R.M. TEWARI, ADVOCATE ETC. ETC.versusSTATE (NCT OF DELHI) ORS ETC. ETC.

                                                                                   a


A                  R.M. TEWARI, ADVOCATE ETC. ETC.
                                  v.
                  STATE (NCT OF DELHI) ORS ETC. ETC.

                              FEBRUARY 20, 1996

B               [J.S. VERMA AND K. VENKATASWAMI, .TJ.)

          Te1Tolist and Disntptive Activities (Prevention) Act, 1987:

          Ss.9, 14-Withdrawal from prosecution-Public Prosecutor filing ap-
C plications for-Factors to be taken into consideration-Explained.
          Code of Oiminal Procedure, 1973:

           S.321-Withdrawal from Prosecution-Duty of Public Prosecutor and
    factors to be taken into consideration by courts-Explained.
D         In Kartar Singh's case* this Court noticed that there had been some
    misuse of the provisions of the Terrorist and Disruptive Activities (Preven-
    tion) Act 1987 and felt that there ought to be a screening committee/Review
    Committee at the Central as well as at the State level, to review all the
    prosecutions under the Act. Accordingiy, like other States, the Government
E   of Delhi also constituted a high power Screening Committee/Review Com-
    mittee which reviewed the cases registered under the Act and recom-
    mended for deletion of charges under the Act in specified criminal cases
    pending before the Designated Court. The State Government conveyed its
    approval to the Director of Prosecution. Accordingly, the Public
    Prosecutor filed applications before the Designated Court for withdrawal
F   of charges under the Act in all the specified cases. The Designated Court
    rejected the applications. Aggrieved, the Government of Delhi filed the
    present appeals. A writ petition was also filed in public interest for a
    direction to the Designated Court to permit withdrawal of all the cases

G
    recommended by the Review Committee.                                               \
          Disposing of the matters, this Court.

          HELD : 1.1. The Designated Court was right in taking the view that
    Vl'i~hdrawal from prQsecution is not to be permitted mechanically by the
    court on an application for that purpose made by the Public prosecutor.
H   The Public Prosecutor did not fully appreciate the requirements of Sec-
                                         898
                             R.M. TEWARiv. STATE                            899

    tions 321 Cr. P.C. and made the applications for withdrawdl from prosecu- A
    tion only on the basis of the recommendations of the Review Committee.
                                                               [903-G; 904-B]
           1.2. The Public Prosecutor has not to act mechanically in the dis-
    charge of his statutory function under Section 321 Cr. P.C. on a recommen-
    dation being made by the Review Committee. He has to satisfy himself in B
    each case that the case is fit for withdrawal from prosecution in accordance
    with the settled principles indicated in the decisions of this Court and then
    to satisfy the Designated Court of the existence of a ground which permits
    withdrawal from prosecution under s.321, Cr. P.C. [903-H; 904-A, C]

          *Kartar Singh Etc. v. State of Punjab Etc., [1994] 3 SCC 596; State of   C
    01issa v. Chand1ika Mahapatra and Others, [1976] 4 SCC 250 and Sheonan-
    dan Paswan v. State of Bihar & Others, [1983] 2 SCR 61, relied on.

           2.1. In Kartar Singh, it was observed that a review of the cases should
    be made by a High Power Committee to ensure that there was no misuse of D
    the stringent provisions of the TADA Act and any case in which resort to the
    TADA Act was found to be unwarranted, the necessary remedial measures
    should be taken. The Review Committee is expected to perform its functions
    in this manner. If the recommendation of the Review Committee, based on
    the material present, is that resort to provisions of the TADA Act is unwar- E
    ranted fur any reason which permits withdrawal from prosecution for those
    offences, a suitable application made under Section 321 Cr. P.C. on that
    ground has to be considered and decided by the Designated Court giving
    due weight to the opinion formed by the Public Prosecutor on the basis of


-   the recommendation of the High Power Committee. [904-E-G]

         K01tar Singh Etc. v. State of Punjab Etc., [1994] 3 SCC 569, explained.
                                                                                   F


           2.2. An application made to withdraw the charges of offences under
    the TADA Act pursuant to review of a case by the Review Committee has
    to be considered and decided by the Designated Courts, keeping in mind
    that the initial invocation of the stringent provisions of the TADA Act is G
    itself subject to sanction of the Government and, therefore, the revised
    opinion of the Government formed oil the basis of the recommendation of
    the High Power Committee after scrutiny of each case should not be lightly
    disregarded by the court except for weighty reasons such as malafides or
    manifest arbitrariness. The worth of the material to support the charge H
    900                   SUPREME COURTREPORTS                    [1996] 2 S.C.R.

