Holding

The Supreme Court held that the magistrate’s consent to withdraw the prosecution under Section 321 was proper and the appeal was dismissed.

Summary

The appellant, Mohd. Mumtaz, challenged the order allowing the withdrawal of prosecution against respondent Nandini Satpathy under Section 321 of the Criminal Procedure Code. Satpathy had been charged under the Prevention of Corruption Act for possessing assets disproportionate to her known income. The Special Public Prosecutor filed an application for withdrawal, which was approved by the Additional Special Judge and affirmed by the Orissa High Court. The Supreme Court examined whether the magistrate’s consent was proper, the scope of Section 321, and whether the case should instead be dealt with under Section 239 due to lack of a prima facie case. Relying on the Income Tax Department’s findings that the allegations were groundless and on precedents, the Court held that the withdrawal was bona‑fide and in the interest of public justice, and therefore dismissed the appeal.

Issues considered

The propriety of the magistrate’s consent to withdraw prosecution under Section 321 CrPC
Whether Section 321 permits withdrawal at any stage before judgment even when charges have been framed
Whether the court should intervene under Section 239 CrPC when no prima facie case exists
The necessity of setting aside the withdrawal order in the present facts

Legislation cited

Code of Criminal Procedure, 1973s. 239, s. 321
Prevention of Corruption Act, 1947s. 5(1)(d), s. 5(2)

Subjects

withdrawal of prosecutionSection 321 CrPCpublic justiceprima facie casePrevention of Corruption Actcriminal procedureappeal

Judgment

A MOHD. MUMTAZ
v.
NANDINI SATPATHY AND ORS. ...J\
DECEMBER 20, 1986

B [P.N. BHAGWATI, CJ, E.S. VENKATARAMIAH, V. KHALID,
G.L. OZA AND S. NATARAJAN, JJ.]
I

Criminal Procedure Code, 1973-Section 321-Withdrawal from +
prosecution-Public Prosecutor-Right of-Conditions under which
·withdrawal is permissible-Competency of Court to permit withdrawal.
c
Prosecution was launched against Respondent No. l under
s.5(l)(d) read with s.5(2) of the Prevention of Corruption Act, 1947 for r-
having assets disproportionate to her known sources of income.
y
The Special Public Prosecutor filed application for withdrawal of
D the prosecution against Respondent No. I. The Additional Special Judge
allowed the application. The High Court dismissed the revision petition
and confirmed the order permitting withdrawal of ihe case.

Dismissing the Appeal to this Court,

E HELD: Per Venkataramiah, J.
~-
The Public Prosecutor had applied bis mind to the case before.
applying for withdrawal and the Chief Judicial Magistrate has not com-
milted any error in giving bis consent to such withdrawal. [683D-E]

F The State of Bihar v. Ram Naresh Pandey, [1957] S.C.R. 279 and
R. K. Jain etc. v. State through Special Police Establishment and others,
[1980] 3 SCR 982, Relied upon.

Per Khalid, J, ~
'
G I. What is to be decided in this case is whether the order passed
by the Magistrate under s.321, Criminal Procedure Code, is prope•r or
not. The Court is not called upon to consider the propriety of the charge
framed and then examine the evidence and see whether the accused
should be discharged or the charge framed should be upheld. [684D-El

H 2. Consent can be given for withdrawal from the p~tion of a

680
MOHD. MUMTAZ v. NANDINI SATPATHY 681
~-
/ case, not only when the charge is not framed, but even after the charge A
is framed and at any time before the judgment. [6848-C]

<
The State of Bihar v. Ram Naresh Pan'dey, [1957] SCR 279 and
R. K. Jain etc. v. State through Special Police Establishment and others,
[1980] 3 SCR 982, Relied upon.
...... ·Per Oza, J.
B

l. Ordinarily when the exercise of considering the material on

- -(
record for the purpose of determining whether there is sufficient mate-
rial to sustain the prosecution can be performed by the Court under
s.239 of the Code of Criminal Procedure 1973, the Court should not c
allow the prosecuJion to be withdrawn under s.321: [688C-E]
..,..,
2. In the present case, there is no point in setting aside the with-
drawal and sending the case back to the Special Judge because there is
no material at all to show that there is a prima facie case and the
charges appear to lie groundless. Respondent No. l would, therefore, D
be entitled to be discharged under s.239. It is, therefore, not necessary
or expedient to interfere with the order made by the Special Judge and
confirmed by the High Court. [688E·Fl

