Rajender Kumar Jain: Manohar Lal: Attorney General For India vs State Through Special Police Establishment: Bansi Lal: State Of Haryana

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1980 Supreme(SC) 249

SUPREME COURT OF INDIA
V.R. KRISHNA IYER AND O. CHINNAPPA REDDY, JJ.
Rajender Kumar Jain
Versus
State Through Spl. Police Establishment and others, Respondents.
Criminal Appeal No. 287, Spl. Leave Petn. (Cri) No. 3115 and Criminal Misc. Petn. No. 3890 of 1979
Decided on 2-5-1980.
WITH
Manohar Lal, Petitioner
Versus
Bansi Lal and others, Respondents.
AND
Attorney General of India, Applicant
Versus
State of Haryana and others, Respondents.

Advocates appeared
Mr. Lal Narain Sinha, Att. Genl., Mr. M. L. Banerjee, Addl. Sol.Genl. (Miss A. Subhashini and Mr. R. B. Datar, Advocates with them), for petitioner in Cri. Misc. Petn. No. 3890 of 1979.
Mr. U. D. Gour, Advocate Genl., Haryana (Mr. M. N. Shroff, Advocate with him), for Respondent in Cri Misc. Petn. No. 3890 of 1979.
M/s. P. H. Parekh, Hemant Sharma, Rajan Karanjawala and C. B. Singh, Advocates, for Petitioner in S. L. P. No. 3115 of 1979.
Mr. M. C. Bhandare, Sr. Advocate (Mrs. Sunanda Bhandare and T. Sridharan, Advocates with him), For Respondent No. 1 in S. L. P. No. 3115 of 1979.
Mr. A. N. Karkhanis, Advocate, for Respondent No. 4 in S. L. P. No. 3115 of 1979.
Mr. U. D. Gour, Advocate Genl. , Haryana (Mr. M. N. Shroff, Advocate with him), for Respondents 26-27 in S. L. P. No. 3115 of 1979.
Mr. Lal Narain Sinha, Att. Genl. (Miss A. Subhashini and Mr. R. B. Datar, Advocates with him) for Respondent No. 30 in S. L. P. No. 3115 of 1979.
Mr. Ram Panjwani, Sr. Advocate (M/s. Raj Panjwani, Vijay Panjwani and S. K. 1512 Bagga, Advocates with him), for Petitioner in Cri. A. No. 287 of 1979.
Mr. Lal Narain Sinha, Att. Genl., Mr. M. K. Banerjee, Addl. Soli. General (Miss A. Subhashini, Advocate with them), for Respondent No. 1 in Cri A. No. 297 of 1979.
Mr. Ram Jethmalani, Sr. Advocate (Mrs. Sushma Swaraj, Mr. Swaraj, Mr. A. K. Pande and Mrs. Nemanlika Wahi, Advocates with him), for Respondent No. 2 in Cri. A. No. 297 of 1979.
Mr. V. M. Tarkunde, Sr. Advocate (M/s. T. U. Mehta, P. H. Parekh and Miss Vineeta Caprihan, Advocates with him), for Respondent No. 5 in Cri. A. 287 of 1979.
Mr. Ram Jethmalani, Sr. Advocate (Mr. Ranjan Dwivedi, Advocate with him), for Respondents Nos. 2, 11, 12 and 13 in Cri. A. No. 287 of 1979.
Mr. Ram Jethmalani, Sr. Advocate (Mr. A. G. Noorani, Miss Rani Jethmalani and Mrs. Kamini Jaiswal, Advocates with him), for Respondents Nos. 3, 15 and 16.
Mr. Ram Jethmalani, Sr. Advocate (Mr. A. G. Noorani, Miss Rani Jethmalani Advocates with him), for Respondent No. 21 in Cri A. No. 287 of 1979.
In Person (Mr. Sushil Chandra Bhatnagar), for Respondent No. 14 in Cri. A. No. 287 of 1979.

Advocates:
A.G.NOORANI, A.K.PANDEY, A.N.Karkhanis, A.Subhashini, C.B.SINGH, HEMANT SHARMA, HEMANTIKA VATII, K.M.JAISWAL, LAL NARAIN SINHA, M.B.BANERJI, M.C.BHANDARE, M.N.SHROFF, P.H.Parekh, P.H.PARIKH, R.B.DATAR, RAJ PANJWANI, RAJAN KARANJAWALA, RAM JETHMALANI, RAM PANJWANI, Ranjan Dwivedi, Sunanda Bhandare, SUSHMA SVARAJ, T.SHRIDHARN, T.U.Mehta, V.M.TARKUNDE, VIJAY PANJAVANI, VINIETA COPRIHAN

