Holding

The Supreme Court held that the High Court erred in entering the merits, the Ethics Committee had no jurisdiction to recommend withdrawal, and the State's action was vitiated by malice, leading to dismissal of the appeals.

Summary

The appellant, a Member of the Legislative Assembly, was accused of obtaining large sums of public money through fabricated medical reimbursement claims. The matter was referred to the Legislature's Ethics Committee, which, after the appellant's apology and partial refund, recommended withdrawal of the criminal case. The State issued a Government Order directing the Public Prosecutor to seek withdrawal under Section 321 of the Criminal Procedure Code, but the trial court rejected the application and the High Court later allowed a writ petition declaring the State's action illegal. On appeal, the Supreme Court held that the High Court erred by examining the merits of the case, that the Ethics Committee lacked jurisdiction to recommend withdrawal, and that the State's action was vitiated by malice and contrary to the doctrine of public trust. Consequently, the appeals were dismissed and the trial court's decision to refuse withdrawal was upheld.

Issues considered

The High Court's jurisdiction to interfere with the trial court's refusal to grant withdrawal under Section 321 CrPC.
Whether the Legislative Assembly's Ethics Committee had authority to recommend withdrawal of a criminal prosecution.
The validity of the State's Government Order directing withdrawal of prosecution under Section 321 CrPC.
Whether the State's action attracted the doctrine of malice in law and breach of the public trust doctrine.
Whether the High Court erred by adjudicating the merits of the criminal allegations.

Legislation cited

Code of Criminal Procedure, 1973s. 321
Indian Penal Code, 1860s. 1208, s. 420, s. 463, s. 468, s. 471

Subjects

criminal prosecutionwithdrawal under Section 321 CrPClegislative ethics committeedoctrine of malicepublic trust doctrinejudicial reviewseparation of powersexecutive interference

Judgment

[2009] 12 S.C.R. 494

A SRI YERNENI RAJA RAMCHANDER @ RAJABABU
v.
STATE OF AP. & ORS.
(Criminal Appeal Nos. 1414-1415 of 2009 etc.)
AUGUST 4, 2009
B
[S.B. SINHA AND DEEPAK VERMA, JJ.]

Code of Criminal Procedure, 19 73 - s. 321 -
Prosecution of member of Legislative Assembly u/s 420, 463,
C 468 and 471 rlw s. 120 B /PC - Application for withdrawal of
prosecution failed - Matter referred to Ethics Committee of
State Legislature - Committee recommending withdrawal of
prosecution - Application for withdrawal dismissed by trial
court - State as well as the Member filing criminal revision -
D Revision dismissed - Writ petition seeking Mandamus
declaring the action of the State in protecting the Member as
illegal, allowed - On appeal, held: Action on the part of the
State suffers from malice on facts - Ethics Committee had
no jurisdiction to make recommendation for withdrawal -
E Recommendation being unauthorized, the action of the State
would attract doctrine of malice in law - State has vitiated
doctrine of public trust as it was acting in private interest.

Appellant-a member of Legislative Assembly, made
several medical claims for himself and his wife and the
F same were reimbursed by the State. Respondent Nos. 3
and 4 levelled charges of misappropriation against the
appellant on the premise that he had obtained a huge
amount on the basis of false and fabricated medical bills.
The matter was referred to Ethics Committee of State
G Legislature. Appellant tendered apology before the
Committee and refunded a sum which he had received
for his last claim. The Committee accepted the apology
and in view of the refund of the amount, recommended

H 494
SRI YERNENI RAJA RAMCHANDER @ RAJABABU 495
v. STATE OF AP. & ORS.
for withdrawal of the criminal case pending against the A
appellant. Pursuant to recommendation, State issued a
Government Order directing the District Collector to direct
the Public Prosecutor to withdraw the same. Public
Prosecutor, thereafter, filed an application u/s. 321 Cr.P.C.
for withdrawal of the case. Trial court dismissed the B
application. Earlier attempts for withdrawal had also
failed. The State as well as the appellant filed criminal
revision petitions. During pendency of the revision
petitions, respondent Nos. 3 and 4 filed writ petition in the
nature of mandamus declaring the action of the State in c
trying to protect the appellant and tampering with the
course of justice by getting the prosecution withdrawn,
was illegal, unjust, discriminatory and contrary to the
doctrine of Rule of Law. High Court allowed the writ
petition. Revision petitions were eventually dismissed.
D
Hence the present appeals.