---}.. 3. When the charge-sheet was filed, the Income Tax Department
re-opened the assessment, examined the whole matter afresh and pas- E
sed final orders during the pendency of the case in this Court explaining
all the items of assets said to have been unaccounted and suppressed as
~
also entires pertaining to the house construction and other assets, which
show that there is nothing to indicate that Respondent No. l was posses-
sed of assets disproportionate to her means. [688A-B]
F
;f 4. The application moved by the Special Public Prosecutor for
withdrawal from the prosecution was, therefore, clearly bona fide and
in furtherance of public justice and It was clearly a false and vexatious
criminal prosecution launched against respondent No. l. The Special
Judge also on these facts took the view that"no useful purpose would be .
served by continuanee of the prosecution and accordingly permitted the G
withdrawal which was upheld by the High Court in revision. [688B]
-{
5. The first allegation relates to payments made to Dharitri and
Navjat Printers. Dharitri is a newspaper which receives advertise-
ments. There is nothing to show that the payment received by Dharitri
for advertisement had anything to do with respondent No. l. [687-B-C] H

"
682 SUPREME COURT REPORTS [1987] lS.C.R.

6. The second allegation relates to valuation of assets and the ~
A construction of the house and the third relates to the monies receind by
the U.P.C.C. which are alleged to have been paid by respondent No. I.
Lastly there are similar items of monies paid to the SODS and found in
the posses.goo of her husband. It was on the basis of these allegations
that the Income Tax Department re-opened the assessments, conducted
B detailed enquiries and ultimately passed a final order accepfuog her ~
returns as correct and rejecting the allegations that she had suppressed
any income from undisclosed sources. [687C-E]

7. The application for withdrawal was made by the Special Public
Prosecutor in 1980 when respondent No. 1 had nothing to do with the
party in power as she was in opposition party after the elections held in
)... -
c 1980. This is a strong circumstance which indicates that the applitoatioo
for withdrawal was made in furtherance of public justice. [687-E-G l y

8. In the light of the facts on record and the order passed by"the
Income Tax Officer explaining all the items of assets alleged to he
D unaccounted and suppressed; the charges against respondent No. J
appear to be groundless. [688C]

Per Natarajan, J.

1. section 321 makes it clear that an application for withdrawal k"
of a case can be made by a Public Prosecutor or Assistant Public Pro-
E
secutor who is incharge of the case concerned, at any time before the
judgment is pronounced. The application for withdrawal of prosecution
may be made at any time ranging between the Court taking cognizance ":
of the case· till such time the Court actually pronounces judgment. Even
where reliable evidence has been adduced to prove the charges, the
Public Prosecutor can seek the consent of the Court to withdraw the
F
prosecution. The section does not, therefore, lay down that an applica-
tioo for withdrawal of the prosecution should necessarily be made at the
earliest stages of the case or only if the evidence is of a weak and infirm
nature. [689E-G] " '

2. The Special Public Prosecutor had set out the reasons which
G
justified filing of an application under s.321 of the Code for the with-
drawal of the prosecution, and the Magistrate has considered the mat-
ter judicially, before giving his consent. [689G-H]

The State of Bihar v. Ram Naresh Pandey [1957] SCR 279 and
H R. K. Jain etc. v. State through Special Police Establishment and others,
ll980] 3 SCR 982, relied upon.
MOHD. MUMfAZv. NANDINISATPATHY [VENKATARAMIAH.J.] 683

j. ·. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal A
No. 48 of 1983.

From the Judgment and Order dated 14.5.1981 of the Orissa
High Court in Cr!. R. No. 22 of 198 l.

V .J. Francis for the Appellant B

F.S. Nariman, Anil B. Divan, L.R. Singh, R.K. Mehta, G.S.
Chatterjee and Vinoo Bhagat for the Respondents .

