Ms. Ranjana Agnihotr... v. Union Of India Throu..., Allahabad High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
Sheonandan Paswan vs. State of Bihar (1987) 1 SCC 288	Interpretation of Section 321 Cr.P.C.; necessity of good faith, public policy, and justice in withdrawal of prosecution; requirement of court's consent; discretionary power of Public Prosecutor.	The Court emphasized that withdrawal applications must be based on legitimate grounds advancing public justice and that reasons must be assigned by the Public Prosecutor and the court. The discretion is to be exercised judicially, not mechanically.
Abdul Karim and others vs. State of Karnataka (2000) 8 SCC 710	Guidelines for Public Prosecutor in withdrawal of prosecution under TADA; requirement to consider public peace, risk assessment, and administration of justice.	The Court held that withdrawal must be based on material and independent satisfaction of the Public Prosecutor, and not merely on political or administrative convenience.
State of Uttar Pradesh vs. Ram Naresh Pandey AIR 1957 SC 389	Judicial scrutiny of consent to withdraw prosecution under old Section 494 Cr.P.C.; role and discretion of Public Prosecutor and Court.	The Court held that the Court's consent should not be lightly given and must be based on proper scrutiny to prevent abuse of process.
Deepak Aggarwal vs. Keshav Kaushik and others (2013) 5 SCC 277	Role and duties of Public Prosecutor as an officer of the court; requirement of fairness, independence, and protection of human dignity in criminal prosecution.	The Court reiterated the Public Prosecutor’s duty to act fairly and independently, refusing evidence obtained unlawfully and ensuring a fair trial.
Jasbir Singh vs. Vipin Kumar Jaggi (2001) 8 SCC 289	Nature of Section 321 Cr.P.C. power; distinction from pardon under Section 307; unconditional withdrawal with court’s consent.	The Court held that withdrawal under Section 321 is unconditional but must be in the interest of administration of justice.
S.K. Shukla and others vs. State of U.P (2006) 1 SCC 314	Public Prosecutor’s freedom and duty; court’s power to assess withdrawal application objectively; rejection of mechanical withdrawal.	The Court held that the Public Prosecutor cannot act as a mere post box to the State Government and the court may reject withdrawal applications if not justified.
Mahmadhusen Abdulrahim Kalota Shaikh (2) vs. Union of India (2009) 2 SCC 1	Section 321 Cr.P.C. as codified judicial review ensuring judiciary’s final say on withdrawal applications.	The Court held that the judiciary has the ultimate authority to approve or disapprove withdrawal applications, emphasizing the judicial function involved.
State of Gujarat vs. K.V. Joseph (2001) 2 SCC 156	Use of temperate language in court directions; limits on High Court’s jurisdiction in certain executive matters.	The Court noted the High Court’s lack of jurisdiction to usurp powers of appropriate agencies and emphasized judicial propriety.
Vijaykumar Baldev Mishra vs. State of Maharashtra (2007) 12 SCC 687	Necessity for courts to apply mind to grounds for withdrawal under Section 321 Cr.P.C.	The Court held that courts must consider the grounds for withdrawal carefully before granting permission.
Rahul Agarwal vs. Rakesh Jain and another 2005 SCC (Cri) 506	Conditions for allowing withdrawal under Section 321 Cr.P.C.; interest of justice as paramount consideration.	The Court held withdrawal is permissible only when valid reasons are shown and it advances the cause of justice.
R.N. Nanjundappa vs. T. Thimmiah and another (1972) 1 SCC 409	Executive power of the State; absence of constitutional bar; limits on executive action.	The Court held that executive power may be exercised unless barred by Constitution or law, but not to contravene any law.
Subhash Chander vs. State (Chandigarh Administration) and others (1980) 2 SCC 155	Limits on executive discretion to withdraw prosecutions; need for balancing public peace and justice.	The Court held that the power to withdraw prosecution must be cautiously exercised and is subject to judicial control.
Ram Jawaya Kapur, Rai Sahib vs. State of Punjab AIR 1955 SC 549	Scope of executive power under Articles 73 and 162 of the Constitution.	The Court held that executive power includes all powers necessary to carry out constitutional aims and objects.
State of Orissa vs. Dhaniram Luhar (2004) 5 SCC 568	Requirement of reasoned orders in judicial and quasi-judicial decisions.	The Court emphasized that reasons are indispensable for judicial orders to ensure fairness and transparency.
Sudhir Chandra vs. Tata Iron & Steel Co. Limited AIR 1984 SC 1064	Necessity of reasons in administrative and quasi-judicial orders.	The Court held that giving reasons is a basic principle of natural justice and essential for just decisions.
Bachan Singh vs. State of Punjab AIR 1982 SC 1235	Rule of law excludes arbitrariness; arbitrariness violates Article 14.	The Court held that arbitrary or unreasonable exercise of power is denial of rule of law and unconstitutional.
Naraindas vs. State of M.P. AIR 1974 SC 1232	Uncontrolled discretionary power incompatible with equality before law (Article 14).	The Court held that discretionary power must be exercised within defined limits and reasonable discretion.
Jayanti Lal Amrit Lal Shodhan vs. F.N. Rana AIR 1964 SC 648	Equivalence of executive and administrative powers; separation of powers under Constitution.	The Court held that executive power includes administrative functions and is not residual but co-extensive with legislative power.
Shamsher Singh vs. State of Punjab 1974 SC 2192	Constitutional interpretation of executive power and its scope.	The Court reaffirmed the scope of executive power and its constitutional limits under Articles 73 and 162.
State of Maharashtra vs. Zameer Ahmed Latifur Rehman (2010) 5 SCC 246	Constitutional validity and scope of UAPA amendments; offences relating to terrorism and national security.	The Court held that offences under UAPA and related statutes relate to defence of India and require Central Government’s involvement in prosecution decisions.
G.V. Ramanaiah vs. Superintendent of Central Jail, Rajahmundry (1974) 3 SCC 531	Scope of offences under IPC relating to Union List entries; Central Government’s exclusive competence.	The Court held that offences under IPC related to Union List matters fall within Central Government’s jurisdiction for sanction and withdrawal decisions.
Mc Dermott International Inc. vs. Buru Standard Co. Limited (2006) SLT 345	Importance of reasoned decisions in administrative and arbitral awards.	The Court held that reasons assure non-capriciousness and provide clarity on decisions adversely affecting parties.

Ashok Pal Singh, J.:-

A number of offences were committed between the period 2000 and 2009, including under various provisions of The Explosive Substances Act 1908, The Prevention of Terrorism Act 2002, The Unlawful Activities (Prevention) Act 1967, The Official Secrets Act 1923, offences under Chapter VI of the Indian Penal Code 1860 and The Criminal Law Amendment Act in various districts viz. Varanasi, Gorakhpur, Bijnor, Lucknow, Kanpur Nagar, Rampur and Barabanki. The crimes, thus committed, included bomb-blasts at different places at different times in various districts. Consequent to commission of crimes, first information reports (F.I.Rs.) were registered. On investigation, incriminating material was collected against certain accused whereupon charge-sheets have been filed in various Courts. In some cases, trial has commenced, whereas in some cases accused are absconding.

In pursuance of instructions issued by the State Government, the Public Prosecutors, Incharge of those cases, moved applications for withdrawal from the prosecution of the accused in the said cases.

2. The petitioners preferred Writ Petition No. 4683 (MB-PIL) of 2013, thereby challenging vires of Section 321 of the Code of Criminal Procedure 1973 (for short 'Cr.P.C.') as well as the instructions issued by the State Government to the Public Prosecutors for withdrawal from the prosecution. The petitioners seek direction to ensure trial of the cases to be concluded in accordance with Law.

Division Bench of this Court, after providing opportunity of hearing to learned Additional Advocate General of the State as well as counsel for the Union of India and going through the affidavits/pleadings furnished by the parties, formulated four questions, and by order dated 07.6.2013 requested the Hon'ble Chief Justice of the High Court to constitute a Larger Bench. The questions, thus framed by the Division Bench, are as under:

(i) Whether the State Government can issue Government Order for withdrawal of cases without there being any request by the public prosecutor in charge of the case?

(ii) Whether the prosecution can be withdrawn without assigning any reason as to why the prosecution was sought to be withdrawn and is therefore unconstitutional and violative of Article 14 of the Constitution of India?

(iii) Whether the prosecution of offence relating to Central Act be withdrawn without taking permission from the Central Government?

(iv)Whether the State Government after giving sanction for prosecution, review its own order by issuing orders for withdrawal of the cases?"

3. Hon'ble Chief Justice by order dated 15.7.2013 has referred the matter to the present larger Bench to decide the questions formulated by Division Bench (supra). In consequence thereof, we have heard the learned counsel representing the parties.

4.From a perusal of the referral order of the Division Bench, it appears that in spite of order passed by the Court, the State did not place on record the copy of the instruction issued by it to different Prosecuting Officers of the respective courts for withdrawal of cases. To ascertain the factual matrix, we directed the State Government to place the entire material on record including the instruction issued by the government and the copy of applications moved by the respective presenting officers.

5. Mr. H.S. Jain, learned counsel appearing on behalf of the petitioner as well as Mr. Anoop George Chaudhary, learned Senior Counsel representing the State of U.P and Mr. K.C. Kaushik, learned Addl. Solicitor General of India along with other counsel have addressed the court with lengthy argument. Mr. Chaudhary, learned Senior Counsel further while addressing the court elaborately pressed to consider the scheme of Section 321 CrPC. He submits that for proper answer to the question referred to the Larger Bench, it shall be appropriate that whole of the scheme and material relating to grant of permission to withdraw criminal prosecution should be looked into. Accordingly, after considering the argument advanced by the learned counsel, we proceed to answer the questions referred after considering the entire scheme and related material with regard to controversy in question under the following heads :

(i) Facts

(ii) Preliminary Objection

(iii) Maintainability of the Reference to Larger Bench

(iv) Terrorism

(v) Withdrawal of case (Section 321 of Cr.P.C.)

(vi) Role of State and Central Govt.

[A] U.P. Amendment

[B] Proviso

(vii) Nature of the order or instruction of the State Govt.

(viii) Conclusive discussion and finding over the issues involved

(ix) Opinion on Questions referred

(i) FACTS

6. The Principal Secretary (Home) has filed an affidavit dated 23.8.2013 and the copies of First Information Report, charge-sheet as well as copies of the Government Order/instruction issued by the State Government to different presenting officers have been placed on record. Copies of the applications moved by the presenting officers have also been brought on record. From the material received in pursuance to the order of this Court, it appears that the trial in almost all the cases are proceeding and the charges framed. In the mid of trial in pursuance to the instruction issued by the State Govt., applications for withdrawal of the cases under Section 321 CrPC were moved. One of the applications filed by the presenting officer relating to pending criminal case under Crime No. 1891/2007, P.S. Kotwali Nagar, Barabanki has been rejected by the trial Court vide order dated 10.5.2013. Feeling aggrieved, the state has preferred a revision which seems to be pending.

7. The particulars of the cases may be summarised as under :

मिस0बेंच नं0-4683/2013 रंजना अग्निहोत्री व अन्य बनाम यूनियन आफ अण्डिया व अन्य से सम्बन्धित अभियोगों की सूची जिनके वाद शासन द्वारा विचारोपरान्त वापस किये जाने के आदेश जारी किये गये हैं ।

क्रमांक

जनपद व थाना

म्ुाकदमा अपराध संख्या व धारा

अभियुक्तगण का नाम

न्याय विभाग

द्वारा निर्गत मुकदमा वापसी के आदेश की तिथि

अभियोजन अधिकारी द्वारा मा0 न्यायालय के वाद वापसी हेतु दाखिल किये गये प्रार्थना पत्र की तिथि

म0न्यायालय द्वारा लिया गया निर्णय (यदि कोई हो तो)

अभ्युक्ति

बरामदगी

वाराणसी दशाश्वमेघ

11/06 धारा 3/4/5 विस्फोटक पदार्थ अधिनियम

1-शमीम उर्फ सरफराज

दिनांक 5-3-2013

05-06-2013

लम्बित

वाद वापसी हेतु दिनांक 28-9-2013 नियत है ।

लावारिस झोला, एक अदद प्रेशर कुकर,

घडी व नष्टशुदा विस्फोटक पदार्थ के अवशेष (घटनास्थल से)

गोरखपुर कैण्ट

812/07 धारा 3/4/5 विस्फोटक पदार्थ अधिनियम, 7 कि0ला0 अमे0 एक्ट, 16/17/23 विधि विरूद्ध क्रियाकलाप अधिनियम

1- मो0 तारिक काजमी

दिनांक 5-3-2013

15-5-2013

ल्म्बित

अभियुक्त को तलब किया गया है । अग्रिम तिथि 5-9-2013

बम के अवशेष

(घटनास्थल से)

बिजनौर नजीबाबाद

290/2002 धारा 3(1)4(1) शासकीय गोपनीयता अधिनियम-1923 भादवि

1-अहमद हसन उर्फ बाबू

दिनांक 22-1-2013

14-2-2013

लम्बित

प््राा0पत्र के निस्तारण हेतु 30-9-2013 नियत है ।

दो अदद भरतीय पासपोर्ट एक डायरी, चिटृठी (अभियुक्त के पास से )

लखनउ थाना वजीरगंज

1- मु0अ0सं0 380/2008 धारा 124ए, 153ए, 109, 114 भादवि

1-मुख्तार हुसेन

2-मोहम्मद अली

3-अजीजुर्रहमान

4-नौशाद हाफिज

5-नूरल इस्लाम

15-4-2013

18-5-2013 पूरक प्रार्थना पत्र 31-7-2013

ल्म्बित

5-9-2013 बहस में

निल

लखनउ थाना हुसैनगंज

2-मु0अ0सं0 221/2007 धारा 115, 120बी, 121ए, 122, 124ए भादवि

1- याकूब

18-4-2013

18-4-2013 पूरक प्रार्थना पत्र 6-6-2013

ल्म्बित

5-9-2013 साक्ष्य में

दो पालिथीन पैकेट हाई एक्पलोसिव टाइमर डेटोनेटर, बैटरी, 2000/- रूपये मोबाईल मयसिम (अभियुक्त के कब्जे से )

लखनउ थाना हुसैनगंज

3-मु0अ0सं0 222/2007 धारा 4/5 विस्फोटक पदार्थ अधिनियम व 16 /18/23 विधि विरू़़द्ध क्रियाकलाप अधिनियम