Dismissing the appeals, the Court

HELD: In the instant case, the trial court rejected the
prayer for withdrawal made on the part of the Public E
Prosecutor. The High Court, therefore, could interfere
therewith only if an error of law was found to have been
committed. Furthermore, an earlier attempt made on the'
part of the Public Prosecutor also failed to yield any
result. [Para 14] [505-A-B] F
Sheonandan Paswan v. State of Bihar and Ors. 1987 (10)
sec 288, distingusihed.
2. The Ethics Committee of the Legislature of the
State was empowered to deal with the disciplinary action G
·~
or otherwise which may be taken against the Members
of the Legislative Assembly. A criminal case against a
Member of the Legislative Assembly, ordinarily, should be
allowed to be continued on its own merit, particularly, in
H
496 SUPREME COURT REPORTS [2009] 12 S.C.R.

A the light of the facts of the present case wherein the High
Court had refused to interfere at the earlier stages of the
proceedings. The High Court, in fact, had not only been
monitoring the investigation, but also directed the Trial
Judge to complete the trial within a period of three
B months. The action on the part of the State to issue the
Government Order for withdrawing the prosecution
despite the earlier orders of the High Court must be
considered keeping in view the said factual matrix. [Para
15] [505-B-D]
c 3. Even otherwise, the action on the part of the State,
suffers from malice on facts as well. The State is the
protector of law. When it deals with a public fund, it must
act in terms of the procedure established by law. In
respect of public fund, the doctrine of public trust would
D also be applicable so far as the State and its officers are
concerned. It could not save and excep~ very strong and
cogent reasons have issued the G.O. despite the orders
of the High Court. [Para 18] [507-A-C]

E 4. The Ethics Committee had no jurisdiction to make
such recommendations. If the State had acted on the
basis of recommendations made by a body who had no
role to play, its action would be vitiated in law.
Recommendations of the Ethics Committee being
F unauthorized, the action of the State would attract the
doctrine of malice in law. [Para 17] [506-F-G]

The Manager, Govt. Branch Press and Anr. v. D.B.
Belliappa AIR 1979 SC 429; M.P. State Co-operative Dairy
Federation Ltd. and Anr. v. Rajnesh Kumar Jamindar and
G Ors. 2009 (6) SCALE 17; Swaran Singh Chand v. Punjab
State Electricity Board and Ors. 2009 (7) SCALE 622, relied
"' .
on.

5. The State was not acting in public interest but in
H
SRI YERNENI RAJA RAMCHANDER @ RAJABABU 497
v. STATE OF AP. & ORS.
private interest. The State has shown unusual interest in A
the appellant, which is not expected of an executive
which believes in good governance. It is a matter of great
surprise that the State independently filed a revision
application before the High Court. It did not stop at that.
It has also filed a Special Leave Petition before this court B
against the judgment of the High Court. [Para 19] [507-
C-D]

Epru Sadhakar and Anr. v. Govt. of A. P. and Ors. (2006)
8 SCC 161; M.P. Special Police Establishment v. State of C
M.P. (2004) 8 SCC 788, referred to.

6. However, there cannot be any. doubt whatsoever
that the HJgh Court, committed an error in entering into
the merit of the matter. [Para 20] [507-F]
D
Vijaykumar Baldev Mishra @ Sharma v. State of
Maharashtra 2007 (12) SCC 687, relied on.