-
.t
..f The Judgment of the Court was delivered by
c
VENKAT ARAMIAH, J. I agree that this appeal has to be
dismissed. I am of the view that the decision in The State of Bihar v.
Ra11J Naresh Pandey, [1957] S.C. R. 279 interpreting section 494 of the
Code of Criminal Procedure, 1898 and the decisfon in R. K. Jain etc. v.
. State through Special Police Establishment and Others, [1~80] 3 SCR
982 interpreting section 321 of the Code of Criminal Procedure, 1973 D
do not call for any reconsideration. I am in full agreement with the
views expressed in these decisions. I am -satisfied that the Public Pm-
secutor had applied his .mind to the case before applying for with-
drawal and the Chief Judicial Magistrate has not committed any error
in giving his consent to such withdrawal.
E
The appeal is, therefore, dismissed.

- '
KHALID, J. I have_ just received (at 7.40 p.m. on 19th
December, 1986) a draft Judgment by Oza, J. in the above case. I
agree with the conclusion that the appeal has to be dismissed, but not, F
with respect, with the reasoning contained in the Ju.dgment. Since the
-';"{ case is listed for Judginenton 20th December, 1986, I do not have time
I
to write a detailed Judgment. ·

. The question to be decided in this appeal is the scope of Section
32 J of Criminal Procedure C9de, and I do not agree with the following G
observation of Oza, J. since there is no question of setting aside. of the
order passed by the learned Additional SpeCial Judge, Bhubaneswar;
....(
" ...... But in the present case, there is no point in setting
aside the withdrawal and sending the case back to the
learned Special Judge because after considering the entire H
material on record in detail we are of the view tliat there is
684 SUPREME COURT REPORTS [1987] ! S.C.R.

A
no material at all on the basis of which it· could be said that -+
there is a prima facie case against respondent No. I and the
charges against respondent No. I appear to be groundless
and respondent No. I would, therefore, in any event be
entitled to be discharged under Section 239 ..... "

B A cursory glapce at Section 321 will satisfy anyone that consent can
given for withdrawal from the prosecution of a case, not only when the +
charge is not framed, but even after the charge is framed and at any
time before the Judgment.
..
This appeal along with' Criminal Appeal
-
No.
.'
49 of 1983 were di-
rected to be posted before a Constitution Bench to consider the scope t-
-
c of Section 321, Criminal Procedure Code. That being so, I do not think
it proper to abandon that pursuit and take refuge under Section 239 of y
Criminal Procedure Code.

In a separate Judgment to be i>ronounced by me in Criminal
D Appeal No.241 of 1983, I have outlined the scope of Section 321 of
Criminal Procedure Code. Wtiat is to be decided in this case is whether
the order passed by the Magistrate under Section 321, Criminal Proce-
dure Code, is prope~ or not. We are not called upon to consider the
propriety of the charge framed and then examine the evidence and see
whether the accused should be discharged or the charge framed should ~
E be· upheld.

I adopt the reasons given by me in Criminal Appeal No. 241 of
1983, relying upon the decisions reported in [1957] SCR 279 (Stat< of
Bihar v. Ram Naresh Pandey) and in [ 1980] 3 SCR 982 (R.K. Jain v.
State) apd uphold the order of withdrawal passed by the Additimal
F Special Judge, Bhubaneswar, and upheld by the High Court in revi-
sion, and dismiss the appeal.

OZA, J. The present appeal by special leave is directed against
'\
the judgment and order of the High Court of Orissa date·d 14th May
1981 in Criminal Revision No. 22 of 198.l arising out of an order dated
G 20th December, 1980 of the Additional Special Judge, Bhubanern>ar
allowing an application filed by the Special Public Prosecutor praying
for withdrawal from prosecution in Case No. 13 of 1979 against
respondent No. I. By the impugned judgment the Hon'ble High Court
dismissed the revision petition filed by the appellant and confirmed the
order passed by the learned Additional Special Judge permitting with-
H drawal of the case by the Special Public Prosecutor. The Vigilance
MOHD. MUMTAZ v. NANDINI SATPATHY [OZA, J.] 685

