RAJENDRA KUMAR JAIN ETC. versus STATE THROUGH SPECIAL POLICE ESTABLISHMENT AND ORS. ETC. ETC.

Citation: [1980] 3 S.C.R. 982 · Decided: 02-05-1980 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Dismissed
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Judgment (excerpt)

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i.  : 
982 
RAJENDRA KUMAR JAIN ETC. 
v. 
STATE THROUGH SPECIAL POLICE ESTABLISHMENT 
AND ORS. ETC. ETC. 
May 2, 1980 
[V. R. KRISHNA IYER AND 0. CHINNAPPA REDDY, JJ.J 
Nolle Prost'iqui-Criminal Procedure Code, 1973 (Act II of 1974), Section 
321, scope of-Conditions under which withdrawal from prosecution are permis-
sible-Competency of the Magistrate's Court to permit withdrawal-Public Prose-
cutor in charge of the ca.re, meanin'g of-Political ofJences explained. 
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Section 321 of the Code of Criminal Procedure, 1973 which correspond& to 
section 494 of the 1898 cod'e provides for the withdtawal from prosecution by 
the Public Prosecutor or Assistoot Public Prosecutor incharge of a case with 
the consent of the Court at any time before the judgment is pronounced. In 
Criminal Appeal No. 287 /79, the case instituted against George Mathew 
Fernandes & others on 24-9-76 was allowOd to be withdrown on March 26, 1977 
on an application under section 321 of the Criminal Procedure Code, 1973 made 
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by N. S. Mathur Special Public Prosecutor. 
The learn'ed Chief Metropolitan 
Magistrate expressed his opinion that "it was expedient to accord consent to 
withdraw from the prosecution". 
A revision petition under section 397 of the 
Criminal Procedure Code, 1973 challenging the said order granting permission to 
. withdraw filed by ihe appellant an advocate in the High Court f:u1ed. The High 
Court also held that the appellant had no locus standL 
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Special Leave Petition (Cr!.) No. 31iS/79 was filed by one Manohar Lal 
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directly under Article 136 of the Constitution against the order of the Chief 
Judicial Magistrate, Bhiwani, permitting the public prosecutor to withdraw from 
tho prosecution in case No. 186-1 filed by the State aaainst Choudhury Bansilal 
Ex-Defence Minister, his son Surinder Singh, Ex. M.L.A., R. S. Verma, Ex. 
Deputy Commissioner, Bhiwani and several othets officials and non officials for 
a hos'.t of' offences. 
In Cr!. Appeal No. 287179, the Contentions were : (a) The Offence 
for 
which the accused persons were to be tried were exclusively triable by a 
Court of Session, and therefore, the Committing Magistrate had no 
jurisdic8 
tion to give consent to the Public Prosecutor to withdraw from the prosecu;.. 
tions; (b) The PUblic Prosecutor had abdicated his function and had filed the 
application at the behest of the Central 
Government without 
applying 
his 
mind; (c) The Magistrate was. in error in giving !'ODSent on the ground that. 
it was expedient to do so. Expedience was never for the judiciary; ( d) S. N. 
Mathur who had filed the application for withdrawal from the prosecution 
was not the Public Prosecutor incharge of the case and 
the 
application 
\Vas 
therefore incompetent. 
' 
· 
In the special leave (Cr!.) No. 3115179, it was contended : (i) the Pub-
lic Prosecutor filed the application at the behest of Sri Bhajan, Lal, the Chief 
Minister of Haryana and that he never applied his mind to the facts of the• 
case; (ii) Sri Bhajan Lal ordered the withdrawal of the Public Prosecutor from 
the prosecution because his ministry would not survive without ihe help of 
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R· K. JAIN V. STATE 
983 
Chaudhuri Bansi Lal :i:nu (tii) the withdrawal was not based on any public 
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policy. 
Dismissing the appeal by special leave and the special lec\ve petition, the) 
Court 
. 
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HELD : I. The contention that under the new code .of Criminal Procedure, 
l 973, the Court of Committing Magistrate had no iJldicial function to perform 
in rel:ition to the case which he was required to commit to the Court of Ses-
sion as W<l'S the position under section 494 of the 1898, and since the Court of 
the Committing Magistrate under the new ccxle was not · invested with: 
the 
power of acquitting or discharging the accused, it was not the Court which could 
grant its consent to withdraw from the prosecutioii is erroneous. In the fin;t 
place there is no warrant for thinking that only tha Court competent to discharge 
or acquit the accused under some other provision of the Code can exercise the 
power under s. 321 Criminal Procedure· Code. The power conferred by S. 321 
is itself a special power conferred on the Court before whom a prosecutiont is 
pending and the exercise of the power is not made dependent upon the power 
of the Court to acquit or discharge the accused under some other provision of; 
the Code. The power to discharge or acquit the accused under s. 321 is a 
special power fou
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