V.S. ACHUTHANANDAN versus R. BALAKRISHNA PILLAI AND ORS.

Citation: [1994] SUPP. 1 S.C.R. 95 · Decided: 13-05-1994 · Supreme Court of India · Bench: J.S. VERMA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

V.S. ACHUTHANANDAN 
v. 
R. BALAKRISHNA PILLAI AND ORS. 
MAY 13, 1994 
[J.S. VERMA, B.P. JEEVAN REDDY AND S.P. BHARUCHA, JJ.] 
Code of Criminal Procedure, 1973 : Section 321-Public Prosecutor-­
Power to withdraw prosecution-Scope of-Non-application of mind by public 
prosecutor-Decision to withdraw prosecution not bona fide-Court's refusal 
to give consent to withdrawal of prosecution-Held justified. 
A 
B 
c 
Section 401-Revision against Court's order refusing consent to 
withdrawal of prosecution by public prosecutoi-Nature and scope of High 
Court's power in such a matter-High Court not considering ground of 
withdrawal taken by public prosecutor-But considering grounds not urged by 
public prosecutor-Setting aside Court's order by High Court held not jus-
D 
tified. 
During the pendency of the trial against the respondents, for various 
offences punishable under the Indian Penal Code, 1860 and. Section S of 
.1 
the Prevention of Corruption Act, 1947, the Public Prosecutor filed an 
E 
application under Section 321 of the Code of Criminal Procedure, 1973 
before the Special Judge for withdrawal of prosecution only against one 
accused on the ground that "there was no material to substantiate the 
charge of conspiracy or for other offences against him. Relying on a 
decision of this Court reported in Sheonandan Paswan v. State of 8ihar, 
[1987] 1 S.C.R. 702 the Special Judge observed that in such cas.es it was 
F 
the duty or Court to see that the Public Prosecutor properly exercises his 
power under Section 321 and so it declined to give consent for withdrawal 
or prosecution holding that (I) haMing regard to the entire facts and 
circumstances or the case, the public prosecutor has not properly exercised 
the executive power vested In him under section 321 and has not applied G 
his mind objectively, uninfluenced by extraneous considerations in secur-
ing the permission or the court to withdraw prosecution against one or the 
accused persons ; (Ii) paucity of evidence cannot be taken as a ground to 
withdraw prosecution against one or the accused only. 
In a revision filed by the State, the High Court placed reliance on H 
45 
96 
SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R. 
A material not forming part of the record and referred to some administra· 
tive files of the State Government for taking the view that the prosecution 
was the resnlt of political vendetta; that the fear of prosecution has 
affected the morale of senior civil servants of the State which was required 
to be remedied. Accordingly the High Court allowed the revision and set 
B 
c 
aside the order of the Special Judge observing that the competent authority 
will consider whether the prosecution should be continued against any or 
all of the accused. 
In appeal to this Court, the legality of the High Court's order was 
assailed. 
Allowing the appeal and setting aside the High Court's order, this 
Court 
HELD : 1. The impugned order of the High Court is not sustainable 
on meri!S. There was no ground available to the High Court to set aside 
D the well reasoned and justified order of the Special Judge rejecting the 
application of the Public Prosecutor and declining to give consent for 
withdrawal of prosecution. (103-C, 105-H] 
2. The test applied by the Special Judge for deciding whether to grant 
E consent for withdrawal of the. prosecution under Section 321 Cr. P.C. is 
correct. There is nothing in the impugned orde~ which provides any legal 
basis for Interfering with the order made by the Special Judge. Therefore, 
the order passed by the Special Judge declining to give consent for 
withdrawal of the prosecution is restored. (102-D, 106-B) 
.. 
F 
Sheo Nandan Paswan v. State of Bihar, (1987) 1 S.C.R. 702, applied. 
3. The High Court missed the true import of the scope of the matter 
before it and went into grounds which were not even urged by the Special 
Public Prosecutor in his application made under Section 321 Cr. P.C. or 
G otherwise before the learned Special Judge. It delved Into administrative 
files of the State which did not form part of the record of the case and 
accepted anything which was suggested on behalf of the State Government 
overlooking the fact that for the purpose of Section 321 Cr. P.C., it is the 
opinion of the Public Prosecutor alone which is material and the ground 
on which he seeks permission of the Court for withdrawal of the prosecu· 
H lion bas alone to be examined. (105-B, Cl 
• 
V.S. ACHUTIIANANDAN v. R.B.

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