PETITIONER:
R.M TEWARI, ADVOCATE
Vs.
RESPONDENT:
STATE (NCT OF DELHI) & ORS.
DATE OF JUDGMENT: 20/02/1996
BENCH:
VERMA, JAGDISH SARAN (J)
VENKATASWAMI K. (J)
CITATION:
1996 AIR 2047 1996 SCC (2) 610
JT 1996 (2) 657 1996 SCALE (2)389
ACT
HEADNOTE
JUDGMENT
AND CRIMINAL APPEAL No. 250 OF 1996 ------------------------------- (arising out of Special Leave Petition (Crl.) No 701 of 1995) Govt. of N.C.T., Delhi V. Judge, Designated Court II (TADA)
AND CRIMINAL APPEAL NO. 251 OF 1996 ------------------------------ (arising out of Special Leave Petition (Crl.) No. 1268 of 1995) Mohd. Mehfooz V. Chief Secretary & Anr.
JUDGMENTJ. S. VERMA. J. :
Leave granted in special leave petitions.
In Kartar Singh etc. vs. State of Punjab etc., (1994) 3 SCC 569, the Constitution Bench while upholding the constitutional validity of the provisions in the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "the TADA Act") except Section 22 therein, noticed the general perception that there was some misuse of the stringent provisions by the authorities concerned. To prevent any possible misuse of the stringent provisions, the Constitution Bench suggested a strict review of these cases in its observations made as under :
"In order to ensure higher level of
scrutiny and applicability of TADA
Act, there must be a screening
Committee or a Review Committee
constituted by the Central
Government consisting of the Home
Secretary, Law Secretary and other
secretaries concerned of the
various Departments to review all
the TADA cases instituted by the
Central Government as well as to
have a quarterly administrative
review, reviewing the States’
action in the application of the
TADA provisions in the respective
States, and the incidental
questions arising in relation
thereto. Similarly, There must be a
Screening or Review Committee at
the State level constituted by the
respective States consisting of the
Chief Secretary, Home Secretarys
Law Secretary,Director General of
Police (Law and Order) and other
officials as the respective
Government may think it fit, to
review the action of the enforcing
authorities under the Act and
screen the cases registered under
the provisions of the Act and
decide the further course of action
in every matter and so on."
( at page 683 )
It appears that in compliance with the above observations of this Court in Kartar Singh (supra), a Screening Committee or a Review Committee was constituted by the Government in several States including Delhi. A High Power Committee under the Chairmanship of the Chief Secretary of Delhi reviewed the prosecutions made under the TADA Act and the Government of Delhi conveyed its approval to the Director of Prosecution, Delhi for deletion of the charges under the TADA Act in the specified criminal cases pending before the Designated Court. The learned Special Additional Public Prosecutor filed applications in the Designated Court for withdrawal of charges under the TADA Act in all those cases pending in the Desionated Court. It appears that the only reason assigned for withdrawal of charges under the TADA Act by the learned Public Prosecutor was the recommendation of the High Power Committee which was constituted to review the cases in accordance with the observations of this Court in Kartar Singh. The Deasignated Court dismissed those applications taking ths view that administrative decisions cannot interfere with the working of the judicial system. Apparently, the view taken is that a mere administrative decision taken on the basis of the recommendation of the Review Committee is not sufficient to permit withdrawal of a criminal prosecution pending in a court of law.
The appeals by special leave challenge the orders of the Designated Court and the writ petition by an advocate, in public interest, is for a direction to the Designated Court to permit withdrawal of all prosecutions recommended by the Review Committee.
The scope of Section 321 of Code of Criminal Procedure, 1973 (Cr P.C.) dealing with withdrawal from prosecution is settled by decisions of this Court. In State of Orissa vs. Chandrika Mohapatra and Others, (1976) 4 SCC 250, the scope was indicated as under :
"Now the law as to when
consent to withdrawal of
prosecution should be accorded
under Section 494 of the Code of
Criminal Procedure is well settled
as a result of several decisions
of this Court. The first case in
which this question came up for
consideration was State of Bihar v.
Ram Naresh Pandey, 1957 SCR 279 ...
It was pointed out by this Court in
that case that in granting consent
to withdrawal from prosecution the
court undoubtedly exercises
judicial discretion, but it does
not follow that the discretion is
to be exercised only with
reference to material gathered by
the judicial method. . ...."
( at pase 252 )
"It will, therefore, be seen
that it is not sufficient for the
Public Prosecutor merely to say
that it is not expedient to proceed
with the prosecution. He has to
make out some ground which would
show that the prosecution is sousht
to be withdrawn because inter alia
the prosecution may not be able to
produce sufficient evidence to
sustain the charge or that the
prosecution does not appear to be
well-founded or that there are
other circumstances which clearly
show that the object of
administration of justice would not
be advanced or furthered by going
on with the prosecution. The
ultimate guiding consideration must
always be the interest of
administration of justice and that
is the touchstone on which the
question must be determined whether
the prosecution should be allowed
to be withdrawn."
