecutor apprehended a disturbance of the peace and normalcy of "the border area" or the "particular village", nor was any material in this behalf, or a summary thereof, set out. There was, therefore, no basis laid in the applications upon which the learned Judge presiding over the Designated Court could conclude that the Special Public Prosecutor had applied his mind to the relevant material and exercised discretion in good faith and that the withdrawal would not stifle or thwart the course of the law and cause manifest injustice. The order of the learned Judge noted that the statement of opposition filed by the present appellant averred that Rajkumar had been abducted by Veerappan and it said that he would have to take notice of this aspect. The order did not note that the statement of opposition also said that, consequent upon such abduction, the State of Karnataka had yielded to the demands made by Veerappan and had issued notifications that it would withdraw all cases against Veerappan and his associates. No query in this regard was made by the learned Judge with the Special Public Prosecutor. The learned Judge said that he was satisfied on the material placed before him that the grant of permission to withdraw subserved the administration of justice and it had not been sought covertly, but he did not state what those materials were. It is not the case of anybody that any materials were placed before the learned Judge upon the basis of which he could have been satisfied that the Special Public Prosecutor had applied his mind thereto and had reached, in good faith, the conclusion that the withdrawal he sought was necessary for the reasons he pleaded. The learned Judge placed on record, as he called it, the decision of this Court in the case of Sheonandan Paswan, referred to above, but he did not appreciate what it required of a Public Prosecutor and of a court in regard of Section 321, and he did not follow it. The order granting consent on the Special Public Prosecutor’s application, therefore, does not meet the requirements of Section 321 and is bad in law. (Para 20)
       The affidavit of the Special Public Prosecutor reveals that he was "informed" that the Government of the State of Karnataka had intelligence reports that if any harm were to be caused to Rajkumar, it would lead to problems between two linguistic communities. Clearly, he was not shown the intelligence reports. Throughout the affidavit the phrase "I was informed" recurs. There is no statement therein which shows that the Special Public Prosecutor had the opportunity of assessing the situation for himself by reading primary material and deciding, upon the basis thereof, whether he should exercise his discretion in favour of the withdrawal of TADA charges. Acting upon information, which he could not verify, the Special Public Prosecutor could not be satisfied that such withdrawal was in the public interest and that it would not thwart or stifle the process of the law or cause manifest injustice. The Special Public Prosecutor, in fact, acted only upon the instructions of the Government of the State of Karnataka. He, therefore, did not follow the requirement of the law that he be satisfied and the consent he sought under Section 321 cannot be granted by this Court. (Para 24)
       Per Y.K. Sabharwal, J. (Concurring)
       The application and order under Section 321 is a result of panic reaction by overzealous persons without proper understanding of the problem and consideration of the relevant material, though they may not have any personal motive. It does not appear that anybody considered that if democratically elected governments give an impression to the citizens of this country of being lawbreakers, would it not breed contempt for law; would it not invite citizens to become a law on to themselves. It may lead to anarchy. The Governments have to consider and balance the choice between maintenance of law and order and anarchy. It does not appear that anyone considered this aspect. It yielded to the pressure tactics of those who according to the Government are out to terrorise the Police force and to overawe the elected Governments. It does not appear that anyone considered that with their action people may lose faith in the democratic process, when they see public authority flouted and the helplessness of the Government. The aspect of paralysing and discrediting the democratic authority had to be taken into consideration. It is the executive function to decide in public interest to withdraw from prosecution as claimed. But it is also for the Government to maintain its existence. The self-preservation is the most pervasive aspect of sovereignty. To preserve its independence and territories is the highest duty of every nation and to attain these ends nearly all other considerations are to be subordinated. Of course, it is for the State to consider these aspects and take a conscious decision. In the present case, without consideration of these aspects the decision was taken to withdraw the TADA charges. (Para 41)
       (iii) Code of Criminal Procedure, 1973—Section 321—Withdrawal from prosecution—Legality—P.P. filing application when a forest brigand kidnapped a film star demanding release of his men from jail—P.P. stating in application that under new change of circumstances and in public interest permission was sought—What records P.P. perused not stated nor summary thereof recited—What changed circumstances not set out—Order granting consent founded only upon government order—Permission granted to withdraw TADA case bad in law. (Para 21)
       (iv) Bail—Grant of—Legality—Accused persons charged under TADA and various offences under IPC—P.P. seeking permission to withdraw prosecution from charge under TADA—Court granting permission—Accused persons filing bail immediately—Court granting bail—What was envisaged by State Government and PP was package comprising of withdrawal of TADA cases and release on bail in order to secure release of a film star who was abducted—Conduct of State and P.P. deprecated—Bail set aside. (Para 25)
       (v) National Security Act, 1980—Section 14(1)(a)—Revocation of detention order—Legality of—A leading Kannada film star was kidnapped by a forest brigand—Demand for release of detenu under USA—Government’s order revoking detention apprehending blaklash on Tamils in Kannada if any harm caused to film star—Untenable—Order of Government set aside. (Paras 14 and 33)