,~- Department of the State submitted a charge-sheet against respondent
A
No. I on the allegation that she had no assets prior to her election as a
member of the Rajya Sabha in the year 1962. Subsequently she was
re-elected and became a Union Deputy Minister from January 1966 to
·June 1970 and a Union State Minister from June 1970 to June 1972.
She became the Chief Minister of Orissa from 15.6. 72 to 28.2. 73 and
again from 6.3. 74 to 26. 12. 76. Even before becoming the Chief Minis- B
~ ter of Orissa she had no assets save and except a thatched roof house at
Pithapur, Cuttack and a bank lialance of Rs. 18,000. It was alleged that
during her incumbency as Chief Minister, the. bank balance increased

- , as well as her other assets swelled-up and it was alleged that in 1977
her net assets were to the tune of Rs. 7,54, 735,85 p. which were disprp-
..( portionate to her known sources of income.
c
~ In 1977 the respond,,nt No. I left the Congress Party and joined
the Congress for Democracy.· In the parliamentary elections in 1977,
(,the Congress was defeated and Janata Party came to power and also in
the Assembly elections which followed, the Congress lost and the
Janata Party came to power in the State. It appears that although the D
-Congress for Democracy which respondent No. I had joined, merged
with the Janata Party, still many leaders of the Jaoata Party had a
grudge against her as during her regime. as Chief Minister when
emergency was clamped, a number of leaders who were prominent in
-,l the Jan~ta Party were put behind bars and ultimately for having assets
disproportionate to her known sources of incotne, a prosecution was E
launched against her under Section 5( l)(d) read with Sec. 5(2) of the

- Prevention of•Corruption AcL

One of the allegations on the basis of which the charge-sheet was
filed was.that on 15.7.74, respondent No. I passed an order in favour of
M/s Ferro Alloys Corporation. This order was passed by her in her F
official capacity and it is alleged .that because of this order M/s Ferro
Alloys made a huge profit of about Rs.4 crores and on 3.10.75 and
7.10. 75 cheques in the aggregate sum of Rs.48,000 were given by M/s
Ferr.a Alloys Corporation to Dharitri a newspaper for an advertise-
ment which was published in the newspaper. It was therefore alleged
that respondent No.. I obtained Rs.48,000 from M/s Ferro Alloys G
Corporation.

· ~. The second allegation against -respondent No. I was that on
14.6.76 the Prime Minister requested respondent No. I to indicate the
approximate value of her recently completed house at Bhubaneswar
and no reply to this query is found on the record of the Prime Minister. H
686 SUPREME COURT REPORTS (1987] l S.C.R.

A The construction of the house started in September 1974 and ended on ~
29th February, 1976. The investment in the .construction of the house
is said to be Rs.3,32,000 and odd whereas according to respondent
No ..1 she had spent an amount of Rs.2,68,000 and the difference of
Rs.64,000 according to the allegation of the prosecution was the
amount acquired by respondent No. 1 by illegal and corrupt means as
B Chief Minister. It was alleged that the whole sum of Rs. 3,27 ,614 is
~
surreptitious and not disctosed in income-tax return for the financial
years 1974-75 and 1975-76. It is also alleged that Navjat Printers which
is owned by Samajbadi Society received a sum of Rs.3,94,540 between

c
6.3.74 and 29.2.76 in respect of orders placed by U.P.C.C. The allega-
tion is that U.P.C.C. between 6.3.74 and 29.2.76, paid only Rs.60,964
and as regards the balance of Rs.3,33,576 it must have been acquired ~
-
by respondent No. 1 herself and paid to Navjat Printers.
y
It was alleged tha! Shri Natchiketa Satpathy, son of respondent
No. 1 purchased a flat at Kailash Apartments, New Delhi and for this
purpose respondent No. 1 paid Rs.50,000 to her son in three instal-
D ments. Similarly it was alleged that on 15.3.75 respondent No. 1 paid
Rs. 15,000 to her other son Tathagat Satpahty and managed to get
invested a sum of Rs.33,000 in different names fictitiously in M/s
Rosambi Private Limited. An amount of Rs. 15,000 is said to have
been a payment by cheque.
.-Jr"
E It was alleged that in the house of her husband, cash was con-
tained in two bags which was to the tune of Rs.51, 766. One of the bags