Headnote:
Explosive Substances Act, 1908 - Section 7 - Indian Explosives Act, 1884 Section 5 (3), (b) and 12 - Indian Penal Code - 120-B, 121-A, 4, 5 and 6 - Code of Criminal Procedure, 1973 - Section 196 (1) (a) and 306 (4) - Criminal Procedure Code - Section 397 - Constitution of India, 1950 Article 351 (2) - Charged Were Of A Political Nature - Prosecution On Grounds Of Public Policy Proposal To Withdraw From Prosecution Emanated - Purely Political Purpose And Not In Public Interest - Appellant made following submissions offences for which accused persons were to be tried were exclusively triable by a Court of Session and therefore Committing Magistrate had no jurisdiction to give consent to Public Prosecutor to withdraw from prosecution Public Prosecutor had abdicated his function and had filed application at behest of Central Government without applying his mind Magistrate was in error in giving consent on ground that it was expedient to do so - Expedience was never for judiciary - Who had filed application for widhdrawal from prosecution was not Public Prosecutor incharge of case and application was therefore incompetent - Submissions were controverted - Learned counsel for respondents - They also submitted that offence with which accused persons were charged were of a political nature and if Government of day thought that Public Prosecutor should withdraw from prosecution on grounds of public policy and advised Public Prosecutor to do so it could not be said that Public Prosecutor abdicated his function merely because proposal to withdraw from prosecution emanated from Government and he acted upon such proposal - It was also submitted that so far as fifth respondent was concerned no prosecution could be launched or continued against him under Art. 351 (2) as he was Governor of a State – Held, It is on this material was have to determine whether withdrawal from prosecution could be said to be mala fide that is for irrelevant or extraneous reasons - Court are not satisfied that there is sufficient basis to come to such a conclusion particularly in view of two outstanding circumstances namely that only four out of twenty five cases have been withdrawn and complainant himself had acknowledged title of Town Improvement Trust to lands and Trust had not only returned lands to complainant but also paid him compensation for demolished buildings in interest of all parties in town - Court therefore dismiss Special Leave Petition - Orders Accordingly.

JUDGMENT

CHINNAPPA REDDY, J.:— A cocktail of law and politics, reason and caution extravagance is the only way we can describe the submissions made to us in these two cases. Well known personalities are involved, in one case an Ex-Central Minister, the present Governor of a State and some leading journalists, and in the other, an ex-Central Minister, and a host of Government officials- perhaps that was responsible for the passion and the tension which appeared to characterise and sometime mar the arguments in the two cases.

2. We will first take up for consideration Criminal Appeal No. 287 of 1979.

3. In exercise of the powers conferred by S. 196 (1) (a) of the Code of Criminal Procedure 1973, and S. 7 of the Explosive Substances Act, 1908, the Government of India by its order dated September 6, 1976 accorded sanction for the prosecution of George Mathew Fernandes alias George Fernandes and 24 others for alleged offences under Ss. 121-A, Indian Penal Code, 120-B, Indian Penal Code read wit Ss. 4, 5 and 6 of Explosive Substances Act, S. 5 (3) (b) and Section 12 of the Indian Explosives Act, 1884. The first paragraph of the order according sanction set out the object of the conspiracy in the following words:

"Whereas, it is alleged that after the issue of the proclamation of Emergency on 25th June, 1975 by the President of India in exercise of the powers conferred by clauses (1) of Article 352 of the Constitution, George Mathew Fernandes alias George Fernandes, Chairman of Socialist Party of India and Chairman of All India Railwaymens Federation sought to arouse resistence against the said emergency by declaring that the said emergency had been "clamped" on the country by the "despotic rule" of Smt. Indira Gandhi, Prime Minister of India and to entertain in idea that a conspiracy be hatched with the help of the persons of his confidence, to over-awe the Government and in pursuance of the conspiracy do such acts which might result in the destruction of public property and vital installations in the country."

Thereafter the order set out the various acts committed by the several accused persons in pursuance of the objects of the conspiracy. On September 24, 1976 the Deputy Superintendent of Police, Special Police Establishment, Central Bureau of Investigation, Central Investigation Unit (A), New Delhi, filed a charge sheet in the Court of the Chief Metropolitan Magistrate, Delhi against the said accused persons for the offences mentioned in the order sanctioning the prosecution. Two of the accused persons had been tendered pardon. They had, therefore, to be examined as witnesses in the Court of the Magistrate taking cognizance of the offences notwithstanding the fact that the case was exclusively triable by the Court of Session. The evidence of the approvers was recorded on March 22, 1977 and the case was adjourned to March 26, 1977 for further proceedings. At that stage, on March 26, 1977, N. G. Mathur, Special Public Prosecutor filed an application under Section 321 of the Criminal Procedure Code, 1973, for permission to withdraw from the prosecution, The application was as follows:

"It is submitted on behalf of the State as under:-

1. That on 24-9-76 the Special Police Establishment after necessary investigation had filed a charge-sheet in this Honble Court against Shri George Mathew Fernandes and 24 others for offences under Ss. 121-A, I.P.C., 120B I. P. C. r/w. Sections 4, 5 and 6 of the Explosive Substances Act, 1908 and Sections 5 (3) (b) and 12 of the Indian Explosives Act, 1884 as well as the substantive offences.

2. That besides the accused who were sent up for trail two accused namely Shri Bharat C. Patel and Rewati Kant Sinha were granted pardon by the Honble Court and were examined as approver under S. 306 (4), Cr. P. C.

3. That out of 25 accused sent up for trial cited in the charge-sheet, 2 accused namely Ladli Mohan Nigam and Atul Patel were declared proclaimed offenders by the Honble Court.

4. That in public interest and c

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1980 Supreme(SC) 249

Cases Referred (6)