( at Page 253 ) In Sheonandan Paswan vs. State of Bihar & Others, [1983] 2 SCR 61, it was reiterated as under :
"From the aforesaid enunciation of
the legal position governing the
proper exercise of the power
contained in s. 321, three or four
things become amply clear. In the
first place though it is an
executive function of the Public
Prosecutor for which statutory
discretion is vested in him, the
discretion is neither absolute nor
unreviewable but it is subject to
the Court’s supervisory function.
In fact being an executive function
it would be subject to a judicial
review on certain limited grounds
like any other executive action,
the authority with whom the
discretion is vested "must
genuinely address itself to the
matter before it, must not act
under the dictates of another body
must not do what it has been
forbidden to do, must act in good
faith, must have regard to all
relevant considerations and must
not be swayed by irrelevant
considerations, must not seek to
promote purposes alien to the
letter or to the spirit of the
legislation that gives it power to
act and not must act arbitrarily or
capriciously ... These several
principles can conveniently be
grouped in two main categories :
failure to exercise a discretion,
and excess or abuse of
discretionary poser. The two
classes are not, however, mutually
exclusive." (vide de Smith’s
Judicial Review of Administrative
Action 4th Edition pp. 285-86)."
( at pages 81-82 )
"Fourthly, the decision in R.K.
Jain’s case (supra) clearly shows
that when paucity of evidence or
lack of prospect of successful
prosecution is the ground for
withdrawal the court has not merely
the power but a duty to examine the
material on record without which
the validity and propriety of such
ground cannot be determined. ’
(at page 83)
It is, therefore, clear that the Designated Court was right in taking the view that withdrawal from prosecution is not to be permitted mechanically by the court on an application for that purpose made by the Public Prosecutor. It is equally clear that the Public Prosecutor also has not to act mechanlcally in the discharge of his statutory function under Section 321 Cr.P.C. on such a recommendation being made by the Review Committee; and that it is the duty of the Public Prosecutor to satisfy himself that it is a fit case for withdrawal from prosecution before he seeks the consent of the court for that purpose.
It appears that in these matters, the Public Prosecutor did not fully appreciate the requirements offection 321 Cr.P.C. and made the applications for withdrawal from prosecution only on the basis of the recommendations of the Review Committee. It was necessary for the Public Prosecutor to satisfy himself in each case that the case is fit for withdrawal from prosecution in accordance with the settled principles indicated in the decisions of this Court and then to satisfy the Designated Court of the existence of a ground which permits withdrawal from prosecution under Section 321 C P Cr .
It would now be open to the Public Prosecutor to apply for withdrawal from prosecution under Section 321 Cr.P C in accordance with law on any ground available according to the settled principles; and on such an application being made, the Designated Court would decide the same in accordance with law.
The observations in Kartar Sinsh have to be understood in the context in which they were made It was observed that a review of the cases should be made by a High Power Committee to ensure that there was no misuse of the stringent provisions of the TADA Act and any case in which resort to the TADA Act was found to be unwarranted, the necessary remedial measures should be taken. The Review Committee is expected to perform its functions in this manner. If the recommendation of the Review Committee, based on the material present, is,that resort to provisions of the TADA Act is unwarranted for any reason which Permits withdrawal from prosecution for those offences, a suitable application made under Section 321 Cr.P.C. on that ground has to be considered and decided by the Designated Court giving due weight to the opinion formed by the Public Prosecutor on the basis of the recommendation of the High Power Committee.
It has also to be borne in mind that the initial invocation of the stringent provisions of the TADA Act is itself subject to sanction of the Government and, therefore, the revised opinion of the Government formed on the basis of the recommendation of the High Power Committee after scruting of each case should not be lightly disregarded by the court except for weighty reasons such as malafides or manifest arbitrariness. The worth of the material to support the charge under the TADA Act and the evidence which can be produced, is likely to be known to the prosecuting agency and, therefore, mere existence of Prima facig material to support the framing of the charge should not by itself be treated as sufficient to refuse the consent for withdrawal from prosecution. It is in this manner an application made to withdraw the charges of offences under the TADA Act pursuant to review of a case by the Review Committee has to be considered and decided by the Designated Courts.
The applications made under Section 321 Cr.P.C. not having been decided on the basis indicated above, fresh applications made in all such cases pursuant to the recommendations of the Review Committee or the revised opinion of the Government have to be considered and decided by the Designated Courts in the manner indicated above.
By an order dated 4.5.1995 made by this Court in these matters, it was directed that the Designated Court would consider the bail applications of all accused persons in respect of whom a prayer had been made for withdrawal of charges framed under the provisions of the TADA Act on merits in accordance with law, after excluding from consideration the accusation relating to charges under the provisions of the TADA Act. The bail granted to all such accused persons pursuant to that order would continue till conclusion of the trial in each case.
The writ petition and the appeals are disposed of accordingly.