A    under the TADA Act and the evidence which can be produced, is likely to
     be known to the prosecuting agency and, therefore, mere existence of prima
    f acie material to support the framing of the charge should not by itself be
     treated as suflicient to refuse the consent for withdrawal from prosecution.
                                                          [905-D; 904-H; 905-A-B]
B         3. The applications made under Section 321 Cr.P.C. not having been
    decided on the basis indicated above, it would be open to the Public
    Prosecutor to make fresh applications pursuant to the recommendations
    of the Reviews Committee or the revised opinion of the Government and
    the same would be considered and decided by the Designated Courts in
C   light of the observations made above. [905-C}

        CRIMINAL ORIGINAL JURISDICTION/CRIMINAL APPEL-
    LATE JURISDICTION : Writ Petition (Crl.) No. 19 of 1995.

          (Under Article 32 of the Constitution of India.)

D                                      AND

          Criminal Appeal No. 250 of 1996 Etc.

         From the Judgment and Order dated 12.12.94 of the Designated
    Court-II (TADA) Delhi, in Misc. Application No. Nil/94.
E
         K.T.S. Tulsi, Additional Solicitor General, Ram Jethmalani, Ram
    Tiwari, Ravinder Kumar, R.S. Sodhi, (Indeevar Goodwill) (NP) B.K.
    Prasad, Ashok Bhan, Girish Chandra S.N. Terdol and T.C. Sharma for the
    appearing parties.
F         The Judgment of the Court was delivered by

          J.S. VERMA, J. Leave granted in special leave petitions.

         In Kartar Singh Etc. v. State of Punjab Etc., [1994] 3 SCC 569, the
  Constitution Bench while upholding the constitutional validity of the             (
G provisions in the Terrorist and Disruptive Activities (Prevention) Act, 1987      ~
  (for short "the TADA Act") except Section 22 therein, noticed the general         (
  perception that there was some misuse of the stringent provisions by the
  authorities concerned. To prevent any possible misuse of the stringent
  provisions, the Constitution Bench suggested a strict review of these cases
H in its observations made as under :                                    ·
                     R.M. TEWARiv. STATE [J.S. VERMA, J.]                    901

                "In order to ensure higher level of scrutiny and applicability of   A
            TADA Act, there must be a screening Committee or a Review


-           Committee constituted by the Central Government consisting of
            the Home Secretary, Law Secretary and other secretaries con-
            cerned of the various Departments to review all the TADA cases
            instituted by the Central Government as well as to have a quarterly B
            administrative review, reviewing the State's action in the applica-
            tion of the TADA provisions in the respective States, and the
            incidental questions arising in relation thereto. Similarly, there
            must be a Screening or review Committee at the state level con-
            stituted by the respective States consisting of the Chief Secretary,
            Home Secretary, Law Secretary, Director General of Police (Law C
            and Order) and other officials as the respective Government may
            think it fit, to review the action of the enforcing authorities under
            the Act and screen the cases registered under the provisions of
            the Act and decide the further course of action in every matter
            and so on."
                                                                                    D
                                                                   (at page 683)