F
there had a visiting card .of the First Secretary of the USSR Embassy.
This cash was discovered after respondent No. I ceased to be Chief
Minister. The search was made on 8th July 1977 when respondent
No. 1 had already ceased to be Chief Minister nearly nine months before
that date. It was alleged that the cash must be deemed to have been of .
-
the ownership of respondent No. I and that it must have been acquired
by her during the period when she was the Chief Minister. )\
It, appears that when charge-sheet was filed against respondent
No. I, the Income Tax Department also issued notice for re-opening of
G her assessments and examined the whole matter afresh and during the
period that this case has been pending here, final orders have been
passed by the Income Tax Department which explain in detail all the
items of assets which according to the prosecution were disproportion-
ate to the legitimate means of respondent No. I. This matter came up
before us along with another case from Bihar where we heard argu-
H ments at length on the question of withdrawal from the prosecution
MOHD. MUMTAZ v. NANDINI SATPATHY (OZA, J.] 687

~- and its legal implications, but so far as the present case is concerned, in A
I
view of the facts as they emerge, we do not find it necessary to go into
all these questions. The allegations can be broadly classified into three
beads:

The first bead relates to payments made to Dharitri and Navjat
Printers or Samajbadi Society. These are clearly distinct institutions B
4.-· which could not be said to belong to respondent No. I. It is not dis-
puted that Dharitri is a newspaper which receives advertiseinen.ts and
payment for advertisement made to Dharitri could not possibly be

- ~
co-related to respondent No. 1 or regarded as receipt of respondent
No. 'I. There is nothing at all to show that the payment received by
Dharitri for advertisement (which in fact was published in Dharitri) c
bad anything to do with respondent No. 1.
...,,
The second head of allegations relates to valuation of assets and
the construction of the house and the third category to the monies
received by the U.P.C.C. which are alleged to have been paid by .
respondent No. I. Lastly there are similar items of monies paid to the D
sons and found in the possession of her husband. So far as these
allegations are concerned, it may be pointed out that it was on the
basis of these allegations that the Income Tax Department re-opened
the assessments after giving notice and conducted detailed enquiries
~· and ultimately passed a final order accepting her returns as correct and
rejecting the allegations that she had suppressed any income from E
undisclosed sources.

It is also significant that the application for withdrawal was made
by the Special Public Prosecutor in 1980 when respondent No. 1 had
nothing to do with the party in power, as after the elections .held in
1980, Congress-I came back to power in Orissa and J.B. Patnaik be- F
came the Chief Minister. Respondent No. 1 contested the Assembly
election as a candidate of Congress (U rs) Party and was elected, de-
feating her Congre~s-1 opponent Shri Profulla Bhanja and she was a
member of Congress (Urs) (Opposition) during that period. This is to
our mind a strong circumstance which indicates that the application for
withdrawal was made in furtherance of public justice and distinguished G
the case of respondent No. 1 from that of Dr. Jagannath Misra in the
Bibar case which is being disposed of by another judgment today.

The Income Tax Officer examined in detail each one of the items
of assets said
I
to have been unaccounted and suppressed and the order
passed by the Income Tax Officer which has been placed on record H
688 SUPREME COURT REPORTS [1987] l S.C.R.

