Factual Background
1. Leave granted.
2. The appeals arise out of a judgment of a Single Judge of the High Court of Kerala dated 12 March 2021. The High Court in the exercise of its revisional jurisdiction under Section 397 of the Code of Criminal Procedure, 19731 upheld the order of the Chief Judicial Magistrate2 , Thiruvananthapuram declining to grant permission to the Public Prosecutor to withdraw the prosecution of the first to sixth respondents under Section 321 of the CrPC.
3 On 13 March 2015, the then Finance Minister was presenting the budget for the financial year 2015-2016 in the Kerala Legislative Assembly. The respondent-accused, who at the time were Members of the Legislative Assembly4 belonging to the party in opposition, disrupted the presentation of the budget, climbed over to the Speaker’s dais and damaged furniture and articles including the Speaker’s chair, computer, mike, emergency lamp and electronic panel, causing a loss of Rs. 2,20,093/-. The incident was reported to the Museum Police Station by the Legislative Secretary. Crime No. 236 of 2015 was registered under Sections 447 and 427 read with Section 34 of the Indian Penal Code 1860 and Section 3(1) of the Prevention of Damage to Public Property Act 1984. On the completion of the investigation, the final report under Section 173 of the CrPC was submitted and cognizance was taken by the Additional CJM, Ernakulam of the said offences.
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7. While dismissing the petition, the High Court observed that the application under Section 321 of the CrPC had been rejected by the CJM for valid reasons. However, the High Court did not find any “justification for the presumption in the order that the petition was filed without good faith and on extraneous influence”.
8. The State of Kerala and the respondent-accused have filed independent SLPs against the order of the High Court before this Court.
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Issues and Analysis
12. Having adverted to the submissions of the parties, we shall now turn to the issues raised before this Court. The question before this Court is centred on the exercise of power by the Public Prosecutor under Section 321 and the exercise of jurisdiction by the CJM. Before assessing the submissions of the parties, we find it necessary to discuss the position of the law on this point.
Withdrawal of prosecution
13. Section 321 of the CrPC reads as follows:
“321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence-
(i) was against any law relating to a matter to which the executive power of the Union extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.”
14. The powers under Section 321 of the CrPC have been interpreted by this Court on a number of occasions. In State of Bihar vs Ram Naresh Pandey & Anr [AIR 1957 SC 389], a three-judge Bench of this Court analysed Section 494 of the earlier Code of Criminal Procedure 1898 (similar to Section 321 of the CrPC). Justice B. Jagannadhadas observed that in granting consent to withdraw a prosecution, the court exercises a judicial function. However, in doing so, the court need not determine the matter judicially. The court only needs to be satisfied 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”. This Court also observed that the Magistrate’s power under Section 494 was to prevent abuse of power of the executive. Addressing the question of whether insufficiency of evidence is a ground for withdrawal of prosecution, the Court held that:
“9. […] we find it difficult to appreciate why the opinion arrived at by both the trial court and the Sessions Court that the view taken of that material by the Public Prosecutor viz. that it was meagre evidence on which no conviction could be asked for, should be said to be so improper that the consent of the Court under Section 494 of the Code of Criminal Procedure has to be withheld. Even the private complainant who was allowed to participate in these proceedings in all its stages, does not, in his objection petition, or revision petitions, indicate the availability of any other material or better material. Nor, could the complainant’s counsel, in the course of arguments before us inform us that there was any additional material available. In the situation, therefore, excepting for the view that no order to withdraw should be passed in such cases either as a matter of law or as a matter of propriety but that the matter should [b]e disposed of only after the evidence is judicially taken, we apprehend that the learned Chief Justice himself would not have felt called upon to interfere with the order of the Magistrate in the exercise of his revisional jurisdiction.”
(emphasis supplied)
15. In M.N Sankarayaraynan Nair vs P.V Balakrishnan [(1972) 1 SCC 318], this Court held that the powers conferred on the Prosecutor under Section 494 of the Code of Criminal Procedure 1898 are to be exercised in “furtherance of the object of law”. On the power of the court to grant consent, Justice P. Jaganmohan Reddy observed that
“8. […] The Court also while considering the request to grant permission under the said section should not do so as a necessary formality — the grant of it for the mere asking. It may do so only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain.” (emphasis supplied).
16. In Rajender Kumar Jain vs State through Special Police Establishment and Ors [(1980) 3 SCC 435], there was an application for the withdrawal of the prosecution against Mr George Fernandes, Chairperson of the Socialist Party of India. Mr Fernandes had been accused of rousing resistance against the Emergency imposed in 1975 and of participating in a conspiracy to do acts which may have resulted in the destruction of property. After the Emergency was revoked, the Special Public Prosecutor filed an application under Section 321 of the CrPC ‘in view of the changed circumstances and public interest’. Given the political background of the dispute, a two judge bench of this Court, speaking through Justice O. Chinnappa Reddy highlighted the importance of the independence of the Public Prosecutor in exercising the power under Section 321 of the CrPC. In the context of a withdrawal of prosecution where matters of public policy are involved, the Court held that:
“………………….”