1- याकूब

18-4-2013

18-4-2013 पूरक प्रार्थना पत्र 6-6-2013

लम्बित

5-9-2013 साक्ष्य में

उपरोक्त

लखनउ थाना नाका

4- मु0अ0सं0 220/2007 धारा 121ए, 122, 115, 120बी, 124 भादवि

1- नासिर हुसैन

18-4-2013

18-5-2013 पूरक प्रार्थना पत्र 6-6-2013

लम्बित

5-9-2013 बहस में

2.35 किग्रा0 आर0डी0एक्स, तीन डेटोनेटर, एक टाइमर, 02 बैटरी (अभियुक्त के कब्जे से )

लखनउ थाना नाका

5-मु0अ0सं0 221/2007 धारा 4/5 विस्फोटक पदार्थ अधिनियम व 16 /18/23 विधि विरू़़द्ध क्रियाकलाप अधिनियम

1- नासिर हुसैन

18-4-2013

18-5-2013 पूरक प्रार्थना पत्र 6-6-2013

लम्बित

5-9-2013 बहस में

उपरोक्त

लखनउ थाना कैसरबाग

6-मु0अ0सं0 213/ 2000 धारा 121, 121ए, 122, 123, 124, 124ए भादवि व 3 विस्फोटक पदार्थ अधि0

1-मा0कलीम

2-सैयद अब्दुल मोबीन

18-4-2013

प्रार्थनापत्र दाखिल नहीं किया गया है ।

313 के बयान की कार्यवाही प्रचलित है । अग्रिम तिथि 17़.9.2013

बम के अवशेष, लोहे के टुकड़े एल्यूमीनियम तार व बैटरी

(घटनास्थल से)

कानपुर नगर थाना सचेण्डी

1-मु0अ0सं0-332/09 धारा-115, 120बी0, 419, 420, 467, 468, 471 भादवि

1- इम्तियाज अली

18-4-2013

15-6-2013

लम्बित

साक्ष्य में प्रार्थना पत्र के निस्तारण हेतु दिनांक 7-9-2013 नियत है ।

गेपनीय सैन्य सूचनायें, हस्तलिखित अभिलेख, टेलीफोन, पाकेट डायरी, सिम मोबाईल फोन (अभियुक्त के कब्जे से )

थाना बिठूर

2-मु0अ0सं0-176/2009 धारा-115, 121, 121ए, 123 भादवि

1-सितारा बेगम

18-4-2013

10-6-2013

लम्बित

साक्ष्य में प्रार्थना पत्र के निस्तारण हेतु दिनांक 13-9-2013 नियत है ।

एक लेडीज पर्स, एक Advocate General in view of the query made by the Court has submitted a Chart containing the details of criminal cases indicating therein the date when application for withdrawal of criminal cases were moved. For convenience, the chart in its totality signed by the Joint Secretary(Home) Shri R.P. Singh is reproduced as under :

Sl.

No.

Case Crime No.

Sections as per Charge Sheet

Police Station

District

Session Trial No.

Sections under which charges framed

Date of moving application in the Hon'ble Court for withdrawal

11/2006

Under Sections 3/4/ 5 Explosive Substance Act

Dashaswamedh

Varanasi

Case yet not committed

Accused absconding, hence charges have yet not been framed

5.6.2013

812/2007

Under Sections 3/4/5 Explosive Substance Act, 7 Criminal Law Amendment Act, 16/17/23 the Unlawful Activities (Prevention) Act

Cantt

Gorakhpur

462/2011

Accused absconding, hence charges have yet not been framed

15.5.2013

290/2002

Under Sections 3(1)4(1) State Confidential act

Nizibabad

Bijnor

Case yet not committed

Under Sections 3(1)4(1) State Confidential Act

14.2.2013

380/2008

Under Sections 124A, 153A, 109, 114 Indian Penal Code

Wazirganj

Lucknow

1373/2009

Under Sections 124-A, 153A, 109, 114 Indian Penal Code

18.5.2013

221/2007

Under Sections 115, 120B, 121, 121A, 122, 124A Indian Penal Code

Hussainganj

Lucknow

165/2008

Under Sections 115, 120B, 121, 121A, 122, 124A Indian Penal Code

18.5.2013 Supplementary Affidavit 6.6.2013

222/2007

Under Sections 4/5 Explosive Substance Act and 16/18/20/23 Unlawful Activities (Prevention) Act

Hussainganj

Lucknow

158/2008

Under Sections 4/5 Explosive Substance Act and 16/18/20/23 Unlawful Activities (Prevention) Act

18/5/2013 Supplementary Affidavit 6.6.2013

220/2007

Under Sections 121, 121A, 122, 115, 120B, 124 Indian Penal Code

Naka

Lucknow

35/2008

Under Sections 121, 121A, 122, 115, 120B, 124 Indian Penal Code

18.5.2013 Supplementary Affidavit 06.06.2013

221/2007

Under Sections 4/5 Explosive Substance Act and 16/18/20/23 Unlawful Activities (Prevention) Act

Naka

Lucknow

36/2008

Under Sections 4/5 Explosive Substance Act and 16/18/20/23 Unlawful Activities (Prevention) Act

18.5.2013 Supplementary Affidavit 06.06.2013

213/2000

Under Sections 121, 121A, 122, 123, 124, 124A Indian Penal Code and 3 Explosive Substance Act

Qaiserbagh

Lucknow

292/2008

Under Sections 121, 121A, 122, 123, 124, 124A Indian Penal Code and 3 Explosive Substance Act

25.9.2013

332/2009

Under Sections 115, 120B, 419, 420, 467, 468, 471 Indian Penal Code

Sachendi

Kanpur Nagar

27545/2009

Under Sections 115, 120B, 419, 420, 467, 468, 471 Indian Penal Code

15.6.2013

176/2009

Under Sections 115, 121, 121A, 123 Indian Penal Code

Bithoor

Kanpur Nagar

1586/2010

Under Sections 115, 121, 121A, 123 Indian Penal Code

10.6.2013

124/2000

Under Sections 307, 324, 427, 120B, 121, 121A, 122, 123 124 A Indian Penal Code and 3/5 Explosive Substance Act

Swaroop Nagar

Kanpur Nagar

49/2011 (In Justice Juvenile Court)

Under Sections 307, 324, 427, 120B, 121, 121A, 122, 123 124 A Indian Penal Code and 3/5 Explosive Substance Act

11.6.2013

506/2002

Under Sections 121, 121A Indian Penal Code and 1(A) Prevention of Terrorist Act

Ganj

Rampur

308/2003

Under Sections 121, 121A Indian Penal Code and 1(A) Prevention of Terrorist Act

30.5.2013

1891/2007

Under Sections 121, 121A, 122, 124A, 332 Indian Penal Code and 4/5 Explosive Substance Act and 16/18/20/23 Unlawful Activities (Prevention) Act

Kotwali Nagar

Barabanki

310/2008

Under Sections 121, 121A, 122, 124A, 332 Indian Penal Code and 4/5 Explosive Substance Act and 16/18/20/23 Unlawful Activities (Prevention) Act

03.05.2013

9. In all the cases, referred in the preceding para, allegations are almost of identical nature relating to serial bomb blasts in the State of U.P at different places or recovery of incriminating material. The contents of all the First Information Reports prima facie reveals that the accused are members of terrorist organisation. Either, they have been trained in Pakistan or working as ISI agent in the country or are the active or sleeping partners of terrorist organisation. In some First Information Reports, it has been mentioned that pro-Pakistan slogans were raised and names of terrorist organisation have also been referred like Indian Mujahideen etc.

10. Mr. Anoop George Chaudhary, learned Senior Counsel has vehemently argued with submission that the decision taken and consent granted by the State Government is institutional and well informed decision by integrated participation of government machineries. He invited attention to the letter of the Chief Secretary dated 28.3.2012 in pursuance to which things were moved on followed by letter dated 5.7.2012 sent by the Principal Secretary, Home to all the District Magistrates and Director General of Police to provide information in a prescribed format. For convenience, the letter dated 28.3.2012 is reproduced as under :

समयबद्ध

संख्या: 17एम (3)/35-आ-1/2012-8

दिनांक: 28 मार्च, 2012

वर्तमान सरकार की विकास संबंधी प्राथमिकताओं के अतिरिक्त कुछ अन्य प्राथमिकतायें भी हैं । इन प्राथ्मिकताओं का विवरण संलग्नक में दिया गया है । प्राथमिकताओं के अनुपालन हेतु रूपरेखा/कार्य-योजना आदि समयबद्ध

कृपया सम्बन्धित विभागों द्वारा इन प्रशासनिक प्राथमिकता में निहित वित्तीय उपाशय, यदि कोई हो, का आंकलन किये जाने के साथ ही उनके अनुपालन की व्यवस्था की रूपरेखा/कार्य योजना तैयार कर पूर्ण विवरण/सूचना तैयार कराकर दिनांक 02 अपै्रल, 2012 से पूर्व नियोजन विभाग को उपलब्ध करायी जायेगी ।

क1पया इस कार्य को प्रथम वरीयता प्रदान की जाये ।

ह0

जावेद उस्मानी

मुख्य सचिव ।

संबंधित विभाग के प्रमुख सचिव/सचिव

प्रतिलिपि निम्नलिखित को सूचनार्थ एवं आवश्यक कार्यवाही हेतु प्रेशित:-

1- समाज कल्याण आयुक्त/कृषि उत्पादन आयुक्त/अवस्थापना एवं औद्योगिक विकास आयुक्त ।

2- सचिव, मुख्यमंत्री ।

3- स्आफ आफीसर, मुख्य सचिव ।

ह0

राज प्रताप सिंह

प्रमुख सचिव, नियोजन ।

Along with the aforesaid letter dated 28.3.2012, priorities of the Government have been annexed in three pages, out of which, priority No. 3 relates to present controversy. The priority has been indicated under the Head, "orZeku ljdkj dh vU; izkFkfedrk;sa The Item No. 3 of the priorities of the Government is reproduced as under :

वर्तमान सरकार की अन्य प्राथमिकतायें

मद/प्राथमिकता

संबंधित विभाग

अल्पसंख्यकों के हितों का संरक्षण

3- दहशत गदर्ी के खिलाफ कार्यवाही की आड़ में उत्तर प्रदेश के जिन बेकसूर मुस्लिम नौजवानों को जेलों में डाला गया है, उन्हें फौरन रिहा ही नहीं कराया जायेगा बल्कि मुआवजे के साथ इन्साफ भी दिया जायेगा और कलंकित करने वाले अधिकारियों को दण्डित किया जायेगा ।

गृह/कारागार/न्याय/नियुक्ति

11. The letter sent by the Principal Secretary, Home to various authorities of the State Government dated 5.7.2012 is reproduced as under :

शीर्ष प्राथमिकता

संख्या 341/छः-पु-15-2012

प्रेषक,

आर0एम0 श्रीवास्तव,

प्रमुख सचिव, गृह

उत्तर प्रदेश शासन ।

सेवा में,

1- समस्त जिलाधिकारी,

उत्तर प्रदेश ।

2- पुलिस महानिदेशक/

वरिष्ठ पुलिस अधीक्षक/पुलिस अधीक्षक, प्रभारी जनपद

उत्तर प्रदेश ।

3- अपर पुलिस महानिदेशक, रेलवेज, लखनउ ।

गृह (पुलिस) अनुभाग-15 लखनउ: दिनाॅक 05 जुलाई, 2012

विषय:- दहशतगदर्ी के खिलाफ कार्यवाही की आड में बेकसूर नौजवानों का उत्पीड़न रोकने के सम्बन्ध में

महोदय,

उपयर्ुक्त विषय के सम्बन में मुझे यह कहने का निदेश हुआ है कि शासन के संज्ञान में यह तथ्य आया है कि दहशतगदर्ी के खिलाफ कार्यवाही की आड़ में उत्तर प्रदेश के अनेक बेकसूर नौजवानों के विरूद्ध उत्पीड़नात्मक कार्यवाही विगत वषर्ों में की गई है । इस सम्बन में कार्ययोजना तैयार कर बेकसूरों का उत्पीड़न रोक कर उनको इंसाफ दिया जाना वर्तमान सरकार की प्राथमिकता है ।

2- इसके लिए शासन स्तर पर विचार करने हेतु जनपद स्तर के प्रत्येक प्रकरण में ससुगत सूचना की आवश्यकता है । ऐसे प्रकरण वे हो सकते हैं जिनमें संलग्नक-1 की सूची में वणर्ित अधिनियमों की इंगित धाराओं/प्राविधानों के समूह के अन्तर्गत एफ0आई0आर0 दर्ज हुयी हो और प्रकरण अभी भी विवेचनाधीन हों या अभियोजन प्रचलित हो । इनमें ऐसे भी प्रकरण हो सकते है। जिनमें सफल अभियोजन के पश्चात व्यक्ति मा0 न्यायालय से दण्डित हुए हों और वर्तमान में कारागार में निरूद्ध हों । यह सूचना प्रत्येक जनपद के सम्बन्ध में 1-1-2000 से अग्रेतर अवधि के लिए वांछित है ।

अतः अनुरोध है कि कृपया उपरोक्त सूचना संलग्नक-2 के प्रारूप के कालम 1 से 29 पर एक पक्ष के अन्दर प्राथ्मिकता के आधार पर ाुलिस महानिदेशक, उ0प्र0 को प्रेषित करने का कष्ट करें । पुलिस महानिदेशक, प्राप्त सूचना का सम्यक रूप से परीक्षण एवं संकलन कर निधर्ारित प्रारूप (संलगनक-2) के कालम 1 से 29 पर वांछित सूचना अतिशीघ्र अधोहस्ताक्षरी को उपलब्ध कृपया करायेंगे ।

संलग्नक - उपरोक्तानुसार

भवदीय

आर0एम0श्रीवास्तव

प्रमुख सचिव ।

12. In pursuance to the afore-mentioned letter, the District Magistrates, SSPs and District Government Counsels (Criminal) have forwarded their comment through the District Magistrate concerned. The comment sent by the District Magistrate of districts concerned are in 13 columns. Columns 10, 11, 12 and 13 relate to the opinion of the Presenting Officers, SSP and District Magistrates. It shall be appropriate to bring on record some of the opinion expressed by the authorities concerned of different districts. Almost in every pending case, separate opinion has been sent with dissent note. For convenience, the opinion expressed in some cases as sample are reproduced hereinafter :

[A] BIJNOR

The Presenting Officer, Bijnore has also submitted his views through the District Magistrate concerned. For convenience, columns 5, 6, 7, 8, 9, 10, 11, 12 and 13 are reproduced as under :

