VIJAYKUMAR BALDEV MISHRA @SHARMA versus ST ATE OF MAHARASHTRA

Citation: [2007] 7 S.C.R. 601 · Decided: 18-05-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off

Judgment (excerpt)

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VIJA YKUMAR BALDEV MISHRA @SHARMA 
A 
v. 
ST ATE OF MAHARASHTRA 
MAY 18, 2007 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.) 
B 
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Code of Criminal Procedure, 1973-s. 321-Withdrawal from 
prosecution by public prosecutor-Consent' of court for withdrawal-Grant 
of-Application for withdrawal of charges under TADA against accused on c 
recommendations of Review Committee that case not made out under TADA-
Designated Court refusing to grant permission on the ground of certain 
confessions having been made thereunder-Correctness of-,-Held: Designated 
Court not correct in expressing its opinion on merit of the matter and the 
effect of confessions made:_lt was not necessary to consider bonafide of the 
public prosecutor~Moreover, bonafide of public prosecutor itself could not D 
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automatically lead to grant of consent-Thus, application for withdrawal of 
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charges to be al/owed~Terrorist and Disruptive Activities (Preventi<Jn) Act, 
1987. 
According to the prosecution case, murder of AS took place on account 
of enmity between two gangs. Appellant was the accused along with others. E 
-FIR was lodged. Appellant along with others were charged under s. 302/307 
IPC, Arms Act and Terrorist and Disruptive Activities (Prevention) Act, 1987. 
Pursuant to and in furtherance of the directions issued by the Court in *Kartar 
Singh's case as also the decision of High Court, Review Committee was 
. constituted. It took into consideration 27 cases including appellant's case and F 
... 
opined that murder of AS was on account of personal enmity and not to cause 
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fear or terror in mind of people and as such proceedings under TADA against 
all the accused may be dropped and may be prosecuted under s. 302 IPC. 
Thereafter, the public prosecutor filed applic~tion against the appellant for 
withdrawal of charges under TADA. Designated Court TADA dismissed the 
application. Respondent-State filed writ petition which was dismissed. Hence G 
the present appeal. 
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Appellant contended that in view of the recommendations of the Review 
Committee, the Designated Court TADA committed a manifest error in 
601 
H 
602 
SUPREME COURT REPORTS 
(2007) 7 S.C.R. 
A refusing to allow the public prosecutor to withdraw the case solely on the 
ground that certain confessions having been made thereunder, the same would 
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not be available if the appellant was proceeded against under TADA Act. 
Allowing the appeal, the Court 
B 
HELD: J.l. Section 321 of the Code of Criminal Procedure Code, 1973 
provides for withdrawal from prosecution at the instance of the public 
prosecutor. Indisputably therefore the consent of the Court is necessary. 
Therefore, application of mind on the part of the Court is necessary in regard 
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to the grounds for withdrawal from the prosecution in respect of any one or 
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c 
more the offences for which the appellant is tried. The provisions of TADA 
could be attracted only in the event of one or the other of the four 'things' 
specified in **State vs Na/ini's case is found applicable and not otherwise. 
The Review Committee made recommendations upon consideration of all 
relevant facts. It came to its opinion upon considering the materials on record. 
Its recommendations were based also upon the legality of the charges under 
D TADA in the fact situation obtaining in eac!i case. It came to the conclusion 
that in committing the purported offence, the appellant inter alia had no 
intention to strike terror in people or any section of the people and in fact the 
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murder was committed only in view of group rivalry and because the parties 
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ihtended to take revenge, the provisions of the TADA should not have been 
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invoked. (Para 121 (609-E, F; GI 
1.2. The Public Prosecutor in terms of the statutory scheme laid down 
under the Cr. P.C. plays an important role. He is supposed to be an independent 
person. While filing such an application, the public prosecutor also is required 
to apply his own mind and the effect thereof on the society in the event such 
F permission is granted. (Para 1311609-H; 610-AI 
1.3. While refusing to grant permission, the Designated Court was not 
... 
correct in expressing its opinion in the merit of the matter and the effect of 
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confessions made in terms of the provisions of TADA. However, it was also 
not necessary to consider as to whether, the action of the public prosecutor 
G as also the State was bona fide or not. Moreover, bona fide on the part of the 
public pr_o

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