Case Law Reference:
1987 (10) sec 288 Distinguished. Para 14 , E
AIR 1979 SC 429 Relied on. Para 17
2009 (6) SCALE 17 Relied on. Para 17
2009 (7) SCALE 622 Relied on. Para 17
F
2006 (8) sec 161 Referred to. Para 19
(2004) 8 sec 788 Referred to. Para 19
2001 (12) sec 687 Relied on. Para 20
G
• )( CRIMINAL AP PELLATE JURl!?DICTION : Criminal Appeal
Nos. 1414-1415 of 2009. ·:

From the Judgment and Order dated 20.04.2009 of the
High Court of Andhra Pradesh at Hyderabad in W.P. No. 15039
of 2008 and Crl. Rev. Case No. 457 of 2008. H
498 SUPREME COURT REPORTS [2009] 12 S.C.R.
\

A WITH 1-

Crl. Nos. 1418-1420 of 2009.

R. Sundaravaradhan, D. Bharathi Reddy, Anuradha
Rustagi, D.- Rama Krishna Reddy, T. Anamika, for the
B Appellant.

The Judgment of the Court was delivered by

S.B. SINHA, J. 1. Leave granted.
c 2. These appeals involving common question of law and
fact were taken up for hearing together and are being disposed
of by this common judgment.

3. Appellants are before us aggrieved by and dissatisfied
D with a judgment and order dated 20.4.2009 passed by a
Division Bench of the High Court of Judicature of Andhra
Pradesh at Hyderabad allowing their writ petitions; the prayer
made wherein reads as under:

" ... to issue an appropriate writ, order or direction, more
E
particularly, one in the nature of Writ of Mandamus
declaring the action of the Respondents in trying to protect
the 4th Respondent, who has misappropriated the public ...
funds to the tune of Rs.4, 14,566/- by fabricated documents
and cheating from being prosecuted for the offences
F committed under Section 420, 463, 468 and 471 read with
Section 1208 of IPC, by issuing consecutive G.Os., i.e.,
G.O. Rt. No.1617, Home (Legal.II) Department,
dt.3.11.2007 and G.O. Rt.No.407, Home (Legal.II)
Department, dt. 5.3.208 and tampering with the course of
G justice by getting filed consecutive petitions to withdraw the
prosecution and interdicting the due process of law by
~ .
invoking the power conferred on them under Section 321
of the Criminal Procedure Code, 1973 as illegal, unjust,
arbitrary, discriminatory, capricious, irrational whimsical
H and unconstitutional, apart from contrary to the doctrine of
SRI YERNENI RAJA RAMCHANDER @ RAJABABU 499
v. STATE OF AP. & ORS. [S.B. SINHA, J.]
-I Rule of Law and a blatant attack on the criminal justice A
system of this country and is the result of favoritism and
based on collateral extraneous, political and partisan
considerations and violative of Article 14 of the Constitution
of India, after declaring Section 321 of the Criminal
Procedure Code, 1973 as violative of Article 14 of the B
constitution of India and also violative of Rule of Law and
contrary to the Doctrine of Separation of Powers and has
the effect of scuttling the judicial process by enabling the
State Executive to interfere with the adjudicative process
and a constitutional anachronism and coloriial legislation c
which is not in conformity with the Constitution of India and
consequentially set aside G.O. Rt. No.407, Home (Legal.II)
Department dated 5.3.2008 and pass such other order or
orders as are deemed fit and proper in the circumstances
of the case."
D
-r
4. The basic fact of the matter is not in dispute.

The appellant was a member of the Legislative Assembly

- from Kaikalur Assembly Constituency in Krishna District
(Andhra Pradesh). In the year 1998, he underwent a heart
operation. It is alleged that in the year 2000, he along with one
E

Sri Veera Swamy, who-is said to be an employee of the Medical
Hospital, Secretariat Hyderabad, fabricated bogus hospital
records. Claiming that he underwent Cardiac Surgery in the
Medicity Hospital, medical reimbursement for a sum of F
Rs.2,89,489 was submitted to the Government which was
sanctioned vide G.O. Rt.No.569 dated 10.5.2002.