          It appears that in compliance with the above observations of this
    Court in Kmtar Singh (supra), a Screening C01;nmittee or a Review Com-
    mittee was constituted by the Government in several States including Delhi.     E
    A High Power Committee under the Chairmanship of the Chief Secretary
    of Delhi reviewed the prosecutions made under the TADA Act and the
    Government of Delhi conveyed its approval to the Director of Prosecution,
    Delhi for deletion of the charges under the TADA Act in the specified
    criminal cases pending before the Designated Court. The learned Special         F
    Additional Public Prosecutor filed applications in the Designated Court for
    withdrawal of charges under the TADA Act in all those cases pending in
    the Designated Court. It appears that the only reason assigned for
    withdrawal of charges under the TADA Act by the learned Public
    prosecutor was the recommendation of the High Power Committee which
    was constituted to review the cases in accordance with the observations of      G
    this Court in Kartar Singh. The Designated Court has dismissed those
    applications taking the view that administrative decisions cannot interfere
    with the working of the judicial system. Apparently, the view taken is that
    a mere administrative decision taken on the basis of the recommendation
    of the Review Committee is not sufficient to permit withdrawal of a             H
    902                   SUPREME COURT REPORTS                     [1996] 2 S.C.R.

A   criminal prosecution pending in a court of law.

          The appeals by special leave challenge the orders of the Designated
    Court and the writ petition by an advocate, in public interest, is for a
    direction to the Designated Court to permit withdrawal of all prosecutious
    recommended by the Review Committee.
B
          The scope of Section _321 of Code of Criminal Procedure,
    1973(Cr.P.C.) dealing with withdrawal from prosecution is settled by
    decisions of this Court. In State of Olissa v. Chand1ika Mahapatra and
    Others, [1976] 4 SCC 250, the scope was indicated as under :
c               "Now the law as to when consent to withdrawal of Prosecution
            should be accorded under Section 494 of the Code of Criminal
            Procedure is well settled as a result of several decisions of this
            Court. The first case in which this question came up for considera-
            tion was State of Bihar v. Ram Naresh Pandey, (1957] SCR 279 ....... .
D           It was pointed out by this Court in that case that in granting consent
            to withdrawal from prosecution· the court undoubtedly exercises
            judicial discretion, but it does not follow that the discretion is to
            be exercised only with reference to material gathered by the
            judicial method .......... "
E
                                                                     (at page 252)

                "It will, therefore, be seen that it is not sufficient for the Public
            Prosecutor merely to say that it is not expedient to proceed with
            the prosecution. He has to make out some ground which would
F           show that the prosecution is sought to be withdrawn because inter
            alia the prosecution may not be able to produce sufficient evidence
            to sustain the charge or that the prosecution does not appear to
            be well-founded or that there are other circumstances which clear-
            ly show that the object of administration of justice would not be
            advanced or furthered by going on with the prosecution. The
G           ultimate guiding consideration must always be the interest of
            administration of justice and that is the touchstont: on which the
            question must be determined whether the prosecution should be
            allowed to be withdrawn."

H                                                                     (at page 253)
                 R.M. TEWARlv. STATE [J.S. VERMA,J.)                      903

In Sheonandan Paswan v. State of Bihar & Others, [1983] 2 SCR 61, it was A
reiterated as under :

            "From the aforesaid enunciation of the legal position governing
        the proper exercise of the power contained in s.321, three or four
        things become amply clear. In the first place though it is an
        executive function of the Public Prosecutor for which statutory B
        discretion is vested in him, the discretion is neither absolute nor
        unreviewable but it is subject to the Court's supervisory function.
        In fact being an executive function it would be subject to a judicial
        review on certain limited grounds like any other executive action,
        the authority with whom the discretion is vested "must genuinely C
        address itself to the matter before it, must not act under the
        dictates of another body must not do what it has been forbidden
        to do, must act in good faith, must have regard to all relevant
        considerations and must not be swayed by irrelevant considera-
        tions, must not seek to promote purposes alien to the letter or to
        the spirit of the legislation that gives it power to act and not must D
        act arbitrarily or capriciously... These several principles can con-
        veniently be grouped in two main categories : failure to exercise a
        discretion, and excess or abuse of discretionary poser. The two
        classes are not, however, mutually exclusive." (vide de Smith's
        judicial Review of Administrative Action 4th Edition pp. 285-86.)" E

                                                            (at pages 81-82)

           "Fourthly, the decision in R.K Jain's case (supra) clearly shows
        that when paucity of evidence or lack of prospect of successful
        prosecution is the ground for withdrawal the court has not merely        F
        the power but a duty to examine the material on record without
        which the validity and propriety of such ground cannot be deter-
        mined .......... "

                                                                 (at page 83) . G

      It is, therefore, clear that the Designated Court was right in taking
the view that withdrawal from prosecution is not to be permitted mechani-
cally by the court on an application for that purpose made by the Public
Prosecutor. It is equally clear that the Public Prosecutor also has not to act
mechanically in the discharge of his statutory function under Section 321        H
    904                   SUPREME COURT REPORTS                   [1996] 2 S.C.R.