वाद के तथ्य

वादी श्री हरिप्रकाश कसाना प्रभारी निरीक्षक नजीबाबाद को दिनांक 21.06.2002 समय 3.30 बजे साय को टेलीफोन से प्राप्त सूचना के आधार पर, कि दो व्यक्ति बाबू तथा वासिफ निवारीगण नजीबाबाद रेलवे लाईन के किनारे स्टेशन से दक्षिण की तरफ बैठे हैं। जो पाकिस्तान की खुफिया एजेंसी आई0एस0आई0 से सम्बन्धित है । भारत की सुरक्षा प्रबन्ध के खिलाफ षडयंत्रकारी योजना रच रहे है । इस सूचना के आधार पर वासिफ व अहमद हसन को पकडा तथा वासिफ की जामा तलाशी में वासिफ के दाहिने हाथ से एक किताब सेना आयुद्ध कोर संक्षिप्त इतिहास 1775-1991 व एक सवर्े आफ इण्डिया निमर्ित पांच वालिस्त लम्बा देहरादून परिदशर्ी मानचि़त्र तथा अहमद हसन की जामा तलाशी में पहनी पैण्ट की दाहिनी जेब से दो भारतीय पासपोर्ट तथा बायी जेब से एक डायरी जिसमें पाकिस्तान के लाहौर, इस्लामाबाद व उत्तर प्रदेश के कुछ व्यक्तियों के नाम पते तथा टेलीफोन अंकित पायंे गये ।

उक्त बरामदशुदा गोपनीय दस्तावेज व दो पासपोर्ट जिनका दुरूपयोग पाकिक्तान जाकर वहां के आई0एस0आई0 ऐजेण्टों से मिलकर आमर्ी से सम्बधित मानचित्र देकर अपने देश की सुरक्षा को खतरा पैदा कर रहे है । अतः शासकीय गोपनीयता अधिनियम तथा पासपोर्ट अधिनियम की धारा 3(1) 4 (1) शासकीय गोपनीयता अधिनियम तथा पासपोर्ट अधिनियम 1967 की धारा 10(3) के अन्तर्गत अभियुक्तगण को हिरासत में लेकर फर्द तैयार की गई।

वादी पक्ष की चोटों का विवरणः-

शून्य

विवेचना के दौरान बरामदगीः-

वासिफ की जामा तलाशी में वासिफ के दाहिने हाथ से एक किताब सेना आयुद्ध कोर संक्षिप्त इतिहास 1775-1991 व एक सवर्े आफ इण्डिया निमर्ित पांच वालिस्त लम्बा देहरादून परिदशर्ी मानचित्र तथा अहमद हसन की जामा तलाशी में पहनी पैण्ट की दाहिनी जेब से दो भारतीय पासपोर्ट तथा बायी जेब से एक डायरी जिसमें पाकिस्तान के लाहौर, इस्लामाबाद, उत्तर प्रदेश के कुछ व्यक्तियों के नाम पते तथा टेलीफोन अंकित पाया गये।

न्यायालय में मुकदमें की अद्यतन स्थितिः-

दिनांक 14.12.2012 वास्ते साक्ष्य नियत है ।

यदि कोई का्रस केस हो तो उसका विवरण तथा अद्यतन स्थितिः-

शून्य

केस डायरी में उपलब्ध साक्ष्य का परीक्षण करते हुुए सफलता और दुर्बलता के बारे में पूर्ण विवरणः-

अभियुक्त वासिफ के विरूद्ध पचर्ा नं0 17 दिनांकित 18.09.2012 के द्वारा विवेचना प्रचलित रखी गई है तथा अभियुक्त अहमद हसन उर्फ बाबू के विरूद्व आरोप पत्र प्रेषित किया गया है । केस डायरी में उपलब्ध साक्ष्य के आधार पर अभियुक्त अहमद हसन से बरामद पासपोर्ट को पासपोर्ट अधिकारी द्वारा दो अलग-2 नामों से तथा अलग-2 जन्म तिथियों के आधार पर जारी होना पाया है जिसके आधार पर अभियुक्तगण द्वारा वास्तविक तथ्यों को छिपाकर पासपोर्ट प्राप्त कर लेने से पासपोर्ट अधिनियम का अपराध किया जाना प्रमाणित हुआ है । जिसकी साक्ष्य पत्रावली में उपलब्ध है । अभियुक्त से बरामद डायरी में जो नम्बर अंकित है उसका सम्बन्ध पाकिस्तान के आई0एस0आई0 ऐजेण्टों से होने की साक्ष्य उपलब्ध हुई है तथा वाद की सफलता की पूर्ण आशा है ।

वाद वापसी के सम्बन्ध में अभियोजक का मतः-

अभियुक्त के कब्जे से विरोधाभासी तथ्यों के पासपोर्ट बरामद हुए है तथा डायरी जिसमें पाकिस्तान के लाहौर तथा इस्लामाबाद के लोगों के नम्बर है, बरामद हुआ है । अभियुक्त का कृत्य राष्ट्र्ीय सुरक्षा के प्रतिकूल है । मामला लोक महत्व का है । वाद वापसी का विरोध किया जाता है ।

सहायक अभियोजन अधिकारी

बिजनौर ।

महोदय,

मैं सहायक अभियोजन अधिकारी की राय से सहमत हॅू ।

ह0

31.10.2012

ज्येष्ठ अभियोजन अधिकारी,

ु बिजनौर।

वाद वापसी के सम्बन्ध में पुलिस अधीक्षक का मतः

ैच्व् के मत से संतुष्ट । वाद वापसी का विरोध किया जाता है ।

वाद वापसी के सम्बन्ध में जिला मजिस्ट्र्ैट का मतः-

ह0

31.10.2012

पुलिस अधिक्षक

बिजनौर

ख्ठ, ट।त्।छ।ैप्

With regard to Crime No. 11/06 under Columns 10, 11 and 12, opinion has been expressed as follows :

केस डायरी में उपलब्ध साक्ष्य का परीक्षण अभियोजन अधिकारी/लोक अभियोजक से कराकर साक्ष्य का विश्लेषण करते हुये अभियोजन की सफलता एवं दुर्बलता के बारे में पूर्ण विवरण दें -

पत्रावली में अभियुक्त के विरूद्ध प्यर्ाप्त साक्ष्य है अभियुक्त की उपस्थिति होने के पश्चात पत्रावली पूर्णकर सत्र-सुपूर्द की जायेगी, जहाॅ उसका विचारण सत्र न्यायालय के अभियोजक द्वारा किया जायेगा । पत्रावली में सजा हेतु साक्ष्य प्यर्ाप्त है ।

वाद वापसी के सम्बन्ध में संबंधित में संबंधित अभियोजन अधिकारी/लोक अभियोजक का स्पष्ट मत --

वाराणसी में आतंक फेलाने के उद्देश्य से कई विस्फोट किये गये थे उसी क्रम में दशाश्वमेध क्षेत्र में कुकर बम पकड़ा गया था जिससे विस्फोट करके दहशत फेलाने की मन्शा थी तथा इसमें कई अभियुक्त पकड़ गये । शमीम अभी भी फरार चल रहा है, उसकी उक्त क्रिया-कलाप समाज के विरूद्ध एवं आतंक वाद प्रकृति की है । जन-मानस के प्रतिकूल है ।

अतः उसके वाद वापसी का प्रबल विरोध किया जाता है ।

12-

वाद वापसी के सम्बन्ध में वरिष्ठ पुलिस अधीक्षक, वाराणसी का स्पष्ट मत -

विन्दु संख्या 11 में अभियोजन अधिकारी/लोक अभियोजक

द्वारा दिये गये मत से मैं सहमत हूॅ । वाद वापसी का प्रबल विरोध किया जाता है । वाद वापसी की संस्तुति नहीं की जाती है ।

13-

वाद वापसी के सम्बन्ध में जनहित के दृष्टिगत स्वयं का स्पष्ट मत--

मैं वरिष्ठ पुलिस अधीक्षक, वाराणसी के उपरोक्त मत से सहमत हूॅ । वाद वापसी का प्रबल विरोश किया जाता है । वाद वापसी की संस्तुति नहीं की जाती है ।

ख्ब्, ळव्त्।ज्ञभ्च्न्त्

With regard to Crime No. 812/2007, opinion in Columns No. 10, 11, 12 and 13 has been expressed as under :

केस डायरी में उपलब्ध साक्ष्य का परीक्षण अभियोजन अधिकारी/लोक अभियोजक से कराकर साक्ष्य का विश्लेषण करते हुए अभियोजन की सफलता एवं दुर्बलता के बारे में पूर्ण विवरण दें ।

तीनों बम विस्फोट का यह मामला आतंक फेलाने के उद्देश्य से भीड़भाड़ वाले महत्वपूर्ण स्थान पर किया गया है जो एक ही दिनांक 22-5-2007 को सायं काल में किया गया तथा जो साईकिल टगे हुए झोले में रखे बमों से हुआ था । इस विस्फोट से काफी लोगों को गम्भीर व हल्की चोटें आयी है । जिनका इलाज सदर अस्पताल गोरखपुर में हुआ है यह विस्फोट जानबूझाकर भीड़ भाड़ वाले महत्वपूर्ण स्थान ज्वलनशील व संबेदनशील स्थानों पर किया गया है जिससे भारी जन व धन की हानि हो और क्षेत्र में दहशत का माहौल बनें जिससे शहर का अमन चैन नष्ट हो, ये तीनों बम ब्लास्ट गोरखपुर के सबसे भीड़ भाड़ व वी.आई0पी0 माकर्ेट में किया गया था, घटना कारित करने वालों का इरादा तबाही मचाने का था और पूरे शहर व प्रदेश में अमनचैन खत्म करने का था ।

अभियुक्त मो0 तारिक काजमी के पास से जिला बाराबंकी में गिरप्तारी के दौरान हाई एक्सप्लोसिव जो आर0डी0एक्स0 इत्यादि बरामद हुआ था । अभियुक्त मो0 तारीक काजमी के विरूद्ध थाना कोतवाली जनपद बाराबंकी में भी अ0सं0 1891/07 धारा-121, 121ए, 122, 124एए 332 भा0दं0सं0, 4/5 विस्फोटक पदार्थ अधि0 धारा‘16, 18, 20, 23 अनलाफुल एक्अीविटीज ऐक्ट का मुकदमा पंजीकृत है तथा जनपद फेजाबाद व लखनउ में भी क्रमशः मु0अ0सं0- 3398/07 व 547/07 पंजीकृत है मो0 तारीक काजमी द्वारा अपने साथियों के साथ मिलकर ऋंखलाबद्ध बम विस्फोट कर देश की राष्ट्ीय एकता व अखण्डता को विखण्डित करने व अमन चैन खत्म ककरने का था । घटना में आहत व्यक्तियों व अभियुक्त का फोटो देखकर साइकिल दुकान मालिकों व मौलवी मदरसा ने पहचान किया और उसकी उपस्थिति दिनांक 21-5-2007 को जनपद गोरखपुर में थी, की पुष्टि किया । साइकिल दुकान मालिक व मौलवी मदरसा व चोटहिल साक्षीगण का साक्ष्य विशेष महत्वपूर्ण है, इसके अतिरिक्त घटना के अन्य साक्षी भी हैं जिनका साक्ष्य महत्वपूर्ण है । इस कारण अभियोजन की सफलता की पूर्ण सम्भावना है ।

वाद वापसी के संबंध में अभियोजन अधिकारीॅ/लोक अभियोजक का स्पष्ट मत-

वाद वापस किये जाने योग्य नहीं है ।

वाद वापसी के संबंध में वरिष्ठ पुलिस अधीक्षक का स्पष्ट मत-

वद वापसी योग्य नहीं है । वाद वापस नहीं किये जाने की संस्तुति की गई है ।

वाद वापसी के संबंध में जनहित के दृष्टिगत आपका स्पष्ट मत कारण सहित-

प्रभारी संयुक्त निदेशक अभियोजन जिला शासकीय अधिवक्ता (फौ0) तथा विरिष्ठ पुलिस अधीक्षक, गोरखपुर की आख्या से सहमत हॅू । जनहित में अभियोग वापसी की संस्तुति नहीं की जाती है ।

भवदीय

ह0

रवि कुमार एन,जी,

जिला मजिस्ट्ेट

गोरखपर ।

ख्क्, स्न्ब्ज्ञछव्ॅ

डतण् ।दनतंह ल्ंकंअए District Magistrate, Lucknow has written a letter dated 31/1/2013 indicating therein that the Presenting Officer had given dissenting note and it shall not be appropriate to withdraw the pending criminal cases. The Senior Superintendent of Police, Lucknow also expressed his view protesting the withdrawal of cases. The District Government Counsel Shri Praveen Kumar Srivastava and Laxman Prasad Dixit while expressing their opinion with regard to columns No. 10, 11, 12 and 13 observed as under :

10, केस डायरी में उपलब्ध साक्ष्य के अवलोकन से स्पष्ट है कि विवेचक द्वारा अभियुक्त उपरोक्त के विरूद्ध प्यर्ाप्त साक्ष्य संकलित करके न्यायालय में सही आरोपपत्र प्रस्तुत किया गया है ।

11, वाद वापसी के सम्बन्ध में स्पष्ट मत यह है कि न्यायालय में अभी तक परीक्षित गवाहान ने अभियुक्त के विरूद्ध प्यर्ाप्त साक्ष्य सफलता हेतु पाया जाता है तथा उक्त वाद में अभियुक्त के विरूद्ध मुकदमा उपरोक्त धारा में चलाने हेतु शासन द्वारा अभियोजन स्वीकृति प्रदान की गई है । ऐसी स्थिति में माननीय न्यायालय के पीठासीन अधिकारी के अनुमति से ही मुकदमा पापस हो सकता है ।

12, यह विन्दु पुलिस अधीक्षक की आख्या से सम्बन्धित है ।

13, उपरोक्त वाद की वापसी में जनहित को दृष्टिगत रखते हुए स्पष्टमत यह है कि अभियुक्त के कब्जे से बरामद विस्फोटक से सामान्य जन को काफल बड़ी क्षति हो सकती थी यदि अभियुक्त अपने उद्देश्य में सफल हो जाता । तथा बरामद विस्फोटक पदार्थ व अन्य वस्तुओं से स्पष्ट है कि यह जनहित के विरूद्ध कार्य करने तथा समाज में दहशत फेलाकर देश की एकता व अखझडता को प्रभावित करने की योजना को दशर््ित करता है । इसलिए जनहित में मुकदमा वापसी का कोई भी कारण प्रतीत नहीं होता है ।

अतः श्रीमानजी द्वारा माॅगी गयी विन्दुवार आख्या की रिपोर्ट सेवा में प्रेषित है ।

दिनांक 05/11/2012 ह0

प्रवीन कुमार श्रावास्तव

व

लक्ष्मण प्रसाद दीक्षित

सहायक जिला शासकीय अधिवक्ता

फौजदारी, लखनउ

ख्म्, ज्ञ।छच्न्त् छ।ळ।त्

The Assistant Presenting Officer has expressed his view that it is not a fit case to withdraw the prosecution. The opinion of the Presenting Officer has been reiterated by the District Magistrate. For convenience, the opinion of the Presenting Officer and others under Columns 10, 11, 12 and 13 are reproduced as under :