Judgment

Bharucha, J.—The border between the States of Karnataka and Tamil Nadu runs through mountainous forest. On about 16,000 acres of this forestland, half in Karnataka and half in Tamil Nadu, a man named Veerappan has held away for more than 10 years. He is alleged to have poached elephants and smuggled out ivory and sandalwood in a very big way. He is alleged to be guilty of the most heinous crimes, including the murder of 119 persons, among them Police and Forest Officers, and kidnapping. Task forces set up by the States of Karnataka and Tamil Nadu for the purpose have been unable to apprehend him and bring him to justice for 10 years.

2. On the night of 30th July, 2000, between 20.45 and 21.10 hours, Veerappan abducted from Gajanoor a film actor named Rajkumar, who is very popular in Karnataka, and three others, namely, Govindraj, who is a son-in law of Rajkumar, Nagesh, who is a relative of Rajkumar, and Nagappa, who is an Assistant Film Director. As of today, Rajkumar and Nagesh remain in Veerappan’s custody. Nagappa is said to have escaped and Govindraj was released by Veerappan. Gajanoor is a town in Tamil Nadu close to the border with Karnataka.

3. On 8th July, 1999 the Director General of Police of the State of Karnataka had informed the Inspector General of Police of the State of Tamil Nadu that it had been reliably learnt that Veerappan intended to kidnap Rajkumar during the latter’s visit to his farmhouse in Gajanoor and had requested adequate security arrangements for Rajkumar whenever he visited Gajanoor. The record before us reveals that Rajkumar did not want police protection and considered the presence of the police a problem. He had visited Gajanoor on 22nd June, 2000, but no information in this behalf had been intimated to the police authorities at Gajanoor; however, they had come to know of his presence and had made security arrangements. No information had been received in regard to the visit of Rajkumar to Gajanoor on 28th July, 2000, and they had not learnt of it until after the kidnap.

4. At the time of the kidnapping, Veerappan handed over to Rajkumar’s wife an audio cassette to be delivered to the Chief Minister of the State Karnataka. The audio cassette required that he send an emissary to Veerappan. On 31st July, 2000 the Chief Ministers of the States of Karnataka and Tamil Nadu met in Chennai and decided to send as an emissary one Gopal, he having served as an emissary when, on 12th July, 1997, Veerappan had kidnapped nine Forest Officers of the State of Karnataka and he had obtained their release thereafter. On 1st August, 2000 Gopal left on his first mission to meet Veerappan in the forest along with two members of his staff and a videographer. On 5th August, 2000 Gopal sent an audio cassettee to Chennai which, in the voices of Veerappan and an associate, set out ten demands for the release of Rajkumar, On the next day, that is, 6th August, 2000, the Chief Ministers of the States of Karnataka and Tamil Nadu met in Chennai to discuss the demands and their responses were made public at a press conference held on that very day.

5. The ten demands and the responses thereto, as released to the Press, are as follows :

"Demand :

1. Permanent solution for the Cauvery water issue and implementation of the interim orders of the Cauvery Tribunal.

Response :

For implementation of the interim orders, the Cauvery River Water Authority has been set up under the chairmanship of the Prime Minister.

Demand :

2. Adequate compensation for Tamil victims of 1991 riots.

Response :

Karnataka has constituted Cauvery Riots Relief Authority as directed by the Supreme Court. About 10,000 claims have been received. The time limit for completion of the work has been extended up to 31.5.2001.

Demand :

3. Karnataka Government should accept Tamil as additional language of administration.

Response :

As per the G.O.I. instructions, Karnataka has issued orders on 20.5.99 that where linguistic minorities constitute more than 15 percent of the

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