A Cr. P.C. on such a recommendation being made by the Review Committee;
    and that it is the duty of the Public Prosecutor to satisfy himself that it is
    a fit case for withdrawal from prosecution before he seeks the consent of
    the court for that purpose.

          It appears that in these matters, the Public Prosecutor did not fully
B appreciate the requirements of Section 321 Cr. P.C. and made the applica-
    tions for withdrawal from prosecution only on the basis of the recommen-
    dations of the Review Committee. It was necessary for the Public
    Prosecutor to satisfy himself in each case that the case is fit for withdrawal
    from prosecution in accordance with the settled principles indicated in the
C   decisions of this Court and then to satisfy the Designated Court of the
    existence of a ground which permits withdrawal from prosecution under
    Section 321 Cr. P.C.

         It would now be open to the Public Prosecutor to apply for
    withdrawal from prosecution under Section 321 Cr.P.C. in accordance with
D   law on any ground available according to the settled principles; and on
    such an application being made, the Designated Court would decide the
    same in accordance with law.

          The observations in Kmtar Singh have to be understood in the context
E in which they were made. It was observed that a review of the cases should
  be made by a High Power Committee to ensure that .there was no misuse
  of the stringent provisions of the TADA Act and any case in which resort ·
  to the TADA Act was found to be unwarra.llted, the necessary remedial
  measures should be taken. The Revi~w Committee· is expected to perform
  its functions in this manner. If the recommendation of the Review Com-
p mittee, based on. the material present, is, that r~sort to provisions of the
  TADA Act is unwarranted for any reason which permits withdrawal from
  prosecution for those offences, a suitable application made under Section
  321 Cr.P.C. on that ground has to be considered and decided by the
  Designated Court giving due weight to the opinion formed by the Public
G Prosecutor on the basis of the recommendation of the High Power Com-
  mittee.

        It has also to be borne in mind that the initial invocation of the
  stringent provisions of the TADA Act is itself subject to sanction of the
  Government and, therefore, the revised opinion of the Government formed
H on the basis of the recommendation of the High Power Committee after
-                     R.M. TEWARlv. STATE [J.S. VERMA, J.]                  905

    scrutiny of each case should not be lightly disregarded by the court except   A
    for weighty reasons such as malafides or manifest arbitrariness. The worth
    of the material to support the charge under the TADA Act and the
    evidence which can be produced, is likely to be known to the prosecuting
    agency and, therefore, mere existence of prima facie material to support
    the framing of the Charge should not by itself be treated as sufficient to
    refuse the consent for withdrawal from prosecution. It is in this manner an   B
    application made to withdraw the charges of offences under the TADA
    Act pursuant to review of a case by the Review Committee has to be
    considered and decided by the Designated Courts.

          The applications made under Section 321 Cr. P.C. not having been        C
    decided on the basis indicated above, fresh applications made in all such
    cases pursuant to the recommendations of the Review Committee or the
    revised opinion of the Government have to be considered and decided by
    the Designated Courts in the manner indicated above.

          By an order dated 4.5.1995 made by this Court in these matters, it D
    was directed that the Designated Court would consider the bail applica-
    tions of all accused persons in respect of whom a prayer had heen made
    for withdrawal of charges framed under the provisions of the TADA Act
    on merits in accordance with law, after excluding from consideration the
    accusation relating to charges under the provisions of the TADA Act. The E
    hail granted to all such accused persons pursuant to that order would
    continue till conclusion of the trial in each case.

           The writ petition and the appeals are disposed of accordingly.

    R.P.                                      Petition and appeals di~posed of.