10, केस डायरी में उपलब्ध साक्ष्य का परीक्षण अभियोजन अधिकारी/लोक अभियोजक से कराकर साक्ष्य का विष्लेक्षण करते हुए अभियोजन की सफलता एवं दुर्बलता के बारे में पूर्ण विवरण दें ।

प्रश्नगत प्रकरण में किशेार अरशद ने अन्य सहअभियुक्तगण के साथ मिलकर धामर्िक विदृेश्य के चलते प्रतिबन्धित संगठन जैसेमोहम्मद, सिमी के साथ मिलकर 15 अगस्त के पूर्व दिनांक 14-08-09 को आर्य नगर चैराहे पर बम विस्फोट किये जिसमें पुलिस कर्मचारी व जनता के लोग घयल हुए तथा दुकाने क्षतिग्रस्त हुई । उक्त विस्फोट अभियुक्तगणों ने जम्मू काश्मीर में बढ़रहे मुलिमों पर अत्याचार व बाबरी मस्जिद विध्वंश जैसे भ्रामक अवधारणाओं के आधार पर धामर्िक उनमाद के चलते किये जिससे जन हानि हुई व देश की एकता व अखण्डता प्रभावित हुई है ।

मैंने विवेचक द्वारा संकलित साख्य व अभियोग दैनिकी का परिशीन कर लिया है । विवेचक द्वारा प्रेषित आरोप पत्र न्याय संगत है । मामले में मा0 किशोर न्याय बोर्ड ने अभियुक्त का कथन अन्तर्गत धारा 251 सीआरपीवी में अंकित कर लिया है जो कि पयर्ाप्त आधारों पर किया गया है । अभियोग दैनिकी और संकलित साक्ष्य के आधार पर अभियुक्त के विरूद्ध प्रथम दृष्टया अपराध बनता है । मेरी राय में किशोर का अपराध अतिगम्भीर एवं राष्ट् की एकता एवं अखण्डता के विरूद्ध है । यद्यपि सहअभियुक्तगण मा0 सत्र न्यायालय द्वारा दोषमुक्त हो चुके है । लेकिन प्रश्नगत का निस्तारण प्रथक व स्वतुत्र रूप से अलग किया जायेगा । और किशोर न्याय बोर्ड के समक्ष दी गई गवाही व गुणदोष के आधार पर मुकदमें की सफलता निर्भर करेगी । इस प्रकार की घटनाओं से जनता में भय व आतंक का माहौल पैदा होता है । तथा देश की एकता व अखंडता के विरूद्ध प्रभाव पड़ता है इस प्रकार के मुकदमें के वापस होने से जनता में कानून के प्रति अविश्वास पैदा होगा । मेरे मत से संकलित साक्ष्य व अभियोग दैनिकी के आधार पर प्रथम दृष्टतया अपराध बनता है । अभियोग वापसी का विरोध किया जाता है ।

11- वाद की वापसी के सम्बनध में सम्बन्धित अभियोजन अधिकारी एवं लोक अभ्यिोजक का स्पष्ट मत

उपरोक्त तथ्यों को दृष्टिगत रखते हुए वाद वापसी का विरोध किया जाता है

ह0

सहायक अभियोजन अधिकारी अभियोजक के मत से सहमत ।

कानपुर नगर । ह0

जे डी 6/11/12

12- वाद वापसी के सम्बन्ध में पुलिस अधीक्षक का मत:

संयुक्त निदेशक की आख्या से मैं सहमत हूॅ ।

पैरा 11 के मुताबिक ह0

एस एस पी कानपुर 1/2/13

13- वाद वापसी के सम्बन्ध में जनहित को दृष्टिगत रखते हएु आपका स्पष्ट मत कारण सहित:

उपरोक्त से सहमत ।

ह0

1/2/2013

ख्थ्, त्।डच्न्त्

The District Magistrate and Superintendent of Police, Rampur also with the concurrence of the Presenting Officer have expressed their views against withdrawal of prosecution. For convenience, opinion expressed in columns 10, 11 and 12 are reproduced as under :

केस डायरी में उपलब्ध साक्ष्य का परीक्षण अभियोजन अधिकारी/ लोक अभियोजक से कराकर साक्ष्य का विष्लेक्षण करते हुए अभियोजन की सफलता एवं दुर्बलता के बारे में पूर्ण विवरण दें ।

केस डायरी से उपलब्ध साक्ष्य व फर्द बरामदगी के सम्बंध में अभियोजन साक्षीगण के साक्ष्य पूर्ण हो चुके है तब परीक्षण अभियुक्त के बयान अन्तर्गत धारा 313 द0प्र0सं0 हेतु नियत है अभियोजन साक्ष्य से मुकदमें में सफलता में पूर्ण आशा है ।

वाद वापसी के सम्बन्धित शासकीय अधिवक्ता/फौजदारी, मुरादाबाद का स्पष्ट मत

1- पत्रावली व केस डायरी में उपलब्ध साक्ष्य एवं मामले की गम्भीरता को स्पष्ट रखते हुए अभियुक्तगण के राष्ट्ीय विरोधी कार्य से संलिप्त होने से देश की एकता व अखण्डता को उत्पन्न खतरे में ध्यान में रखते हुए वाद का वापस लिया जाना उचित प्रतीत नहीं होता है मैने संलग्न कागजात एवं शासकीय अधिवक्ता/फौज0 मुरादाबाद के मत का भली भांति अध्ययन किया मेरी राय से उपरोक्त वाद का वापसी लिया जाना न्यायोचित व उचित प्रतीत नहीं होता है ।

ह0

जी,के,एस, राघव

जिला शास,अधि,/फौज

मुरादाबाद

वाद वापसी के सम्बन्ध में जनहित में वरिष्ठ पुलिस अधीक्षक मत कारण सहित ।

वरिष्ठ पुलिस अधीक्षक

रामपुर ।

` The Superintendent of Police, Rampur has also written a letter dated 1-2-2013 showing his deep concern about State decision to withdraw cases. For convenience, the same is reproduced as under :

कायर्ालय पुलिस अधीक्षक जनपद रामपुर ।

पत्र संख्या रीडर-एसपी-/2013 दिनांक फरवरी , 2013

सेवा में ,

जिलाधिकारी

जनपद-रामपुर ।

विषय - विशेष सचिव, न्याय अनुभाग-5/फौजदारी उत्तर प्रदेश शासन, लखनउ के पत्र संख्या 4437-सीएम/सात-न्याय-5-2012-28-35/डब्लूसी/2012 दिनांक 30-10-2012 अभियुक्त मकसूद पुत्र इनायत हुसैन निवासी मौहल्ला नालापार अखाडा मल्ली खां थाना कोतवाली नगर जनपद रामपुर उत्तर प्रदेश के अभियोग को वापस किये जाने के सम्बन्ध में आख्या ।

कृपया विशेष सचिव, न्याय अनुभाग-5/फौजदारी उत्तर प्रदेश शासन, लखनउ के पत्र संख्या 4437-सीएम/सात-न्याय-5-2012-28-35/डब्लूसी/2012 दिनांक 30-10-2012 का सन्दर्भ ग्रहण करें जो उत्तर प्रदेश शासन द्वारा अभियोग को वापस किये जाने के सम्बन्ध में आख्या /अभिमत उपलब्ध कराये जाने विषयक है ।

उपरोक्त के क्रम में वाद संख्या /मु0अ0स0/सत्र परीक्षण 506/2002/308/2003 धारा 121/121ए/123 भादवि एवं 3(1) आतंकवाद निवारण अधिनियम 2002 (पोटा) थाना गंज जनपद रामपुर बनाम 1- जाबेद उर्फ गुडडू पुत्र मोहम्मद सरीफ निवासी अश्तबल रोट मोहल्ला सराय शहादत कार खां थाना गंज जनपद रामपुर 2- ताज मोहम्मद पुत्र छोटे क्षां निवासी मोहल्ला चैकी टीन थाना गंज जनपद रामपुर 3- मकसूद पुत्र इनायत हुसैन निवासी मोहल्ला नालापार अखाडा मल्लीखां थाना कोतवाली जनपद रामपुर द्वारा अपने देश की गोपनीय सूचना पाकिस्तान के आई0एस0आई0 एजेन्सी को देना तथा जनपद बरेली/मेरठ की आमर्ी के मूवमेंन्ट की सूचना देना इस प्रकार की गोपनीय सूचनाएं अपने देश की बाहर भेजने तथा पाकिस्तान की मदद करने के लिए योजना तैयार कर पाकिस्तान के आई0एस0आई0 एजेन्सी को उपलब्ध कराने एवं उपरोक्त अभियुक्तगणों का राष्ट् विरोधी कार्य में संलिप्त होने से देश की एकता/अखण्डता एवं सम्प्रभुता को खतरा होने के संबंध में अभियोग पंजीकृत किया गया था ।

उपरोक्त की वापसी के संबंध में जिला शासकीय अधिवक्ता फौजदारी /लोक अभियोजक मुरादाबाद से विधिक अभिमत प्राप्त किया गया प्राप्त अभिमत में समस्त अभियोग दैनिकी व अभिलेखी साक्ष्यों का अवलोकन कर अभिमत उपलब्ध कराया है कि अभियुक्तगणों द्वारा उपरोक्त कृत्य राष्ट्ीय एकता, अखण्डता, सम्प्रभुत्ता को खतरे में डालने हेतु अपने देश की गोपनीय सूचना तैयार कर पाकिस्तन के आतंकवाद संगठन आई0एस0आई0 को उपलब्ध कराने के पयर्ाप्त साक्ष्य उपलब्ध हैं । राष्ट्ीय सुरक्षा से सम्बन्धित होने के कारण न्यायहित/राष्ट्हित व जनमानस हित को दृष्टिगत रखते हुए अभियोग को वापस लिये जाने का कोई औचित्य नहीं है ।

उपरोक्त अभियोग में जिला शासकीय अधिवक्ता फौजदारी/लोक अभियोजक जनपद मुरादाबाद के द्वारा प्रदान किये गये अभिमत से मैं पूर्णरूप से सहमत हॅू । अतः अभियोग को वापस लिये जाने का घोर विरोध किया जाता है ।

संलग्नक वर्क पुलिस अधीक्षक

रामपुर ।

ख्ळ, डव्त्।क्।ठ।क्

The opinion expressed by the District Government counsel(Criminal) and the District Magistrate under Cols. 10, 11 and 12 is reproduced as under :

केस डायरी में उपलब्ध साक्ष्य का परीक्षण अभियोजन अधिकारी/लोक अभियोजक से कराकर साक्ष्य का विष्लेक्षण करते हुए अभियोजन की सफलता एवं दुर्बलता के बारे में पूर्ण विवरण दें ।

वाद वापसी के सम्बन्धित शासकीय अधिवक्ता/फौजदारी, मुरादाबाद का स्पष्ट मत

ह0

जिला शास,अधि,/फौज

मुरादाबाद

01-02-2013

वाद वापसी के सम्बन्ध में जनहित में पुलिस अधीक्षक मत कारण सहित ।

पुलिस अधीक्षक

रामपुर ।

ख्भ्, ठ।त्।ठ।छज्ञप्

With regard to District Barabanki also, the Presenting Officer has given dissenting view against withdrawal of case. Letter dated 11.10.2012 written by the Presenting Officer, Barabanki is reproduced as under :

पे्रषक

जिला शासकीय अधिवक्ता/फौजदारी

बाराबंकी ।

सेवा में,

जिला मजिस्ट्ेट

बाराबंकी ।

संख्या: मेमो/डी0जी0सी0क्रि0 दिनांक 11 अक्टूबर 2012

विषय ‘ः- मु0अ0सं0-1091/07 एस टी नं0 310/08 राज्य बनाम कासमी, खलिद, मुजाहिद थाना- कोतवाली बाराबंकी का वापसी के सम्बन्श में पेषित किये जाने सूचना ।

महोदया

कृपया उपरोक्त वाद के सम्बन्घ में आपके पत्र दिनांक 7-9-1 अनुसार अभियोग वापसी के सम्बन में उक्त वाद से सम्बन्धित श्री कैलाश श्रीवास्तव, स0शा0अधि0 फौ0 बाराबंकी द्वारा अभियोजन संचालन किया रहा है । जिससे श्री कैलाश नरायन श्रीवास्तव से निश्धर्ारित प्रारूप पर अख्या एवं राय दिनांक 11-10-12 को प्राप्त किया तथा उक्त वाद की वापसी सम्बन्ध में स्पष्ट मत है कि जनहित एवं राष्ट्हित में वाद वापस होने योग्य नही है ।

रिपोर्ट सेवा में पे्रशित है ।

ह0

जि0शासकीय अधिवक्ता

बाराबंकी ।

Apart from the Presenting Officer, the Superintendent of Police, Barabanki also wrote a letter expressing his deep concern against withdrawal of cases. The letter dated 12.10.2012 of the Superintendent of Police is reproduced as under :

कायर्ालय पुलिस अधीक्षक, बाराबंकी ।

पत्र संख्या: र-134/2012 दिनांक: अक्टूबर 12, 2012

सेवा में

जिलाधिकारी

बाराबंकी ।

विषय - मु0अ0सं0 1891/07 धारा 221/221ए/122/124ए/332 भा0द0वि0 4/5 विष्फोटक पदार्थ अधि0 एवं 16/18/20/23 विधि विरूद्ध क्रिया कलाप निवारण अधिनियम थाना कोतवाली नगर बाराबंकी का अभियोग शासन द्वारा वापस लिये जाने के संबंध में आख्या ।

उपरोक्त प्रकरण में श्री कैलाश नरायन श्रीवास्तव सहायक जिला शासकीय अधिवक्ता फौजदारी बाराबंकी की आख्या दिनांकित 10-10-2012 एवं श्री बी0एल0गौतम जिला शासकीय अधिवक्ता बाराबंकी का पृष्ठांकन आख्या में अंकित विन्दु संख्या 1 सक 12 में अंकित में तथ्य कि यह प्रकरण माननीय अपर सत्र न्यायालय/एस0सी0/एस0टी सत्र न्यायालय बाराबंकी के कायर्ालय में विचाराधीन है । अभियुक्त गण पर लगाये गये आरोप को सिद्ध करने का प्यर्ाप्त साक्ष्य है । अभियोजन को पूर्ण रूपेण सफलत प्राप्त होने की आशा है । जनहित एवं राष्ट्हित में वाद वापस होने योग्य नहीं है । अभियुक्त गण का संबंध देश के द्वारा प्रतिबंधित संगठनों से और अशान्ति फेलाना और देश को कमजोर करना ही इनका मुख्य उदेश्य है जो देश व समाज के लिये हित में नहीं है । श्री कैलाश नारायन श्रीवास्तव सहायक जिला शासकीय अधिवक्ता फौजदारी बाराबंकी की आख्या दिनांकित 10-10-2012 मूल रूप में संलग्नकर भेजी जा रही है । उक्त आख्या से मैं सहमत हूं ।

ह0

12-10-2012

सैयद वसीम अहमद

पुलिस अधीक्षक

बाराबंकी ।

13.Learned Senior Counsel representing the State of U.P. admits that in majority of the cases (supra), the Presenting Officers have expressed their views against withdrawal of criminal cases. However, he further submitted that in pursuance to the letter of Chief Secretary (supra), a Committee of Principal Secretary, Home and Principal Secretary, Law was constituted. The Committee submitted its report expressing its view for withdrawal of cases. In pursuance to the order of Hon'ble Chief Minister of U.P., opinion of the Advocate General of the State was also obtained. The Advocate General concurred with the report of the Addl. Advocate General and thereafter letters were issued to different districts with regard to withdrawal of cases. It has been submitted that the procedure with regard to withdrawal of cases was adopted in terms of L.R. Manual (para 19.37). However, State has not brought on record these facts in the counter affidavit filed before the Division Bench.