Thus the fact that the withdrawal was initiated by the government was held not to vitiate the application, so long as the Public Prosecutor had independently applied his mind. Elaborating on the scope of withdrawal on the ground of public justice, and in particular the ambit of the expression ‘political offence’, the Court held:
“……………….”
17. The locus classicus on the interpretation of the powers conferred by Section 321 of the CrPC is the decision of the Constitution Bench in Sheonandan Paswan (supra). In this case, the Board of Directors of the Patna Urban Cooperative Bank was charged with misdemeanours such as misappropriation of the funds of the bank by giving multiple loans to the same person under different names and approving loans for fictitious persons. The Registrar of Cooperative Societies at the instance of the Reserve Bank of India directed legal action to be initiated against the stakeholders. On investigation, statements were made against Dr Jagannath Mishra, the ex-Chief Minister of Bihar, and it was alleged that he misused his office and made illegal personal gains for himself while holding office of the Chief Minister. A charge sheet was filed and the CJM took cognizance of the matter. However, before the case could progress further, Dr Mishra once again took oath as the Chief Minister of Bihar and a communication was issued by the Government that it had decided to withdraw the case. A withdrawal application was filed by the Public Prosecutor on grounds of lack of evidence, implication due to political vendetta, and that the prosecution would be against public policy and public interest. The CJM gave consent for the withdrawal, and the High Court affirmed the order of the CJM.
18. When the matter came up before this Court, the appeal was dismissed by a 2:1 majority. A review petition was allowed, and the scope of Section 321 of the CrPC was addressed by a Constitution Bench. Chief Justice Bhagwati in his minority opinion held that in a case where a withdrawal petition has been filed on the ground of paucity of evidence, after the charge sheet has been filed but before the charge has been framed in a warrant case, the exercise of power by the court granting consent is similar to the power of the court to discharge the accused under Section 239 of the CrPC20. Hence, in such cases, it would not be competent for the public prosecutor to file a withdrawal petition unless there is material change in the evidence. The Chief Justice was of the opinion that the court must take up the exercise of discharge in such cases since it would carry greater conviction with the people. He observed:
“………………………….”
19 Justice Khalid (speaking for himself and Justice Natarajan) rendered the majority opinion holding that the power of the court to grant consent for a withdrawal petition is similar to the power under Section 320 of the CrPC to compound offences. The court in both the cases will not have to enquire into the issue of conviction or acquittal of the accused person, and will only need to restrict itself to providing consent through the exercise of jurisdiction in a supervisory manner. It was held that though Section 321 does not provide any grounds for seeking withdrawal, “public policy, interest of administration, inexpediency to proceed with the prosecution for reasons of State, and paucity of evidence” are considered valid grounds for seeking withdrawal. Further, it was held that the court in deciding to grant consent to the withdrawal petition must restrict itself to only determining if the Prosecutor has exercised the power for the above legitimate reasons:
“………………..”
The Court also held that while granting or denying consent to a withdrawal petition, the court is not to review the purported grounds warranting withdrawal that the public prosecutor has provided, but must only make sure that it is for a legitimate purpose, initiated without mala fides.
20. Both, Justice Khalid in his majority opinion and Justice Venkataramiah (as the learned Chief Justice then was) in his concurring opinion, held that this Court must be circumspect in interfering with the concurrent findings of the courts below, allowing or dismissing the withdrawal petition. Highlighting that this Court is not a court of facts and evidence it was observed:
“89. An order passed under Section 321 comes to this Court by special leave, under Article 136 of the Constitution of India. The appeal before us came thus. It has been the declared policy of this Court not to embark upon a roving enquiry into the facts and evidence of cases like this or even an order against discharge. This Court will not allow itself to be converted into a court of facts and evidence. This Court seldom goes into evidence and facts. That is as it should be. Any departure from this salutary self-imposed restraint is not a healthy practice and does not commend itself to me. It is necessary for this Court to remember that as an apex court, any observation on merits or on facts and evidence of a case which has to go back to the courts below will seriously prejudice the party affected and it should be the policy of this Court not to tread upon this prohibited ground and invite unsavoury but justifiable criticism. Is this Court to assess the evidence to find out whether there is a case for acquittal or conviction and convert itself into a trial court? Or is this Court to order a retrial and examination of hundred witnesses to find out whether the case would end in acquittal or conviction? Either of these conclusions in the case is outside the scope of Section 321. This can be done only if we rewrite Section 321.” (emphasis supplied).
