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BALWANT SINGH & ORS.
_v._
STATE OF BIHAR
_October_ 4, 1977
B [V. R. KrusHNA IYER, JASWANT SINGH AND D. A. DESAI, JI.}
_''Nolle prosequi"-Withdrawal from the vro!ecution_ _ul s._ 321 _o/_ t~ _Crinilnal_
_Procedure Code_ ( _Act_ _fl_ _of_ 1974), 1973 (1898 _Code, sec._ 494), _scQpt_ _of-_
_Duties_ _of_ _the court, the State and the Public Prosecutor, explained._
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The public prosecutor, in charge of a criminal case where charges had
already been framed and pending before a Magistrate in tho State of Bihar,
was directed by the magistrate to withdraw the case at the instance of the State
Criminal Intelligence Department on the ground that a second investigation
made by the Police in the said matter was truer than the first which proved to
be false. The Public Prosecutor acted on the direction and withdrew the case.
Unable to get the relief from the High Court, the petitioners moved tlu! Court
for grant of special leave to appeal. Refu5ing the leave, the Court,
HELD : ( 1) The sole consideration for the Public Prosecutor when he
decides to withdraw from the prosecution is the larger factor of the administration of ju'stice--not political favours nor party pressures nor like concerns. The
interests of public justice being the paramount consideration they n1ay transcend
and overflow the legal justice of the particular litigation. [605AB]
(2) Justice ordinarily demands that every case must reach its destination,
not interrupted _en route._ If some policy consideration bearing on the administration of justice justifies withdrawal, the court may accord J?Crmission; not if
no public policy bearing on the admini8tration of justice 1s involved. The
court has to be vigilant when a case bas been pending before it and not succumb
to executive suggestion made in the form of application for withdrawal with a
bunch of papers tacked on. [606-B-C]
(3) The statutory responsibility for deciding upon withdrawal squareiy rests
on the Public Prosecutor. It is non-negotiable and cannot be bartered away in
favour of those who may be above him on the administration side. The Criminal Proeedure Code is the only master of the Public Prosecutor and he **has** **to**
guide himself with reference to Criminal Procedure Code only. So,guided, the
consideration which must weigh with him is whether the broader cause of public
justice will be advanced or retarded by the withdrawal or continuance ot' the,
prosecution. [605E-F]
( 4) It may be open to a District Magistrate to bring to the notice _ot_ the
public prosecutor materials and suggest to him to consider whether the **prosecu-**
tion should be withdrawn or not. He cannot command where he can only
commend. In the instant case (a) ordering the public prosecutor to move for
withdrawal was not proper for a District Magistrate to do. It is not proper to
have the Public Prosecutor ordered about; (b) The Public Prosecutor obeyed
and not acted in the instant case and, therefore, the statutory responsibility
vested in him was not properly exercised; (c) the surrender of di!l:cretion by the
Public Prosecutor and the Magistrate are unfortunate; and (d) the State !hould
not stultify the court by first stating that there is a true case to be tried and then
make a _volte face_ to the effect that on a second investigation the case has been
discovered to be false. [605G-H, 606A, C, DJ
CRIMINAL APPELLATE JURJSDICATION : Special Level Petition
(Cr!.) No. 863 of 1977.
H From the Judgment and Order dated 28-3-1977 of the Patna High
Court in Cd. Misc. No. 824 of 1977.
tS. _K._ _Sinha_ for the Petitioners.
BALWANT SINGH _v._ BIHAR _(Krishna Iyer,_ _!.)_ 605
The Order of the Court was delivered by
KRISHNA IYER, J. We are not inclined to grant leave [or reasons
which we may indicate briefly so that similar error may not be committee! later.
The sole consideration ·far the Public Prosuutor when he decides to withdraw from a prosecution is the larger factor of the administration of justice-not political favours nor party pressures nor like
concerns. 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 oil 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
~nnotation may perhaps warrant withrlrawal from the prosecution.
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Other instances also may. be given where public justice may be served
by withdrawal even apart from the merits of the case. In the
present case, the situation is totally different. Here is an ordinary
criminal case where the first informant gave information to the police,
investigation followed and charge sheet was filed. Thereafter, the
learned magistrate who tried the case framed charges. Somehow---by
a suspiciously mysterious process---the State Criminal Intelligence
Department went into the veracity of the prosecution story by a second
investigation. At that"time the criminal case was already pending
and the Magistrate was seized of the case. There was no reason for
the police to start off on a second investigatory course: Morever,
the District Magistrate, on a report from the Superintendent of Police
examined the matter and satisfied himself that the second investigation
was truer than the first and therefore came to the conclusion that the
case which the police brought before the Court was a false one and
directed the Public Prosecuter to withdraw from the case. The
statutory responsibility for deciding upon withdrawal squarely vests
on the public prosecutor. It is non-negotiable and cannot be bartered
away in favour of those who may be above him on the administrative.
side. The Criminal Procedure <;ode is the only matter of the public
prosecutor and he has to gujde himself with reference to Criminal
Procedure Code only. So guided, the consideration· which must
weigh with him is, whether the broader cause of public justice will be
advanced or retarded by the withdrawal or continuance of the prose·
cution. _As_ we have already explained, public justice may be a much
wider conception than the justj.ce in a particular case. Here the
#### Public Prosecutor is ordered to move for withdrawal. This i; not
proper for a ~istrict Magistrate to do. Indeed, it is not proper to
have the public prosecutor ordered about. It is entirely within the
discr.etion of the. public prosec_ntor. It may be open to the District
Magistrate to bnng to the notice of the Public Prosecutor materials
a~d suggest to him to consider whether the prosecution should be
withdrawn or ~ot. . He cannot command where he can only com
mand. .In tlus case, the facts clearly bring out that the P 11 b]ic
Pr<;secutor ob_eye~ and not acted, and therefere the statutory responsib1hty. vested m hnn was not properly exercised. Tf he comes to
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SUPREME COURT REPORTS [1978] 1 s.c.R.
606
the conclusion, on the materials passed on to him that the
case deserves to be withdrawn, he may initiate action in that behalf.
Likewise, the Court's ocder in this case is a puzzle to us. The order
says that records have been perused by the court; the District Magistrate has directed the Public Prosecutor; the Public Prosecutor has
diuly obeyed and the District Magistrate has also mentioned that the
Superintendent of Police has repocted to him. "to withdraw the case'.
The independent judgment brought to bear on the desirability or
otherwise of acconling permission is nil. What is curious _is_ that the
Public Prosecutor says that the Court encores that public policy is
not involved in this case for the administration of justice. That must
be reason why the law must run its course. For justice ordinarily
demands that every case must reach its destination, not interrupted
_en_ _route._ If some policy consideration bearing on the administration of justice justifies withdrawal, the court may accord permission;
not if no public policy bearing 011 the administration of justice is involved. We think that surrender of discretion by the Public Prosecutor and the Magistrate are unfortunate. The court has to be vigilant when a case has been pending before it and not succumb to executive suggestion made in the form of application for withdrawal with
a bunch of papers tacked on. Moreover, the State should not stultify
the court by first stating that there is a true case to be tried and then
make a _volte face_ to the effect that on a second investigation the case
has been discovered to be false. In these circumstances, we refuse
leave.
S.R. _Leave refused._