14. Subject to above, different letters were sent to various authorities for withdrawal of cases. It shall be appropriate to reproduce one of the Government Order/instructions as below :

संख्या - 07 डबलूसी/सात-न्याय-5-2013-2854डब्लूसी/2012

पे्रषक,

आर0पी0 पाण्डेय,

विशेष सचिव

उत्तर प्रदेश शासन ।

सेवा में,

जिला मजिस्टृेट

वाराणसी ।

05-3-13

न्याय अनुभाग-5 फौजदारी लखनउ: दिनांक फरवरी, 2013

विेषय - मु0अ0सं0-11/2006 धारा-3/4/5 विस्फोटक पदार्थ अधिनियम, थाना दशाश्वमेघ, जनपद-वाराणसी, राज्य बनाम शमीम अहमद के अभियोग वापसी के सम्बन्ध में ।

महोदय,

उपर्युक्त विेषयक आपके पत्र संख्या - 07/18-वाद वापसी- (2010-12) दिनांक 02-01-2013 के सन्दर्भ में मुझे यह कहने का निदेश हुआ है कि वाद के तथ्यों व उपलब्ध आख्या/पत्रादि पर समुचित विचारोपरान्त शासन ने जनहित व न्यायहित में उक्त वाद को वापस लिये जाने का निर्णय लिया है ।

2- मुझे यह भी कहने का निदेश हुआ है कि महामहिम राज्यपाल महोदय उपयर्ुक्त वाद के अभियोजन को वापस लेने हेतु लोक अभियोजक द्वारा न्यायालय में प्रार्थना-पत्र प्रस्तुत करने की सहर्ष अनुमति प्रदान करते है ।

3- कृपया तद्नुसार अपेक्षित कार्यवाही सुनिश्चित करें तथा कृत कार्यवाही से शासन को भी अवगत कराने का कष्ट करें ।

भवदीय

( आ0पी0पाण्डेय)

विशेष सचिव ।

A perusal of the letter dated 5.3.2013 reveals that the District Magistrate or the Presenting Officer were not furnished the dissenting opinion of the Committee to give a second look to the dissenting opinion expressed by them earlier given in pursuance to earlier letter (supra). However, we are not recording any finding on this issue since it is a matter which falls within the domain of the Division Bench while adjudicating the controversy on merit.

Subject to aforesaid backdrop, the Prosecuting Officers moved applications in different courts for withdrawal of cases and admittedly in one such case of district Barabanki, the Sessions Judge has rejected the application.

15. One of the applications out of others moved by the Prosecuting Officer in the pending criminal case at Varanasi, for convenience, is being reproduced as under :

सक्षम न्यायालय अपर मुख्य न्यायिक मजिस्ट्ेट कक्ष सं0 6 , वाराणसी

सरकार बनाम शमीम उर्फ सरफराज

अ0सं0 - 11/06

वाद सं0 - 2906/10

धारा - 3/4/5 विस्फोटक पदार्थ अधि0

थाना - दशाश्वमेध ।

प्राथर््ानापत्र अन्तर्गत धारा - 321 ब्तण्च्ण्ब्ण्

महोदया,

सादर अनुरोध है कि उपरोक्त अभियोग में माननीय शासन के आदेश दिनांक 5-3-13 के द्वारा जनहित व न्यायहित में उक्त वाद को वापस किए जाने की अनुमति प्रदान की गयी है तथा प्राथर््ाना पत्र प्रस्तुत करने हेतु अभियोजक को अनुमति दी गयी है जिसकी प्रतिलिपि संलग्न की जा रही है ।

मेरे द्वारा पत्रावली का अवलोकन किया गया जिसमें दिनांक 7़.3.06 को सायं 6.30 बजे पुलिस बल द्वारा जम्मू फाटक गेट के सामने से लावारिस झोला, एक अदद प्रेसर कुकर, घड्ी व विस्फोटक पदार्थ बरामद किया गया था । किसी अभियुक्त की गिरप्तारी मौके पर न होने के कारण दो अज्ञात व्यक्तियों के विरू़़द्ध 3/5 विस्फोटक अधिनियम के अन्तर्गत थाना दशाश्वमेघ में एफ आई आर पंजीकृत किया गया ।

विवेचना के उपरान्त अभियुक्त शमीम एलियास सरफराज के विरूद्ध दिनांक 4.12.06 को धारा 3/4/5 विस्फोटक पदार्थ अधि0 में मफरूरी में आरोपपत्र प्रेषित किया गया । अथर्ात् अभियुक्त न ही आज तक गिरप्तार हुआ और न ही उसका बयान अंकित किया गया । पत्रावली वर्तमान में हाजिरी पर नियत है और अभियुक्त के विरूद्ध गैर-जमानतीय वारंट का आदेश निर्गत है ।

विवेचना से उपलब्ध साक्ष्य के परिशीलन से स्पष्ट है कि उक्त अभियोग में अभियुक्त के विरूद्ध आरोप-पत्र सह अभियुक्त वलीउल्लाह के बयान अन्तर्गत 161 ब्तण्च्ण्ब्ण् के आधार पर प्रेषित किया गया । अभियोग में अन्य कोई वस्तुनिष्ठ साक्ष्य उपलब्ध नहीं है जिस पर अभियोग में सफलता की सम्भावना है ।

मााननीय उच्चतम न्यायालय द्वारा प्रतिपादित सिद्धान्तों के प्रकाश में यह दृष्टिकोण तय किया गया है कि ऐसे अभियोग जिसमें विमुक्ति अन्तिम निष्कर्ष में परिलक्षित हो उसका अग्रिम विचारण उचित नहीं है ।

शासन स्तर पर विवेचना के दौरान एकत्र साक्ष्य की समीक्षा की गयी और यह पाया गया कि जो साक्ष्य सकत्र किया गया है उससे दोषसिद्धि सम्भव नहीं है । तथा राज्य सरकार द्वारा विधिक-प्रक्रिया एवं विधिव्यवस्था में जनहित में वाद को वापस लिए जाने का निर्णय लिया गया है । इस सम्बन्ध में माननीय उच्चतम न्यायालय का निर्णय अयूब बनाम स्टट आफ यू0पी0 ;2002द्ध3 ैब्ब् 510 एवं विजय कुमार बल्देव मिश्रा उर्फ शमर्ा बनाम स्टेट आफ महाराष्ट् ;2007द्ध 12 ैब्ब् 687 व शिवनन्दन पासवान बनााम बिहार राज्य ।प्त् 1987 ैब् 877 की परिधि में उक्त अभियोग में निस्तारित करने की इच्छा जाहिर की गयी है ।

अत: महोदया से सादर अनुरोध है कि उपरोक्त व्यवस्था के अनुरूप राज्य सरकार के विधिक व्यवस्था एवं माननीय उच्चतम न्यायालय के प्रतिपादित सिद्धान्तों के अनुरूप वाद को वापस लिए जाने की कृपा करें ।

दिनांक - 5-6-2013 प्राथर्ी

संलग्नक - निर्णयों की छाया प्रतियां ह0

एवं शपथ-प़त्र दशरथ सिंह

अभियोजन अधिकारी

okjk.klh

The affidavit filed in support of aforesaid application is being reproduced as under :

सक्षम न्यायालय अपर मुख्य न्यायिक मजिस्ट्ेट कक्ष सं0 6 , वाराणसी

सरकार बनाम शमीम उर्फ सरफराज

अ0सं0 - 11/06

वाद सं0 - 2906/10

धारा - 3/4/5 विस्फोटक पदार्थ अधि0

थाना - दशाश्वमेध ।

शपथ-पत्र द्वारा दशरथ सिंह अभियोजन अधिकारी, नियुक्त संयुक्त निदेशक अभियोजन कायर्ालय जनपद पाराणसी एवं अभियोजक थाना दशाश्वमेध के उपरोक्त वाद

1- यह कि शपथकतर्ा जनपद वाराणसी में अभियोजन अधिकारी के पद पर तैनात है और वर्तमान में उपरोक्त अभियोग थाना दशाश्वमेध के वाद का प्रभारी अभियोजक भी है ।

2- यह कि विधिक व्यवस्था के अनुरूप घारा - 321 ब्तण्च्ण्ब्ण् के अन्तर्गत वाद वापस लिए जाने के लिए शपथ-कतर्ा अधिकृत है ।

3- यह कि उपरोक्त अभियोग थाना-दशाश्वमेघ के पुलिस द्वारा दिनांक 7़.3.06 को सायं 6.30 बजे पुलिस बल द्वारा जम्मू फाटक गेट के पास से लावारिस बैग, प्रेसर कुकर, घड्ी व विस्फोटक पदार्थ की बरामदगी पर अ0सं0 11/06 धारा 3/5 विस्फोटक अधिनियम में पंजीकृत किया गया ।

4- यह कि अभियोग में अभियुक्त शमीम एलियास सरफराज के विरूद्ध सह अभियुक्त वलीउल्लाह के बयान 161 ब्तण्च्ण्ब्ण् के आधार पर मफरूरी में आरोपपत्र प्रेषित किया गया । अथर्ात् अभियुक्त की न ही गिरप्तारी हुई है और न ही बयान अंकित किया गया है।

5- यह कि शासन स्तर पर विवेचना के दौरान एकत्र साक्ष्यों की समीक्षा की गयी और यह पाया गया कि जो साक्ष्य सकत्र किया गया है उससे दोषसिद्धि की सम्भावना नहीं है ।

6- यह कि माननीय उच्चतम न्यायालय द्वारा प्रतिपादित सिद्धान्तों के अनुसार उक्त अभियोग में साक्ष्य कमजोर प्रकृति का है ।

7- यह कि वाद वापसी के बिन्दु पर माननीय उच्चतम न्यायालय द्वारा शिवनन्दन पासवान बनााम बिहार राज्य ।प्त् 1987 ैब् 877, ;2द्ध अयूब बनाम स्टट आफ यू0पी0 ;2002द्ध3 ैब्ब् 510 तथा ;3द्ध विजय कुमार बल्देव मिश्रा उर्फ शमर्ा बनाम स्टेट आफ महाराष्ट् ;2007द्ध 12 ैब्ब् 687 के निष्कर्ष एवं प्रतिपादित सिद्धान्त से यह परिलक्षित होता है कि ऐसे अभियोग जिसमें विमुक्ति अन्तिम निस्कर्ष में परिलक्षित हो उसका अग्रिम विचारण उचित नहीं है ।

सत्यापन

उपरोक्त क्रमांक 1 व 2 पर दिए हुए तथ्य विधिक व्यवस्था एवं शासन के आदेश के आधार पर है व क्रम सं0 3 व 4 पर दिए तथ्य न्यायालय में विचाराधीन पत्रावली वास्ते हाजिरी के अवलोकन के आधार पर क्रमांक 5 शासन स्तर से लिऐ गये वाद वापसी के आदेश में परिलक्षित आधार पर एवं क्रम सं0 6 एवं 7 पर दिये गये तथ्य माननीय उच्चतम न्यायालय द्वारा पारित व उल्लेखित निर्णयों के आधार पर दिया गया है ।

मेरी जानकारी में उपरोक्त तथ्य सत्य हैं कोई बात छुपायी नहीं गयी है ।

शपथकतर्ा

ह0

5.6.13

दशरथ सिंह

अ0अधि0 वाराणसी

16. From the records submitted by the learned Addl. Advocate General, it appears that different letters of identical nature were sent to the respective Districts inviting opinion of the District Magistrate, Senior Superintendent of Police and the Prosecuting Officer with regard to withdrawal of cases which contains 13 points. After receipt of information, the government passed an order directing the District Magistrate to proceed with withdrawal of cases and submit a compliance report as is evident from the letter dated 5.3.2013 sent to the District Magistrate, Varanasi.

Thus, it appears that in spite of dissenting notes of the Presenting Officers, the government took a decision for withdrawal of cases, in pursuance of which, the applications were moved.

17. In the aforesaid factual background, the questions referred have cropped up for consideration and adjudication by the present larger Bench.

(ii) PRELIMINARY OBJECTION

18.Smt. Bulbul Godiyal, learned Addl. Advocate General has raised a preliminary objection that since no notice has been issued to the Attorney General, reference suffers from substantial illegality and hence, it should be outrightly rejected. The question with regard to issuance of notice has been considered by order dated 5.9.2013 and notices were issued for the reason disclosed therein to the learned Attorney General of India. Hence, on this count, argument advanced seems to be not sustainable.

(iii) MAINTAINABILITY OF THE REFERENCE TO LARGER BENCH

19. It has been vehemently argued by the learned Addl. Advocate General as well as learned Senior Counsel Shri Anoop George Chaudhary on behalf of the State of U.P that the facts and circumstances and the material on record make out no case for reference to larger Bench. According to learned Addl. Advocate General and Shri Chaudhary since the question involved in the writ petition is no more 'res integra' as having already been decided by earlier two Division Bench judgments, it is not necessary to decide the issue again. Learned Addl. Advocate General relied upon some judgments of this Court and Hon'ble supreme Court while questioning the reference made by the Division Bench. She further submitted that the question referred by the Division Bench has already been adjudicated and answered by Hon'ble Supreme Court and, as such, it is not necessary to enter into the matter.

