SUBHASH CHANDER versus STATE (CHANDIGARH ADMN.) & ORS.

Citation: [1980] 2 S.C.R. 44 · Decided: 15-11-1979 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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44 
SUBHASH CHANDER 
v. 
STATE (CHANDIGARH AD.MN.) & ORS. 
November 15, 1979 
(V. R. KRISHNA IYER AND R. 'S. PATHAK, JJ.] 
Criminal Procedure Code, Sections 321, 494-Scope of . 
. The petitioner alleged that his house had been burgled and lhat many 
valuable" were lost. 
"fhe police recovered the property. Eventually, charges 
were also framed by the trial court against two other persons who were said to 
be collaborators. 
During the pendency of the criminal case, the Asstt. Public Pr0$CCUlor 
applied for withdrawal from prosecution under section 321, Cr. P.C. on the 
ground that on fresh investigation by a senior officer the alleged search and 
seizure were discovered to be a frame-up by the concerned police officer in ordcc 
to pressurise the accused to withdraw a certain civil litigation. The court re.-
quired a fuller application, the Assistaot Public Prosecutor made a fresh and 
more detailed petition for withdrawal which was eventually granted by tho trial 
court, 
dc.<:pit·~ the petitioner's remonstrance that the withhrawal wa · prompLed 
by politic.al 111fiuencc wielded by the jeweller leading to instn1ctions. from high 
quarters to the Assistant Public Prosecutor to withdraw from the case concerning 
that accn~f'(f. It wai; a·l1eged that the Assistant Publi,. Pro"ecutor did not apply 
.., independent mind in carrying out the said instructions. The trial c"'1tt 
nevertheless accepted the request of the Assistaot Public Prosecutor and direi:ted 
ocqllittal of 1)le jeweller, while continuing the case against the remaining two 
accused.. Tue order was unsuccessfully assailed in revision before the 
Jligh 
Court by the petitioner. 
By special leave to appeal under Article 136 of the Constitution, ii was 
argued on behalf of the petitioner that (i) a case which pends in court cannot 
be subject to a second police investigation without the judge even 
knowing 
about it, (ii) political considerations of the Executive vitiate the motion for 
~ 
\Vithdrawal of pending proceeding, and (iii} the District Magistrate's order to 
withdra\V from a casl! co1nmunicated to the Public Prosecutor and carried out 
by him, is co.alpliance with section 494. 
G 
ll 
Disn1issing the petition, 
IIELD : When a crime is committed, the assessment of guilt and the award 
of punishment or, alternatively, the discharge or acquittal of the accused are 
part of the criminal justice process administered by the courts of the land. 
It is not the function of the executive to administer criminal justice and in our 
system, judges are not fungible. 
[47 A] 
When a case is pending in a criminal court, its procedure and progress are 
governed bv the Criminal Procedure Code or other relevant statute. To inter-
cept and recall an enquiry or trial in a court, save in the manner and to the 
extent provided for in the law, is itself a violation of the law. Whatever needs 
to be done must be done in aecordance with the law. The function of adminis-
tering justice, under our constitutiona1 order, belongs to those entrusted with 
judicial power. 
One of the few exceptions to the uninterrupted flow of the 
." 
SUBHASH CHANDER V. STATE 
45 
<:amt'& process is section 321, Cr. P.C. But even here it is the Public Prose-
cutor and not any executive anthority, who is entrusted by the Code with the 
.~er to withdraw from a prosecution, and that also with the consent of the 
court. To interdict, intercept or_ jettison an enquiry or trial in a court, save 
in the manner and to the extent provided for iu the Code itself, is lawlessness. 
The even course of criminal justice cannot be thwarted by the executive, how-
ever hieh the accused, however sure· Government feels a caise is false, however, 
unpalatable the continuance of the prosecution to the powers-that-be who wish 
to scuttle COll1'! justice because of hubris, affection or other noble or ignoble 
. consideration. Among the very few exception to this uninterrupted How of the 
.court process is section 494, Cr. P.C. Even here, the Public Prosecutor is 
entrusted by the Code with a limited power to withdraw from a prosecution with 
the court's consent whereupon the case comes to a close. What the law has 
ignited, the law alone shall extinguish. 
[47 D-H, 48 A] 
The promotion ,of law and order is an aspect of public justice. Grounds of 
·public policy may· call for withdrawal of a prosecution. A prosecution dis-
covered to be false and vexatious cannot be allowed to proceed. 
But the power 
must 

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