A clearly explains all the items as also entries pertaining to the house
construction and other assets and shows that there is nothing to indi-
,cate the respondent No, 1 was possessed of assets disproportionate to
his means. The application moved by the Special Public Prosecutor for
withdrawal from the prosecution was therefore clearly bonafide and in
. furtherance of public justice and it was clearly a false and vexatious
B criminal prosecution which had been launched against respondent
No. l which was sought to be halted. The learned Special Judge also on +
these facts took the view that no useful purpose would be served by
continuance of the prosecution and he accordingly permitted the with-
drawal. The High Court too maintained the order of the learned Spe-
cial Judge, We agree that in the light of the facts on record and the
C order passed by the Income Tax Officer which explains all the items of
-·
assets alleged to be unaccounted and suppressed, the charges against
respondent No, 1 appear to be groundless. It is true that ordinarily
when the exercise of considering the material on record for the
purpose of determining whether there is sufficient material to sustain
the prosecution can be performed by the Court under Section 239 of
D the Code of Criminal Procedure 1973 the Court should not allo·w the
prosecution to be withdrawn under Section 321 as held by us in the
Judgment in Dr. Jagannath Misra's case, which has been delivered
today, But in the present case there is no point in setting aside the
withdrawal and sending the case back to the learned Special Judge
because after considering the entire material on record in detail we are -¥'
E of the view that there is no material at all on the basis of which it could
be said that there is a prima facie case against respondent No. I and
the charges against respondent No, I appear to be groundless and
respondent No, 1 would therefore in any event be entitled to be dis-
charged under Section 239. We do not therefore think it necessary or
expedient to interfere with the order made by the learned Special
F Judge and confirmed by the High Court,

The appeal will therefore stand dismissed.

NATARAJAN, J. In the withdrawal petition filed on 15. IL80
and the supplementary withdrawal petition filed on 16. 12.80 the Spe-
G cial Public Prosector (Vig_.) C.D., Cuttack has set out the factors which
have prevailed with him to seek the C?nsent on the Court to withdraw
the prosecution launched in V.C.~. Case No. 33 of 1977 against the f
accused therein, viz. Smt. Nandini Satpathy & Anr.

The Additional Chief Judicial Magistrate has passed a detailed
H and considered order on 20. 12.80 wherein he has fully discussed the
MOHD. MUMTAZv. NANDINISATPATHY [NATARAJAN,J.] 689
f"· .
matter and thereafter given consent to the withdrawal of the prosecu- A
tion. The conclusion of the learned Magistrate is contained in para 12
which reads as follows:-

"Taking the facts and circumstances of the case into consi-
deration. I am of·the view that the ends of public justice be
met if the consent be given for withdrawal of the case." B

The order of the learned Magistrate has been critically assessed
by a learned Judge of the Orissa High Court in Crl. Rev. No. 21and22

- of 1981 filed before the High Court. The learned Judge upheld the
order of the Magistrate and has summed up the High Court's view as
under:- C

"The observations of the Supreme Court (in R.K. Jain v.
State-AIR 1980 Supreme Court 1510-1980 Volume 3
SCR 982) would not justify entertaining this application
when a Public Prosecutor in his application had indicated
that the evidence already collected did not support the pro- D
secution there was no prospect of a conviction and the
appropriate authority in the broad ends.of justice need not
continue."

Section 321 makes it clear that an application for withdrawal of a
case can be made by a Public Prosecutor qr Assistant Public E
Prosecutor who is incharge of the case concerned, at any time before
the judgment is pronounced. In other words, it means that the applica-
tion for withdrawal of prosecution may be m:.de at any time ranging
between the court taking congnizance of the case ·till. such time the
court actually pronounced judgment. Consequently, it follows that
even where reliable evidence has been adduced to prove the charges, F
--( the Public Prosecutor can seek the consent of the Court to witdraw the
_I .
prosecution. The Section does not, therefore, lay down that an appli'
cation for withdrawal of the prosecution should necessarily be made at
the earliest stages of the case or only if the evidence is of a weak and
infirm nature. ·
G
In his application a Special Public Prosecutor had Set out the
-i reasons which justified his filing an application under Section 321 of
the Code to seek the consent of the Court for the withdrawal of the
prosecution. The _learned Magistrate has considered the matter judi-
cially in the light of the decision of this Court in R. K. Jain v. State,
[ 1980] 3 SCR 982 which has followed the earlier decision in State of H
690 SUPREME COURT REPORTS [1987] l S.C.R.

A Bihar v. Ram Naresh Pandey, [1957] SCR 279. The order of the learned ~
Magistrate has been approved and affirmed by the High Court.

There are no materials in the appeal to persuade me to hold that
the order passed by the Additional Chief Judicial Magistrate or the
B High· Court suffers from any error of law, patent or latent. In that view
the appeal has to be dismissed. 4'-
A.P.J. Appeal dismissed.

-