20. It has been the consistent view of Hon'ble Supreme Court that ordinarily, superior Court follow its earlier judgments but in special circumstances, it may overrule its own earlier decision to meet out the constitutional requirement. It is a rule of policy and not of law which compel the court to follow its own decision. Neither the Judicial Committee of Privy Council or the Supreme Court of United States or the Supreme Court of Canada nor the High Court of Australia nor the Supreme Court of India is bound by its own previous decision. It may depart from it. The departure is done by a Bench of a larger number of Judges. It is the practice of this Court that when there is a conflict among two decisions of Benches or a Bench does not agree with the decision of another Bench it refers the case to a Bench of a larger number of Judges. This is what, which is reflected from the Rules of High Court.

21. A Bench of five Judges of this Court presided by the then Chief Justice Hon'ble Mr. Justice M. C. Desai in a case reported in AIR 1966 Allahabad 73 Full Bench: State of Uttar Pradesh and others. Vs. Firm Deo Dutt Lakhan Lal, while considering the law on the subject, observed that a larger bench means a Bench consisting of more Judges than the Bench giving earlier decision. A Bench of two Judges is known as Division Bench and a Bench of three or more Judges as Full Bench. There is no law or Rule or even a convention that a Full Bench can consist of only three Judges. It can consist of three or any larger number of Judges. The principles of stare decisis is "a principle of policy and not a mechanical formula of adherence to the latest decision." While referring an article, "Mr. Justice Jackson" published in 68 Harward Law Review p.937 with reference to what was said by Felix Frankfurter, their Lordships observed to quote:

"There must be certainty about the law but the certainty would be a false one if it leads to the conclusion that an error once having been made in a judgment must be followed in all subsequent cases."

22. It was held by the Full Bench of five Judges of this Court in the case of Firm Deo Dutt (supra) that once Chief Justice of the High Court refers a controversy to a larger Bench may be in pursuance of the order passed on judicial side by a Single Judge or Division Bench, then such order or reference is not open for judicial review while considering the reference by the Bench concerned. To reproduce from Firm Deo Dutt (supra) in the words of Chief Justice Desai:

"The Chief Justice passed the order on a judicial order passed by a Bench that to resolve the conflict between the two Full Bench decisions they may be referred to a larger Bench, e.g., a Bench of at least five Judges. It is not open to any member of this Bench to question that order of the Division Bench and I can only express surprise at the suggestion made by counsel that he can do so and that this Bench can hold that the order passed by the Chief Justice referring the special appeals to a Bench of five Judges was not proper or legal."

23. Hon'ble Supreme Court in a case reported in AIR 1965 Supreme Court 1767 (V 52 C 304): Lala Shri Bhagwan and another. Vs. Ram Chand and another, had upheld the power of Hon'ble Chief Justice to constitute larger Bench on the reference made by the Single Judge in the following words:

"It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."

24. While delivering judgment with separate opinion, as the member of Full Bench, in a case reported in [(2008)2 UPLBEC 1611] Tuples Educational Society and another versus State of U.P and another, after considering catena of judgments of Hon'ble Supreme Court and this Court as well as High Court Rules, one of us (Justice Devi Prasad Singh), opined that once on judicial side, a reference is made by the Hon'ble Single Judge or the division Bench or even the larger Bench of this Court in pursuance of the powers conferred under Rules of the Court, then ordinarily, Hon'ble the Chief Justice being the master of cause list, may issue consequential administrative directions and once such direction is issued for constitution of larger Bench, then it cannot be subjected to judicial review by litigants.

25. On the other hand, Mr. H.S. Jain, learned counsel appearing for the petitioners has refuted the argument advanced by the State counsel and submits that the question framed by the learned Division Bench has not been answered by earlier judgment of this Court, hence reference is perfectly valid.

26. Keeping in view rival arguments advanced by the parties and subject to settled proposition of law, we proceed to consider these two submissions as preliminary issues as under :

[A] Whether the question referred by the Division Bench has been answered by the earlier judgment of Allahabad High Court or Supreme Court ?

27. Learned Addl. Advocate General and Shri Chaudhary vehemently placed reliance on the Constitutional Bench judgment of Hon'ble Supreme Court in Sheonandan Paswan versus State of Bihar and others (1987)1 SCC 288. The question that cropped up before the Constitution Bench of Supreme Court was with regard to interpretation of section 321 of the crpc. The majority judgment (3:2) held that all that the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The Court has to further ensure that whether the application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given.

However, the minority judgment held that the discretion has not to be exercised by the court mechanically and the consent applied for has not to be granted as a matter of formality or for mere asking.

28. By majority, the Constitution Bench held that no appeal is provided under the Act against an order giving consent under Section 321 CrPC but the order is revisable under Section 397 CrPC. It has been further held by the Majority opinion that Section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent and further holding that it is not necessary to give reason while according consent for withdrawal of prosecution.

However, majority view with regard to assigning of reason by the court seems to have been diluted by Constitution Bench's later judgments of Supreme Court which we propose to discuss hereinafter in later part of this judgment. Catena of subsequent judgments of Supreme Court reveals that the majority view with regard to nature of order for according consent seems to be virtually overruled and minority view expressed by Justice Bhagwati, the then Chief Justice of India and Justice Oza has been accepted as law of the land. However, close reading of the judgment shows that Justice Venkataramiah had reiterated the same view with regard to reasoning as observed by Justice Bhagwati and Justice Oza.

29. Reliance placed by Mrs. Godiyal on the case reported in (2006)1 SCC 314 S.K. Shukla and others versus State of U.P seems to be mis-conceived and extends no help to the respondents as it does not deal with entire issue in terms of the question referred by the Division Bench. Though their Lordships in the case of S.K. Shukla (supra) held that the Public Prosecutor must have full freedom and he can even give up certain cases and request the court to discharge and acquit any accused but no opinion has been expressed with regard to nature of government instructions/order which may be issued by the State Government with regard to withdrawal of cases. Right of the State Government under Section 321 CrPC has not been discussed in the case of S.K. Shukla (supra).

30. In State of Gujrat versus K.V. Joseph (2001)2 SCC 156, the Supreme Court has not expressed any opinion keeping in view the totality of questions formulated and referred by the Division Bench of this Court (supra). The case of K.V. Joseph(supra) relates to expungement of remark given by the High Court in its direction where harsh language was used without affording opportunity of hearing to the parties. Their Lordships held that the judges should use temperate language.

31. The case of K.V. Joseph (supra) is rather helpful to the petitioners of writ petition where their Lordships held that although corruption cases against some official public servant are not to be withdrawn at the instance of home department without any basis but the High Court lacks jurisdiction to usurp the power of appropriate agency to make an enquiry. The court should forward to the appropriate institution available for such enquiry.

The objection raised by learned Addl. Advocate General seems to be not sustainable keeping in view the three judgments of the Supreme Court referred to above, and on the basis of the finding recorded by the Division Bench of this Court keeping in view the factual matirx on record.

[B] Whether the earlier judgment of Allahabad High Court referred by the State Counsel answers the question formulated by the Division Bench :?

32. In case the answer comes to 'yes', then of course, reference may be bad in law but in case the answer comes to 'no', then reference shall be perfectly in order.

33. In Criminal Writ (PIL) No. 10362 of 2013 Satya Prakash versus State of U.P, a Division Bench of this Court had dismissed the writ petition with the observation that the direction issued by the State Government is not binding on Courts and the Court concerned may exercise power in accordance with law while granting or refusing permission with regard to withdrawal of cases. No finding has been recorded by the Division Bench with regard to formality or the vires of section 321 of the crpc.

34. In other writ petition relied upon by the State, bearing No. 16488 of 2012, decided by a Division Bench of this Court at Allahabad, same observation has been made and held that the withdrawal of the case under Section 321 CrPC is subject to consent of concerned court. Hence, it shall not be proper to exercise writ jurisdiction when the power to withdraw is vested in a competent criminal Court.

In both the cases (supra), neither the ground was taken nor argued with regard to vires of Section 321 CrPC by the petitioners of those writ petitions. The Division Bench simply left the factual matrix open to be considered by the trial Court. No argument was also advanced before the Division Bench nor a finding has been recorded while dismissing the writ petitions with regard to nature of the order liable to be passed on instruction issued by the State Govt. Referral Bench (supra) recorded its dissent in leaving the question for adjudication by the trial Court.

Keeping in view the aforesaid proposition, in case we look into the judgments of this court, it appears that no specific opinion has been expressed by the earlier judgment of this Court with regard to the question formulated by the Division Bench, hence objection raised on this ground by the learned Addl. Advocate General fails.

[C] Whether reference made to larger Bench keeping in view the question formulated by the Division Bench suffers from illegality ?

35. It is vehemently argued by Mrs. Godiyal that the reference made to the larger Bench is not sustainable. She has relied upon certain judgments which we proceed to consider along with the judgment relied upon by the petitioners' counsel.

36. In State of Punjab versus Salil Sabhlok and others (2013)5 SCC 1, their Lordships of Hon'ble Supreme Court held that where the irregularities and illegalities pointed out in the writ petition are unsubstantiated, Court should not have made an academic reference to the larger Bench of the High Court. While considering the reference made by the Division Bench in the case of Salil (supra), Hon'ble Supreme Court held that the Full Bench should not have decided an issue which was not referred to it by the Division Bench of the High Court, hence the judgment of Full Bench of the High Court was held to be without jurisdiction (para 37). The facts and circumstances of the case do not seem to be applicable with regard to the controversy in question.

37. In (2013)3 SCC 1 State of Gujarat and another versus Justice R.A. Mehta (Retired) and others, their Lordships of the Apex Court held that where a Larger Bench has decided an issue, then in such situation, it shall be obligatory on the part of the Bench concerned while making reference to a Larger Bench to reach a conclusion regarding the correctness of the judgment delivered by it previously, particularly that which has been delivered by a Bench of nine Judges or more, and adjudge the effect of any error therein upon the public. In the present case, there is nothing on record which may indicate that there is any judgment of Larger Bench of Allahabad High Court dealing with the question formulated by the Division Bench. Hence, reference cannot be held to be bad in law.

38. In Maya Dixit (Smt.) and others versus State of U.P and others [(2010)3 UPLBEC 2539], before a Full Bench of Allahabad High Court, controversy cropped up with regard to reference made by the learned Single Judge to Larger Bench while dealing with a Government Order issued in pursuance to the interim order passed by the Division Bench of this Court. Their Lordships expressed displeasure with regard to the matter which was referred to Larger Bench by the Single Judge while dealing with the Government Order, issued in pursuance to the interim order passed by a Division Bench at Lucknow which was upheld by Hon'ble Supreme Court in Special Leave Petition. It has been held that the reference should not have been made in such situation where the Bench had not arrived to the conclusion after hearing the parties' counsel that it did not agree with the judgment of Larger Bench (Division Bench) which has earlier passed an interim order restraining use of heavy machine in mining.

39. The case in hand is entirely different than the matter adjudicated by the Full Bench in the case of Maya Dixit (supra). The Division Bench formulated the question and referred to Larger Bench with a dissenting note after considering affidavit filed on behalf of the State and after providing opportunity of hearing to the parties' counsel. The Division Bench thought appropriate to formulate and refer the questions to a Larger Bench, keeping in view the factual matrix available on record and public importance, which seems to have never been answered by any earlier judgment of this Court.

40. In (2009)10 SCC 689 Tika Ram and others versus State of U.P and others, their Lordships of Hon'ble Supreme Court held that a decision does not become a precedent unless a question is directly raised and considered by the Court. It further appears that the observation made by Hon'ble Supreme Court in the case of Tika Ram (supra) seems to come in the rescue of the petitioners' counsel and not to help State Counsel. It shall be appropriate to quote relevant portion from the judgment of Tika Ram :

"It was reiterated by Shri Trivedi, Learned Senior Counsel, as also, Shri Qamar Ahmed, Learned Counsel that the question of constitutional validity of the Act was not considered by the High Court as the Act was held to be valid in GDA's case and in Meerut Development Authority case. It was, however, urged that the question of Constitutional validity was never considered in these cases. Reliance was placed on judgments reported as Arnit Das v. State of Bihar , State of UP and Anr. v. Synthetics & Chemicals Ltd. and Anr. Nirmal Jeet Kaur v. State of Madhya Pradesh and Anr. ICICI Bank and Anr. v. Municipal Corporation of Greater Bombay and Ors. Antulay v. R.S. Naik and Ors. Zee Telefilms Ltd. and Anr. v. Union of India and Ors. P. Ramachandra Rao v. State of Karnataka, Nand Kishore v. State of Punjab , Isabella Johnson v. M.A. Susai .

104. We do not think that the law laid down in these cases would apply to the present situation. In all these cases, it has been basically held that a Supreme Court decision does not become a precedent unless a question is directly raised and considered therein, so also it does not become a law declared unless the question is actually decided upon. We need not take stock of all these cases and we indeed have no quarrel with the propositions settled therein. However, we may point out that, firstly, the question of validity is settled in Meerut Development Authority case. This is apart from the fact that we are of the opinion that there is nothing wrong with the Amending Act insofar as its Constitutional validity is concerned."

From the plain reading of Division Bench's judgments of this Court and other cases relied upon by the learned counsel for the State, it does not seem to be established that the questions formulated by the Division Bench have been directly raised and considered by earlier judgment of Allahabad High Court or even to some extent by Hon'ble Supreme Court.

41. In (2006)11 SCC 521 Jindal Vijayanagar Steel (JSW Steel Limited) versus Jindal Praxair Oxygen Co. Limited relied upon by Addl. Advocate General, their Lordships held that the judgment may not be referred for reconsideration by the subsequent Coordinating Bench merely because subsequent Bench has arrived at different conclusion. The principle of stare decisis should be adopted and followed.

We reiterate our observation that in none of the cases, this Court has expressed opinion on the question formulated by the Division Bench of this Court but left it open to be considered by the trial Court.

42. The case reported in (2005)2 SCC 673 Central Board of Dawoodi Bohra Community and another versus State of Maharashtra and another relied upon by the learned Addl. Advocate General also does not seem to fit into the facts and circumstances of the present case. It has been held by the Supreme Court that the doctrine of binding precedent cannot be given a go-bye. The doctrine of binding precedent has the merit of promoting certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individuals as to the consequence of transactions forming part of their daily affairs.

Attention of the Court has not been invited to any judgment of Allahabad High Court or Supreme Court where vires of Section 321 CrPC and opinion on the formulated questions by the Division Bench has been specifically dealt with. Hence, the argument does not seem to be sustainable.