Again on 21.03.2002 he claimed reimbursement of an
amount of Rs.1,33,939.80 towards medical expenses stating
that his wife had undergone Angiogram operation at the G
Medical Hospital. An amount of Rs.60,000/- was sanctioned
vide G.O. Rt.No.833 dated 18.7.2002

Yet again on 3.7.2002, the appellant claimed
reimbursement of an amount of Rs.1,22,825.80/- stating that H
500 SUPREME COURT REPORTS [2009] 12 S.C.R.

A he was hospitalized at the Medicity Hospital during the month ~

of April 2002 on account of generalized Scissors Disorder
CAD and Hypertension under emergency circumstances. Again
an amount of Rs.60,000/- was sanctioned vide G.0.Rt.
No.1339 dated 21.11.2002.
8
5. On or about 18/19.8.2005, Respondent Nos.3 and 4
herein levelled charges of misappropriation against the
appellant on the premise that he had obtained a huge amount
on the basis of false and fabricated medical bills. ~

c 6. The appellant being a Member of the Legislative
Assembly, the matter was referred to the Ethics Committee.
Before the Ethics Committee, the appellant, inter alia,
contended that he has withdrawn the amount in question,
relying on or on the basis of the documents produced before
D him by his Personal Assistant. He tendered an apology before
the Ethics Committee. He refunded a sum of Rs.60,000/- to the +
Government.

E
7. The Ethics Committee accepted the said apology and
having regard to the fact that the said amount had been
refunded, recommended for withdrawal of the criminal case
-
pending against the appellant. Pursuant to the said
recommendations, the State Government issued the
aforementioned GO directing the District Collector to direct the
Public Prosecutor to withdraw the case. Thereafter only, the
F Public Prosecutor filed the aforementioned application under
Section 321 of the Code of Criminal Procedure before the
learned Trial Judge for withdrawal of the case. We may,
however, place that an earlier attempt was made to the same
effect but the application for withdrawal of the prosecution was
G dismissed. .,, '

8. Section 321 of the Code of Criminal Procedure reads '·
as under:

"321. Withdrawal from prosecution.-The Public
H
SRI YERNENI RAJA RAMCHANDER @ RAJABABU 501
v. STATE OF A.P. & ORS. [S~B. SINHA, J.]
~ Prosecutor or Assistant Public Prosecutor in charge of a A
case may, with the consent of the Court at any time before
the judgment is pronounced, withdraw from the prosecution
of any persoh either generally or in resrect of any one or
more of the offences for which he is tried; and upon such
withdrawal,- B

(a) If it is made before a charge has been frar;ned, the
accused shall be discharged in respect of such
~. offence or offences;

(b) if it is made after a charge has been framed, or c
when under this Code no charge is required he shall
be acquitted in respect of such offence or offences:

Provided that where such offence-
D
(i) was against any law relating to a matter to which
t
the executive pcwer ofthe Union extends, or

(ii) was investigated by the Delhi Special Police

-·' Establishment under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or E

(iii) involved the misappropriation or destruction of, or
damage to, any property belonging to the Central
Government, or

(iv) was committed by a person in the service of the F
Central Government while acting or purporting to act
in the discharge of hi s official duty,

and the prosecutor in charge of the case has not been
~.,.
appointed by the Central Government he shall not, unless G
he has been permitted by the Central Government to do
so. move the Court for its consent to withdraw from the
prosecution and the Court shall, before according consent,
direct the Prosecutor to produce before it the permission
granted by the Central Government to withdraw from the H
'·,
502 SUPREME COURT REPORTS [2009) 12 S.C.R.

