LexBALWANT SINGH & ORS. versus STATE OF BIHAR
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604 A BALWANT SINGH & ORS. v. STATE OF BIHAR October 4, 1977 B [V. R. KrusHNA IYER, JASWANT SINGH AND D. A. DESAI, JI.} c D E F G ''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. 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 administra- tion 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 adminis- tration 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 Crimi- nal 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. • - . .J j 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 com- mittee! later. The sole consideration ·far the Public Prosuutor when he deci- des to withdraw from a prosecution is the larger factor of the adminis- tration of justice-not political favours nor party pressures nor like concerns. Of course, the interests of public justice being the par- amount 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
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