M. N. SANKARAYARAYANAN NAIR versus P. V. BALAKRISHNAN & ORS.

Citation: [1972] 2 S.C.R. 599 · Decided: 26-11-1971 · Supreme Court of India · Bench: P. JAGANMOHAN REDDY · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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599 
M. N. SANKARAYARAYANAN NAIR 
v. 
P. V. BALAKRISHNAN & ORS. 
November 26, 1971 
[P. JAGANMOHAN REDDY AND D. G. PALEKAR, JJ.] 
Code of Criminal Procedure (Act 5 of 1898), s. 494--Grant of per-
111ission to Public Prosecutor to withdra1v from prosecutior1r-Cri~ria. 
The respondents were committed to trial before the Sessions Court for 
offences of forgery, cheating, etc. They challenged the committal order 
but the High Court held that. there was a prima facie case. Thereafter, 
the trial judge split up the char&es and this was •!lain questioned but the 
High Court held that there was no illegality. The Public Prosecutor then 
applied under s. 494, Cr. P .C., under instructions from the Government, 
for J>\!rmission to withdraw from the prosecution, on the grounds, that the 
transaction relating to the offence arose out of a contract and was of a 
civil nature, that there had been enormous delay in proceeding with the 
trial, and that the securing the evidence of witnesses would involve heavy 
expense for the _State as the witnesses were in far off places. The trial 
judge gave the permission and the order was 
confirmed 
by the 
Hish 
Court. 
Allowing the appeal to this Court, 
HELD : 
(I) Section 494 of the Code is not in pari materia with 
s. 333 under which th•! Advocate General m'.ly enter a no/le prosequi at 
"ny sbge of a trial. It only gives power to the Public Prosecutor to with-
Jra\'; from the p'rosccution subject to the consent of the Court. Though the 
section is in genera] terms and does not circumscribe the powers of the 
Public· Prosecutor the essential consideration which is implicit in the grant 
of the power is that it should be exercised in the interests of justice which 
may be, tither that it may not be possible to produce sufficient evidence 
to sustain the charge, or that subsequent inform~tion before the prose~ 
cnting agency falsifies the pro!ccution evidence, or other similar circum-
stances depending on the facts 
and circumstances of each case. The 
power is subject to the permission of the Court and it is the duty of the 
Court to see· that the per1nission is not sought on grounds extraneous to 
the interests of justice or that offences against the State <lo not go un-
punished merely because the Government as a matter of general policy or 
expediency unconnecred with its duty to prosecute offenders directs a 
Public Prosecutor to withdraw from the prosecution and the Public Prose-
cutor merely do.es so ~t its behest. 
The 
c.~ourt, while considering the 
rcqll''8t to grant pzrmission. should not do so as a formality for the 
mere 
asking. It may grant 
permission only if it is 
satisfied on the 
materials placed before it that the grant of it subserves the administration 
of justice and that the permission was not sought. covertly with an ulterior 
rm11ose unconnected with the vindication of the law. [60'.1 E-H; 604 
A-D; 606 E] 
State of Bihar v. Ram Naresh Pandey, [1957] S.C.R. 279, followed. 
Deremlra Kumar Roy v. Syed Ya•r Bakht Choudhury & Ors. A.1 .R. 
1939 Cal. 220, The KinR v. Pamwnand & Ors., A.T.R. 1949 Pat. 222 and 
Dy. Accountant General (Admn.) Office of Accountant General, Kera/a 
Trivandrum v. State of Kera/a & Ors., A.I.R. 1970 Kerala 158. referred 
H 
to. 
(2) In the present case none of the grounds alleged or even 
their 
cumul~ive ~tfect would justify. the withdrawal from the. pros.ecution. 
[906 GJ 
600 
SUPREME COURT REPORTS 
[1972] 2 S.C.R. 
(a) It may be that \be acts of the respondents may make them both 
liable under the civil as well as the criminal laws. But that does not 
justify either the seekina of the permission to withdraw from the prose-
cution or the granting of it unless the matter before the criminal court is 
of a purely civil nature. The committal order and the judgments of the 
High Court at the prior two •!ages show that there was a prima facie case 
against the accused with respect to the charges framed against them. 
[906 G-H; 907 G-HJ 
(b) Neither the ground of delay nor the question of expenditure in-
volved by themselves, could be a proper ground for granting permission 
to the Public Prosecutor for withdrawing from the c-ase [60S B-C, F-0) 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
12 of 1969. 
Appeal by special leave from the judgment and order dated 
June 25, 1968 of the Kerala High Court in Criminal M.P. Nos. 
175, 177 and 179 of 1968. 
A. Sreedharan Nambyar, for the appellant. 
Lily Thomas, for respQil

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