A prosecution." ~

9. The learned Additional Public Prosecutor, in his
application, stated as under :

"3. That the petition filed by the Addi. Public Prosecutor
B under Section 321 Cr.P.C. for withdrawal of case was not
accepted by this Hon'ble Court vide Judgment dated
7.11.2007 as well as the Hon'ble High Court vide judgment
dated 13.12.2007, obviously for not assigning the reasons
~
thereof.
c
Subsequently, on reconsideration of the facts and
circumstances the Government is pleased to issue G.O.Rt.
No.407 dated 5.3.2008 requesting the Additional Public
Prosecutor to file the Petition under Section 321 Cr.P.C.
D The petitioner, upon going through the entire material on
record, oral and documentary evidence adduced before -+
this Hon'ble Court, as well as the Report and
Recommendations of the Ethics Committee and on re-

E
appraisal of facts independently, unhindered or
uninfluenced by the dictate of the Executive Authorities, it
is felt that it is a fit case for withdrawal. It is observed in
-
the GO Rt. No.407, the Government has accepted the
Pardon of the Accused No.1 and thereby pardoned the
acts of the Accused."
""

F 10. The learned VI Additional Chief Metropolitan
Magistrate, Hyderabad in her crder dated 17.3.2008 refused
to grant sanction for withdrawal of the case as the Court was
not satisfied that any case for passing such order has been
made out on the basis of the material placed before it. It was
G also stated : ) '

"In the present case also there is no satisfactory material
placed before the court to withdraw the prosecution against
A1 and A2. Moreover when once orders passed by the
court on the same subject matter, for the same relief, filing
H
SRI YERNENI RAJA RAMCHANDER @ RAJABABU 503
v. STATE OF A.P. & o'RS. [S.B. SINHA, J.]
-.\ similar petition for the same relief is not maintainable." A

11. Both the State as also the appellant filed Criminal
Revision Petitions before the High Court of Andhra Pradesh
thereagainst. During the pendency of the above Criminal
Revision Petitions, Respondent Nos.3 and 4 filed a writ petition
B
as stated hereinbefore. The High Court by way of the impugned
judgment, allowed the writ petition filed by Respondent Nos.3
and 4 and dismissed the Criminal Revision Petitions filed by
the State as also the appellant.
~

12. Mr. R. Sundaravaradhan, learned senior counsel c
appearing on behalf of the State of Andhra Pradesh and Mr.
Rama Krishna Reddy, learned counsel appearing on behalf of
the Appellant, urged :

(1) The High Court committed a serious error in
D
passing the impugned judgment insofar as it
* entered into the merit of the matter which is
impermissible in law having regard to the decision
of this Court in Vijaykumar Ba/dev Mishra @
·- Sharma v. State of Maharashtra [(2007) 12 SCC
E
687]

(2) In view of the Constitution Bench decision of this
Court in Sheonandan Paswan v. State of Bihar &
Ors. [(1987) 1 SCC 288], the High Court ought to
have held that the action taken by the Public F
Prosecutor being an independent one, the scope
of judicial review was limited.

13. The State of Andhra Pradesh passed an executive
order contained in G.O. No.407 requesting the District Collector
G
• •>( to instruct the Public Prosecutor to withdraw the prosecution .
The High Court, in its judgment, relied on a number of decisions
including Sheonandan Paswan (supra) to opine:

-! (i) The Public Prosecutor could not have filed an
application for withdrawal of the prosecution case H

•
504 SUPREME COURT REPORTS [2009] 12 S.C.R.

A relying on or on the basis of the impugned
Government Order.

(ii) The recommendations of the Ethics Committee of
the Legislative Assembly and. its report dated
7.10.2007 could not have formed the basis for filing
B the application for withdrawal by the learned Public
Prosecutor.

(iii) The records of the case show that the mandatory
requirements of independent examination of the
c matter were merely by way of lip service as he had
acted only upon the said Government Order.