21. The decision in Sheonandan Paswan (supra) has held the ground since then. An instance of its application was when this Court dealt with the withdrawal of prosecution of an MLA for offences involving misappropriation of public money. In Yerneni Raja Ramchandar vs State of Andhra Pradesh & Ors. [(2009) 15 SCC 604], the appellant, an MLA, was accused of fabricating hospital records to repeatedly claim medical reimbursement for a sum of Rs. 2,89,489, Rs. 1,33,939, and Rs. 1,22,825 from the Government. Amounts of Rs. 289,489, Rs. 60,000 and Rs. 60,000 were sanctioned by the Government time and again in response to these requests. Charges of misappropriation were levelled against him. Since the appellant was an MLA, the matter was referred to the Ethics Committee of the Legislative Assembly, where the appellant tendered an apology and refunded Rs. 60,000 to the Government. Pursuant to this, the Ethics Committee recommended a withdrawal of the prosecution against the appellant. The State Government also issued an order requiring the District Collector to direct the Prosecutor to withdraw the case. Multiple applications for withdrawal of prosecution were made, which were dismissed by the Magistrate. These, however, were ultimately allowed by the High Court. In refusing to allow the withdrawal of the prosecution against the appellant, this Court opined that in view of decision in Sheonandan Paswan (supra), the power of judicial review of the High Court was limited. It could have only interfered if there was an error of law committed by the Magistrate. Further, the Court also considered the implication of the disciplinary action taken by the Ethics Committee of the Legislative Assembly on the withdrawal of prosecution under Section 321 of the CrPC. Justice SB Sinha, speaking for the two-judge Bench, held that
“…………………………………………”
22. In offences involving the violation of public trust by executive or legislative authorities, this Court has evaluated the gravity of the offence and the impact of the withdrawal of prosecution on public life. In Bairam Muralidhar vs State of Andhra Pradesh22, the Prosecutor was seeking a withdrawal of the prosecution against a police officer who had been accused of demanding a bribe in exchange of not implicating a particular individual for an offence of kidnapping and for reducing the charges against the individual’s son. The police officer was accused of offences under Sections 7 and 13(1) of the Prevention of Corruption Act 1988. An application under Section 321 of the CrPC was filed by the Prosecutor based on the fact that the Government had issued an order for withdrawal of prosecution against the officer given his meritorious service and directed that his case be placed before the Administrative Tribunal for disciplinary proceedings. This Court affirmed the concurrent findings of the High Court and the Trial Court and rejected the application for withdrawal. Justice Dipak Misra (as he then was), speaking on behalf of the two judge Bench, held that
“……………………………”
23 The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:
(i) Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;
(ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;
(iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;
(iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons;
(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:(a) The 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;
(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;
(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;
(d) The grant of consent sub-serves the administration of justice; and
(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;
(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and
(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well-settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent.
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MLAS CANNOT BE REMOVED BY THE SANCTION OF THE GOVERNMENT
64. A plain reading of Section 197 of the CrPC clarifies that it applies only if the public servant can be removed from office by or with the sanction of the government. However, MLAs cannot be removed by the sanction of the government, as they are elected representatives of the people of India. They can be removed from office, for instance when disqualified under the Xth Schedule of the Constitution for which the sanction of the government is not required. Further, sanction under Section 197 is only required before cognizance is taken by a court, and not for the initiation of the prosecution.
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Inadmissibility of the video recording as evidence
83. Mr Ranjit Kumar, learned Senior counsel, has urged before us that the video recording was not obtained by the investigating authorities with the sanction of the Speaker. He has submitted that the video recording belongs to the Electronic Record Room of Assembly and as the custodian of the House, the permission of the Speaker is necessary to access this video recording. It was also submitted that the video recording lacks the certification required for admissibility of evidence.
84. We do not believe that this submission is relevant and merits consideration by this Court in an application for withdrawal of prosecution under Section 321 of the CrPC. In our opinion, the High Court has correctly observed that questions of insufficiency of evidence, admissibility of evidence absent certifications etc., are to be adjudged by the trial court during the stage of trial. As held by the Constitution Bench of this Court in Sheonandan Paswan (supra), it is not the duty of this Court, in an application under Section 321 of the CrPC, to adjudicate upon evidentiary issues and examine the admissibility or sufficiency of evidence.
85. For the reasons indicated above, we have arrived at the conclusion that there is no merit in the appeals.
The appeals shall accordingly stand dismissed.
PARTY: The State of Kerala vs. K. Ajith & Ors Criminal Appeal No 697 of 2021 @ SLP (Crl) No 4009 of 2021 – July 28, 2021.
https://main.sci.gov.in/supremecourt/2021/11510/11510_2021_35_1501_28812_Judgement_28-Jul-2021.pdf