43. Mr. Anoop George Chaudhary, learned Senior Counsel while challenging the reference in question submits that since in the earlier judgment of this Court, question referred has not cropped up, it was not necessary for the Division Bench to formulate the question and refer to the Larger Bench. The Division Bench should itself have decided the entire controversy without referring to the Larger Bench.

Argument advanced by the learned Senior Counsel does not seem to be correct for the reason that with regard to framing of questions, the Division Bench of this Court vide judgment and order dated 2.1.2013, passed in writ petition No. 16488 of 2012 Nityanand Chaubey versus State of U.P and the judgment and order dated 28.5.2013, passed in writ petition No. 10362 of 2013 Satya Prakash versus State of U.P has not recorded any finding on merit and left it open for the trial court to decide the issue. While dissenting with the judgment of earlier two Division Benches (supra), in paras 22 and 23 of the referal order dated 7.6.2013, the Division Bench has recorded its dissenting note that the government has issued instruction for withdrawal of cases only to gain political benefit. Further, it has been held that such action on the part of the State Government is against the interest of society. It appears that the Division Bench was of the view that such issue where decision has been taken for political consideration against public interest should have been adjudicated by this Court instead of leaving it for the trial Court.

44. While preferring the instant writ petition, apart from challenging vires of Section 321 CrPC, under relief (d), alternative prayer has also been made that the government may be restrained from withdrawing the cases against the terrorists in different courts of U.P under unlawful activities within the Prevention Act, 1967. Earlier also, a prayer was made before the Division Bench to restrain the government for withdrawing the cases and order passed thereon to be set aside which does not seem to have been accepted by earlier judgments. Further, since the cases have also been filed under Unlawful Activities (Prevention) Act, 1967 which has been amended in pursuance to the resolution of the Security Council of United Nations Organisation in the year 2008, a question has been framed with regard to necessity of Central Government (Union of India) to accord permission. Question framed seems to be based on pleading and material on record which has not been answered by earlier Division Bench.

45. Learned Senior Counsel relying upon the Apex Court's judgment in R.A. Mehta's case (supra) asserted that before making reference, court must reach to the conclusion expressing dissenting view. There is no dispute over the proposition of law submitted by learned Senior Counsel but the fact remains that in the referral order, the Division Bench had arrived to the conclusion that the decision taken by the government is based on political considerations and with dissenting note observed that keeping in view public interest it may not be left for trial Court. From the material on record, it appears that a plea has been taken that the decision to withdraw cases is based on election manifesto of Samajvadi Party without taking into account public or National interest. Accordingly, even relying upon R.K. Mehta's case (supra), referral order does not seem to suffer from any impropriety or illegality.

46. It is well settled proposition of law that every judgment has to be read in reference to context of particular statutory provisions interpreted by the Court.--- Decision cannot be relied upon in support of the proposition that it did not decide------H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur & others. Vs. Union of India, AIR 1971 SC 530; M/s. Amar Nath Om Parkash & others. Vs. State of Punjab & others AIR 1985 SC 218; Rajpur Ruda Meha & others Vs. State of Gurajat, AIR 1980 SC 1707; C.I.T. Vs. Sun Engineering Works (P) Ltd., (1992) 4 SCC 363; Sarv Shramik Sangh, Bombay Vs. Indian Hume Pipe Co. Ltd. & Anr., (1993) 2 SCC 386; Haryana Financial Corporation & Anr. Vs. M/s. Jagdamba Oil Mills & Anr., AIR 2002 SC 834; Mehboob Dawod Shaikh Vs. State of Maharastra, (2004) 2 SCC 362; ICICI Bank & Anr. Vs. Municipal Corporation of Greater Bombay & others: AIR 2005 SC 3315; M/s. Makhija Construction and Enggr. Pvt. Ltd. Vs. Indore Development Authority & others: AIR 2005 SC 2499; and Shin-Etsu Chemical Co. Ltd. Vs. Aksh Optifibre Ltd. & Anr.: (2005) 7 SCC 234.

47.In view of above, cases relied upon by the Addl. Advocate General and learned Senior Counsel Shri Chaudhary do not seem to be applicable under the facts and circumstances of the present case keeping in view the questions formulated and referred to the Larger Bench (supra). The questions formulated and reference made do not seem to suffer from any impropriety or illegality.

(iv) TERRORISM

48. The word, 'Terrorist' comes from French word, "terrorisme" and originally referred specifically to state terrorism as practiced by the French government during the Reign of terror. The French word, "terrorisme" in turn is derived from the Latin verb terrei meaning "I frighten". The terror cimbricus was a panic and state of emergency in Rome in response to the approach of warriors of the Cimbri tribe in 105 BC. The Jacobins cited this precedent when imposing a Reign of Terror during the French Revolution. After the Jacobins lost power, the word "terrorist" became a term of abuse.

49. In November, 2004, a United Nations Secretary General report described terrorism as

"any act intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population or compelling a government or an international organization to do or abstain from doing any act"

50. Definition published by Carsten Bockstette at the Geuorge C. Marshall Center for European Security Studies, underlines the psychological and tactical aspects of terrorism. To quote :

Terrorism is defined as political violence in an asymmetrical conflict that is designed to induce terror and psychic fear (sometimes indiscriminate) through the violent victimization and destruction of noncombatant targets (sometimes iconic symbols). Such acts are meant to send a message from an illicit clandestine organization. The purpose of terrorism is to exploit the media in order to achieve maximum attainable publicity as an amplifying force multiplier in order to influence the targeted audience(s) in order to reach short- and midterm political goals and/or desired long-term end states."

51. Rechard English, a Prefessor of Politics at Queen's University, Belfast and author of book, "Terrorism How to Respond", from his experience considered the ingredients of terrorism and observed thus:

"Terrorism involves heterogeneous violence used or threatened with a political aim; it can involve a variety of acts, of targets, and of actors; it possesses an important psychological dimension, producing terror or fear among a directly threatened group and also a wider implied audience in the hope of maximizing political communication and achievement; it embodies the exerting and implementing of power, and the attempted redressing of power relations; it represents a subspecies of warfare, and as such it can form part of a wider campaign of violent and non-violent attempts at political leverage."

52. In Black's Law Dictionary, the word, "terrorism" has been defined as under :

"terrorism,n(18c) The use or threat of violence to intimidate or cause panic, esp. As a means of affecting political conduct."

(Page 1611, Black's Law Dictionary, Ninth Edition).

53. The United Nations Security Council prepared modern legislative provisions on measures to combat terrorist activities on the basis of Commonwealth Secretariat document. According to Clause 20 and 21 of the Expert Group Report, one of the obligations in subparagraph 2(e) is to ensure that those who engage in terrorist activity face trial. In that regard, the Group examined the question of investigative detention activity to face trial.

Expert Group Report has been made part of "United Nations Suppression of Terrorist Order".

54. U.N. Security Council from time to time passed resolutions for implementation of anti-terrorist convention. In pursuance to Security Council Resolution No. 1273 (2001), a draft copy of Modern Legislative provisions on measure to combat terrorism has been prepared for implementation by all Member states of United Unations.

55. By resolution No. 1333, the U.N. Security Council in its 4251st Meeting held on 19.12.2000 resolved and reaffirmed previsious resolutions, provided guidelines to take effective measures to combat terrorism. United Nations Security Council Resolution 1624 adopted in its 5261st Meeting on 14.9.2005 elaborately dealt with terrorist act and made a request to deal with this menace with firm hand. To reproduce relevant portion :

United Nations Security Council Resolution 1624

September 14, 2005

Adopted by the Security Council at its 5261st meeting, on 14 September 2005 The Security Council,

Reaffirming its resolutions 1267 (1999) of 15 October 1999, 1373 (2001) of 28 September 2001, 1535 (2004) of 26 March 2004, 1540 (2004) of 28 April 2004, 1566 (2004) of 8 October 2004, and 1617 (2005) of 29 July 2005, the declaration annexed to its resolution 1456 (2003) of 20 January 2003, as well as its other resolutions concerning threats to international peace and security caused by acts of terrorism, Reaffirming also the imperative to combat terrorism in all its forms and manifestations by all means, in accordance with the Charter of the United Nations, and also stressing that States must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights law, refugee law, and humanitarian law,

Condemning in the strongest terms all acts of terrorism irrespective of their motivation, whenever and by whomsoever committed, as one of the most serious threats to peace and security, and reaffirming the primary responsibility of the Security Council for the maintenance of international peace and security under the Charter of the United Nations,

Condemning also in the strongest terms the incitement of terrorist acts and repudiating attempts at the justification or glorification (apologie) of terrorist acts that may incite further terrorist acts,

Deeply concerned that incitement of terrorist acts motivated by extremism and intolerance poses a serious and growing danger to the enjoyment of human rights, threatens the social and economic development of all States, undermines global stability and prosperity, and must be addressed urgently and proactively by the

United Nations and all States, and emphasizing the need to take all necessary and appropriate measures in accordance with international law at the national and international level to protect the right to life,

Recalling the right to freedom of expression reflected in Article 19 of the Universal Declaration of Human Rights adopted by the General Assembly in 1948 ("the Universal Declaration"), and recalling also the right to freedom of expression in Article 19 of the International Covenant on Civil and Political Rights adopted by the General Assembly in 1966 ("ICCPR") and that any restrictions thereon shall only be such as are provided by law and are necessary on the grounds set out in paragraph 3 of Article 19 of the ICCPR"

56. General Assembly of United Nation in its meeting convened on 12.7.2012 made a request that the terrorism should not be associated with religion, nationality, civilization or ethnic group. It has been resolved that it shall be the responsibility of the Member State to establish the mechanism to check menace of terrorism.

India being Member of the United Nation is obliged to implement the anti terrorism resolutions of the United Nations Security Council vide AIR 1996 SC 1864 Madhu Kiswar versus State of Bihar, AIR 1997 SC 610 D.K. Basu versus State of West Bengal, AIR 1997 SC 3011 Visakha versus State of Rajasthan, (1997)1 SCC 301 Peoples Union for Civil Libertieis (PUCL) versus Union of India, AIR 2000 SC 988 Chairman, Railway Board versus Chandrima Das.

57. Common definition of terrorist is a system used or threatened, use of violence to intimidate a population or government and thereby affect political, religious or ideological change. India is facing terrorism externally and internally, both. External terrorism emerges from neibouring countries and internal terrorism emulates from religious, communal or insurgency from a section of society for various reasons. Internal terrorism is founded on sleeping partners, moles, active members associated with external or internal terrorist organisations.

58. The Unlawful Activities (Prevention) Act, 1967 (in short,1967 Act), as amended from time to time deals with the terrorism.

The aim and object of the Act reveals that it has been promulgated by the Indian Parliament in compliance of resolution of Security Council of United Nations. It shall be appropriate to reproduce the aim and object of Act No. 37 of 1967, as inserted by Act No. 29 of 2004 and Act No. 35 of 2008. To reproduce :

"An Act to provide for the more effective prevention of certain unlawful activities of individuals and associations 2004 *[and for dealing with terrorist activities] and for matters connected therewith.

*["WHEREAS the Security Council of the United Nations in its 4385th meeting adopted Resolution 1373 (2001) on 28th September, 2001, under Chapter VII of the Charter of the United Nations requiring all the States to take measures to combat international terrorism;

AND WHEREAS Resolutions 1267 (1999), 1333 (2000), 1363 (2001), 1390 (2002), 1455 (2003), 1526 (2004), 1566 (2004), 1617 (2005), 1735 (2006) and 1822 (2008) of the Security Council of the United Nations require the States to take action against certain terrorists and terrorist organisations, to freeze the assets and other economic resources, to prevent the entry into or the transit through their territory, and prevent the direct or indirect supply, sale or transfer of arms and ammunitions to the individuals or entities listed in the Schedule;

AND WHEREAS the Central Government, in exercise of the powers conferred by Section 2 of the United Nations (Security Council) Act, 1947 has made the Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007;

AND WHEREAS it is considered necessary to give effect to the said Resolutions and the Order and to make special provisions for the prevention of, and for coping with, terrorist activities and for matters connected therewith or incidental thereto."]

Be it enacted by Parliament in the Eighteenth Year of the Republic of India as follows: -"

59. Various provisions of the Act defines terrorist act, terrorist gang, terrorism, terrorist organisation etc. Section 15 of the Act defines 'terrorist act' which is reproduced as under :

" [15. Terrorist act. -Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,-

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause-

(i) death of, or injuries to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or

(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act,

commits a terrorist act.

Explanation.-For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the Official Gazette by the Central Government as a public functionary."

60. Under Section 10 of the 1967 Act, membership of unlawful association is punishable. Chapter IV of the Act not only defines terrorist act but also contains the provision with regard to punishment on different grounds. Chapter V contains the procedure for forfeiture of proceeds of terrorist. Terrorist Organisation has been dealt with under Chapter VI of the Act.

61. A bare reading of the 1967 Act reveals that substantial amendments in the Act have been made in the year 2008 and onward in tune of the Resolution of United Nations Security Council and its General Assembly. The aim and object refers to various Resolutions of United Nations (supra).

62. The Indian Parliament by Act No. 34 of 2008 established National Investigation Agency (NIA). Under its Schedule, the offence committed, by certain enactments have been earmarked for investigation by the National Investigation Agency. The Schedule of the National Investigation Agency Act, 2008 is reproduced as under :

THE SCHEDULE

[SEE SECTION 2(i)(F)]

"1. The Atomic Energy Act, 1962 (33 of 1962);

2.The Unlawful Activities (Prevention) Act, 1967(37 of 1967);

3. The Anti-Hajacking Act, 1982 (65 of 1982);

4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982(66 of 1982);

5. The SAARC Convention (Suppression of Terrorism) Act, 1993 (36 of 1993);

6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 (69 of 2002);

7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (21 of 2005);

8. Offences under-

(a) Chapter VI of the Indian Penal Code (45 of 1860) [sections 121 to 130 (both inclusive)];

(b) Sections 489-A to 489-E (both inclusive) of the Indian Penal Code (45 of 1860).

However, under Section 7 of the National Investigation Agency Act, 2008, the investigation under the Act may be transferred to the State Government or State Agency may be associated with such investigation. Section 10 of the Act, save as otherwise provided in the Act shall affect the power of the State Government to investigate and prosecute any Scheduled offence under any law for the time being in force. Special Courts are to be created for the offences investigated by NIA. Cases are to be tried by Special Courts notified for the purpose.

63. The Explosives Act, 1884 regulates manufacture, import, sale of explosive substance and punish for violation of statutory provisions. Punishment has been provided under Section 5 of the Act and trial has been restricted of an offence except with the consent of the District Magistrate concerned.