(iv) No material was placed before the Court to
indicate that the Personal Assistant of the appellant
was solely responsible for the all-eged
D
misappropriation. The petitioner being the sole
beneficiary of the alleged misappropriated amount,
the learned Trial Judge was correct in refusing to
grant sanction.

E (v) The fact that all earlier applications filed by the
appellants herein had been dismissed by the High
Court and it having been monitoring over the
investigation and having directed the Trial Court to
conclude the trial within three months, the action of
F the Government in issuing the impugned
Government Order amounted to interference with
the judicial process.

14. In view of the decision of this Court in Sheonandan
Paswan (supra), the High Court's power of judicial review is
G limited. We may, however, at the outset, notice that in that case,
the learned Trial Court was satisfied that the application for
withdrawal filed by the Public Prosecutor was not based on his
own independent application of mind. The scope of limited
jurisdiction on the part of the High Court was stated in the
H
SRI YERNENI RAJA RAMCHANDER @ RAJABABU 505
v. STATE OF AP. & ORS. [S.S. SINHA, J.]
aforementioned situation. In the instant case, the learned trial A
court also rejected the said prayer made on the part of the
learned Public Prosecutor. The High Court, therefore, could
interfere therewith only if an error of law was found to have been
committed. Furthermore, an earlier attempt made on the part
of the learned Public Prosecutor failed to yield any result. B
15. The Ethics Committee of the Legislature of the S.tate
of Andhra Pradesh was empowered to deal with the
disciplinary action or otherwise which may be taken against the
-;.
Members of the Legislative Assembly. A criminal case against
a Member of the Legislative Assembly, ordinarily, should be
c
allowed to be continued on its own merit, particularly, in the light
of the facts of the present matter wherein the High Court had
refused to interfere at the earlier stages of the proceedings. We
have also noticed hereinbefore that the High Court, in fact, had
not only been monitoring the investigation, but also directed the D
learned Trial Judge to complete the trial within a period of three
months. The action on the part of the State to issue the said
G.O. despite the earlier orders of the High Court must be
.- considered keeping in view the said factual matrix .
E
16. It is on the aforementioned premise, we may notice the
GO No.407 dated 5.3.2008 issued by the State of Andhra
-+ Pradesh. The GO mentions representation of Y. Raja
Ramchandar, MLA dated 12.10.2007, report of the Ethics
Committee of 12th Legislative Assembly, GO Rt. No.1617, F
Home (Legal. II) Department dated 3.11.2007, Government
Memo No.812/Legal.ll/A1/2008 dated 23.1.2008 from the Addi.
DGP, CID, AP, Hyderabad Lr.C. No'.3106/C16/2005 dated
28.1.2008, Government Memo No.812/Legal.ll/A 1/2008 dated
26.2.2008 and from the_Additional DGP, CID, AP, Hyderabad,
G
,,..--~• Lr.C. No.3106/C16/2005 dated 1.2.2008.

. Despite noticing that earlier attempts on the part of the
State to withdraw the prosecution resulted in futility, the
Government proceeded to examine the matter carefully
purported to be on the ground specified therein. Grounds A and H
506 SUPREME COURT REPORTS [2009] 12 S.C.R.

A 8 referred to the report of the Ethics Committee and the fact
that the Members of Legislative Assembly had tendered
apology for the misconduct of his Personal Assistant. The GO
was issued even according to the State in terms of the
recommendations made by the Ethics Committee alone. It was
8 stated :

"4. Accordingly, Sri Y. Raja Ramchandar, MLA (A 1) has
submitted his written apology to the Committee and
remitted to the Government an amount of Rs.60,000/-
(Rupees Sixty Thousand only) vide Cghallan 1234, dated
c 3.10.2007, towards medical reimbursement claim which
was wrongly obtained for the angioplasty operation of his
wife, and the Committee further recommended to the case
against Sri Y. Raja Ramchandar, MLA.

D 5. Now, the Government after careful examination of the
representation of Sri Y. Raja Ramchandar, MLA (A1)
Kaikaluru, and also taking into consideration of the report
of the Ethics Committee, have decided to accept the
recommendations of the Ethics Committee, and
E accordingly, decided to withdraw prosecution against Sri
Y. Raja Ramchander, MLA, Kaikaluru in Cr.No.18/2005
under Section 468, 471 and 420 read with 120-8 of CID
Police Station, Hyderabad and also decided to withdraw
the prosecution against Sri J. Veeraswamy (A2) in
F Cr.No.18/2005 under Section 468, 471 and 420 read with
120-8 of CID Police Station, Hyderabad."

17. The Ethics Committee had no jurisdiction to make
such recommendations. If the State had acted on the basis of
recommendations made by a body who had no role to play, its
G action would be vitiated in law, Recommendations of the Ethics
Committee being unauthorized, the action of the State would
attract the doctrine of malice in law. [(See The Manager, Govt.
Branch Press & Anr. v. 0.8. Belliappa [AIR 1979 SC 429];
M.P. State Co-operative Dairy Federation Ltd. & Anr. v.
H Rajnesh Kumar Jamindar & Ors. [2009 (6) SCALE 17]; and
SRI YERNENI RAJA RAMCHANDER @ RAJABABU 507
v. STATE OF A.P. & ORS. [S.B. SINHA, J.]

-+- Swaran Singh Chand v. Punjab State Electricity Board & Ors. A
[2009 (7) SCALE 622].

18. Even otherwise, the action on the part of the State, in
bur opinion, suffers from malice on fact as well. The State is
the protectbr of law. When it deals with a public fund, it must
8
act in terms of the procedure established by law. In respect of
public fund, the doctrine of public trust would also be applicable
so far as the State and its officers are concerned. It could not
save and except very strong and cogent reasons have issued
-+ the said G.O. despite the orders of the High Court.
c
19. lhe State was not acting in public interest but in private
interest. The State has shown unusual interest in the appellant
Which is not expected of an executive which believes in good
governance. It is really a matter of great surprise that the State
independently filed a revision application before the High Court. D
-¥ It did not stop at that. It has also filed a Special Leave Petition
before us against the judgment of the High Court. This Court
has tirnes without number noticed the unusual interest shown
and unusual orders passed by the State Governments to protect
its own ministers and Members of Legislative Assembly. We E
may in this regard notice Epru Sadhakar & Anr. v. Govt. of AP
& Ors. [(2006) 8 SCC 161] and M.P. Special Police
--+ Establishment v. State of M.P., [ (2004) 8 SCC 788 ],

20. We, therefore, are of the opinion that the impugned
judgment is unassailable. However, there cannot be any doubt
F
whatsoever that the High Court committed an error in entering
into the merit of the matter. In Vijaykumar Baldev Mishra
(supra), this Court held :

"17. While refusing to grant permission, the Designated G
• ->(
Court, in our opinion, was not correct in expressing its
opinion on the merits of the matter and the effect of
confessions made in terms of the provisions of TADA. It
was, however, also not necessary to consider as to
whether the action of the Public Prosecutor as also the H
508 SUPREME COURT REPORTS [2009) 12 S.C.R.

A State was bona fide or not. Moreover, bona fide on the
part of the Public Prosecutor itself cannot automatically
lead to grant of consent. There are other circumstances
also which are required to be taken into consideration."

21. In view of the aforementioned decision of this Court, it
8
is directed that the learned Magistrate shall proceed to deal
with the matter independently and without in any way being
influenced by any observations or findings made therein as if
they do not exist.

C 22. These appeals are dismissed.

23. We, however, in the peculiar facts and circumstances
of this case, also direct that the State shall pay a sum of
Rs.1,00,000/- to the Andhra Pradesh State Legal Services
0 Authority within four weeks from date.
K.K.T. Appeals dismissed.