The Explosives Substance Act, 1908 deals with explosive substances, possession, causing explosion and punishment for making such explosion which may be up to life imprisonment. Prosecution has been made subject to consent of the District Magistrate concerned. Both the enactments relating to explosives are central enactments promulgated by the Parliament. Similarly, passport act and official secret act are Central Acts.

64. In view of above, there appears to be no room of doubt that the Legislature in its wisdom in terms of various Resolutions of the United Nations Security Council has categorised the 'terrorism as a crime of different class' for the purpose of investigation and prosecution.

65. In view of above, while investigation of a case by the Investigating Officer and during the course of framing of charges and trial, the trial Court must look into factual controversy before them keeping in view the ingredients and definition given in the Act with regard to terrorist activities. It shall be obligatory for them to look into such crime with different angle than the ordinary crime where a terrorist organisation possess many facets like sleeping partners, facilitators, active partners, organizers, schedulers etc.

66. Apart from 1967 Act, attention has been invited by the petitioner's counsel to Chapter VI of I.P.C.. Sections 121 to 130 I.P.C relate to offences against the State which includes waging, attempt to wage war, abetting waging of war against the Government of India, conspiracy to commit these offences, collection of arms with intention of waging war, concealing with intent to facilitate design to wage war etc.

67. It has been argued that the offences contained in Chapter VI of IPC seem to be substantially interlinked with the offences covered by 1967 Act (supra). A terrorist organisation ordinarily involves into terrorist activities either against the State, its authorities or to destabilize the government or with a political vision to install its own government may be on account of ill motivation and perverted thoughts ignoring the humanism and brotherhood. These offences are quite serious and liable to be dealt with with firm hand like the offences enumerated in 1967 Act.

68. Hon'ble Supreme Court while dealing with a matter relating to TADA in a case reported in Abdul Karim and others versus State of Karnataka and others (2000)8 SCC 710, has framed certain questions which should have been looked into by Special Public Prosecutor while exercising discretion in favour of withdrawal from prosecution. The relevant portion is quoted as under :

"25. The decision of the Government of the State of Karnataka, therefore, was that, in view of its apprehension of the unrest that would follow if any harm were to come to Rajkumar, it was better to yield to Veerappan's demand and to withdraw the TADA charges against Veerappan and his associates, including the accused respondents. In this context, the Special Public Prosecutor should have considered and answered the following questions for himself before he decided to exercise his discretion in favour of such withdrawal from prosecution of the TADA charges ?

1. Was there material to show that the police and intelligence authorities and the State Government had a reasonable apprehension of such civil disturbances as would justify the dropping of charges against Veerappan and others accused of TADA offences and the release on bail of those in custody in respect of the other offences they were charged with?

2. What was the assessment of the police and intelligence authorities and of the State Government of the risk of leaving Veerappan free to commit crimes in future, and how did it weigh against the risk to Rajkumar's life and the likely consequent civil disturbances?

3. What was the likely effect on the morale of the law enforcement agencies?

4. What was the likelihood of reprisals against the many witnesses who had already deposed against the accused respondents?

5. Was there any material to suggest that Veerappan would release Rajkumar when some of Veerappan's demands were not to be met at all?

6. When the demand was to release innocent persons languishing in Karnataka jails, was there any material to suggest that Veerappan would be satisfied with the release of only the accused respondents?

7. In any event, was there any material to suggest that after the accused respondents had secured their discharge from the TADA charges and bail on the other charges Veerappan would release Rajkumar?

8. Given that the Governments of the States of Karnataka and Tamil Nadu had not for 10 years apprehended Veerappan and brought him to justice, was this a ploy adopted by them to keep Veerappan out of the clutches of the law?

69. While making aforesaid observation, framing questions which were required to be considered by the Prosecuting Officer, their Lordships have further observed that the trouble apprehended by the State of Karnataka in aftermath of the incident of kidnapping of a prominent person was no ground to permit the State or the Prosecuting Officer to withdraw the pending case under TADA. Their Lordships held that the Prosecuting Officer is required to apply his independent mind and record satisfaction of his own.

70. It has been further held by their Lordships that only with intention to restore peace and normalcy in the border area does not make a ground for withdrawal of prosecution. While referring earlier judgment of Sheonandan Paswan (supra), their Lordships held that the court has to record reason and examine the material before it to secure the interest of justice. Their Lordships held as under :

"43.............the court has to examine that all relevant aspects have been taken into consideration by the Public Prosecutor and/or by the Government in exercise of its executive function."

Their Lordships gave word of caution, that a democratically elected government should not give an impression to the citizens of the country, being lawmakers, which would breed contempt for law and does not invite citizens to become a law onto themselves. It may lead to anarchy. When people see public authority flouting law and helplessness of the government, it shall amount to paralyzing and discrediting the democratic authority.

71. Keeping in view the aforesaid broader principle borne out from Abdul Karim (supra), when the case cropped up or initiative is taken by the government or Public Prosecutor for withdrawal of prosecution and prayer is made from the court for the purpose(in present context), then all the three (government, prosecutor and courts) have to apply mind on the following facts, apart from others, with regard to offence under 1967 Act or Chapter VI of the I.P.C. Or alike offences :

(i) Whether the material placed before the government, Public Prosecutor or the court makes out a case for dropping of the proceeding of an offence relating to terrorist activities, (1967 Act) or Chapter VI of the I.P.C. Or offence under Explosives Act or alike offence ?

(ii) In the assessment of the police and intelligence authorities and of the State Government, the risk of leaving the accused free to commit crimes in future and how did the government and Prosecuting Officer weigh against the risk to citizens' life and consequential civil disturbance ?

(iii) What will be effect on the morale of the law-enforcement agencies who apprehended the terrorist or accused involved in offence under Chapter VI of IPC or alike matters ?

(iv) What would be the likelihood of reprisals against the witnesses who stood in favour of prosecution to make a statement in the court or who has already made a statement ?

(v) Whether there is any material on record which indicates danger to national security, public peace and tranquility in case the accused is released without trial ?

(vi) Whether withdrawal will be violative of resolution of UN Security Council in pursuance to which, 1967 Act as has been amended in 2008 ?

(vii) Whether from the material on record, prima facie, a case is made out that the accused has got link or association with foreign terrorist organisation or a government ?

(viii) Whether withdrawal of case against the accused shall be justified in national and social interest of the country ?

Whenever an initiative is taken by the State Government, it shall be necessary for the State Government to look into the aforesaid aspects and record a finding and thereafter may issue instruction to the Prosecuting Officer for the purpose, and the Prosecuting Officer while moving application must inter alia include specific pleading with regard to aforesaid aspects. In the same manner, the court has to also record a finding with regard to aforesaid issues while passing an order for withdrawal of case or rejecting the application.

72. Duty of the State Government to record finding relating to aforesaid grounds while issuing instructions with regard to offence by terrorist is also borne out from the observation made by Hon'ble Supreme Court in Abdul Karim's case (supra). Their Lordships have observed as under :

"The Governments have to consider and balance the choice between maintenance of law and order and anarchy.................................... The self-preservation is the most pervasive aspect of sovereignty. To preserve its independence and territories is the highest duty of every nation and to attain these ends nearly all other considerations are to be subordinated. Of course, it is for the State to consider these aspects and take a conscious decision."

Much reliance has been placed by the learned counsel for the State of U.P over the judgment of Apex Court in a case reported in Ayyub versus State of U.P. 2002 SCC (Cri) 673. The judgment of Hon'ble Supreme Court in the case of Ayyub (supra) has been delivered by a Bench of two Hon'ble Judges. In para 10 of the judgment, it has been held that it shall not be necessary for the State Government to give reason while issuing direction for withdrawal of cases from prosecution. Mere expression in the form of 'Janhit' is sufficient for according consent. Hon'ble Supreme Court has turned down the order of designated Judge on this ground. As observed, the judgment of Abdul Karim (supra) has been delivered by a Bench of three Hon'ble Judges whereas the judgment of Ayyub by two Hon'ble Judges of the Supreme Court. Hence, in view of settled proposition of law with regard to binding precedent, Abdul Karim's case will have binding effect.

Otherwise also, a close reading of Constitution Bench judgment in the case reported in Sheonandan Paswan versus State of Bihar (1983)1 SCC 438, followed by catena of other judgments which are discussed hereinafter reveals that disclosure of reasons for withdrawal of prosecution seems to be necessary.

73. Grounds enumerated hereinabove are in addition to grounds set up by the State or Prosecuting Officer while moving an application under Section 321 I.P.C. Keeping in view the aforesaid broader principle, specific reasons have to be assigned by the Prosecuting Officer and the State Government and accordingly, a finding must be recorded by the courts while dealing with a matter relating to terrorist and Chapter VI of IPC or alike offence.

74. Accordingly, while dealing with an application under Section 321 CrPC for withdrawal of a criminal case relating to terrorism it should be looked into with different angle keeping in view the national security, public interest, administration of justice and Resolutions of United Nations Security Council(supra). In view of the Expert Committee Report (supra), ordinarily, all cases involving terrorism must be followed by trial to their logical end.

75.In view of above, unlike ordinary criminal cases, the government while issuing instruction and the Presenting Officer while moving application before the Court for withdrawal of prosecution have to assign reasons, the necessity of withdrawal keeping in view the allegations relating to the waging of war against India, its security, unity, integrity or strike terror in people etc. Specific reason must be given in the instruction that the withdrawal of prosecution shall not affect Unity, integrity and security of the country and the accused are not likely to indulge into terrorist act keeping in view the definition provided under Section 15 of the 1967 Act(supra) and Chapter VI of I.P.C and alike offences in other statutes. Similarly, the Courts have also to record a finding on the basis of the application moved and permission granted by the State. These grounds are in addition to the case set up by the State or Prosecuting Officer with regard to ordinary crime. Unless special and specific reasons are assigned keeping in view recent resolution of United Nations Security Council(supra) and the provisions contained in the 1967 Act, specially those contained in its Section 15 and other alike statutory provisions, the Court may not be obliged to grant permission for withdrawal of prosecution.

(v) WITHDRAWAL OF CASE

(Section 321 of Cr.P.C.)

76. Power to withdraw a criminal case has been conferred on the Public Prosecutor under Section 321 of Code of Criminal Procedure. The Code of Criminal Procedure regulating the appointment of Public Prosecutor has undergone changes from time to time intending to suit the government of colonial era. The statutory provisions which have undergone drastic change with regard to selection and appointment of Public Prosecutor has been dealt with by a Division Bench of this Court in Writ Petition No. 7825 of 2011 Sadhana Sharma versus State of U.P decided on 11.1.2012 [2012(2) ADJ 607)]. The judgment has been authored by one of us (Hon'ble Devi Prasad Singh, J).

77. Virtually, the Public Prosecutor for all practical purposes, is under the direct subordination of the government and conferment of power on him by statutory provisions ordinarily never come in the way of the government to withdraw a case according to its own dictate. Under the garb of prosecuting agency, the government may exercise its discretion to fulfil its political ambition. However, later on, in pursuance to the report of Law Commissions, certain changes were made in the Code of Criminal Procedure with regard to appointment of Public Prosecutors. But even after such changes made with regard to appointment of Public Prosecutors under the Code of Criminal Procedure, the services of the Public Prosecutor being unsecured, ordinarily, no public prosecutor could take a decision on his own while exercising power with regard to withdrawal of cases. The political abuse of power through the public prosecutor may be noticed from the fact that still the government has not created an autonomous Directorate of prosecution keeping in view the provisions contained in Section 25-A of Code of Criminal Procedure, 1973. It is on account of pronouncement of catena of judgments by High Court as well as Hon'ble Supreme court that some strength has been given to the office of Public Prosecutor to discharge his statutory duty as far as possible to meet out the requirement of law which has been dealt with in the case of Sadhana Sharma(supra) and one other judgment of this Court U.P. Shashkiya Adhivakta Kalyan Samiti versus State of U.P and others, reported in 2012(30)LCD 1066.

78. Apart from aforesaid two Division Bench judgments of this Court, their Lordships of Hon'ble Supreme Court in a case reported in (2013)5 SCC 277 Deepak Aggarwal versus Keshav Kaushik and others considered the rights and duties of Public Prosecutor. Their Lordships of Supreme Court held that the Public Prosecutors are officers of the court and play important role in the administration of justice, particularly in criminal justice system. They have to perform their duties fairly, consistently and expeditiously to protect human dignity, uphold human right and have to ensure that an accused is tried fairly. A Public Prosecutor is supposed to refuse evidence reasonably believed to have been obtained through the course of unlawful method.

It shall be appropriate to reproduce relevant portion from the case of Deepak Aggarwal (supra) :

"77. Public Prosecutor has a very important role to play in the administration of justice and, particularly, in criminal justice system. Way back on 15.4.1935 in Berger v. United States, Sutherland, J who delivered the opinion of the Supreme Court of United States, said about the United States Attorney that he is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. The twofold aim of United States Attorney is that guilt shall not escape or innocence suffer. It is as much his duty to refrain from improper methods calculated to produce wrongful conviction as it is to use every legitimate means to bring about a just one.

78. The Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, adopted guidelines on the role of Prosecutors in 1990. Inter-alia, it states that Prosecutors shall perform their duties fairly, consistently and expeditiously and respect and protect human dignity and uphold human rights. He shall take proper account of the position of the suspect and the victim and pay attention to all relevant circumstances, irrespective of whether they are to the advantage or disadvantage of the suspect.

79. As a follow up action to the above guidelines on the role of Prosecutors, the International Association of Prosecutors adopted Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors which, inter-alia, provides that Prosecutors shall strive to be, and to be seen to be, consistent, independent and impartial; Prosecutors shall preserve the requirements of a fair trial and safeguard the rights of the accused in co-operation with the Court.

80. European Guidelines on Ethics and Conduct for Public Prosecutors [The Budapest Guidelines] adopted in the Conference of Prosecutors General of Europe on 31st May, 2005 are on the same lines as above. Under the head "professional conduct in the framework of criminal proceedings". These guidelines state that when acting within the framework of criminal proceedings, Public Prosecutor should at all times carry out their functions fairly, impartially, objectively and, within the framework of the provisions laid down by law, independently; seek to ensure that the criminal justice system operates as expeditiously as possible, being consistent with the interests of justice; respect the principle of the presumption of innocence and have regard to all relevant circumstances of a case including those affecting the suspect irrespective of whether they are to the latter's advantage or disadvantage.

81. In India, role of Public Prosecutor is no different. He has at all times to ensure that an accused is tried fairly. He should consider the views, legitimate interests and possible concern of witnesses and victims. He is supposed to refuse to use evidence reasonably believed to have been obtained through recourse to unlawful methods. His acts should always serve and protect the public interest. The State being a Prosecutor, the Public Prosecutor carries a primary position. He is not a mouthpiece of the investigating agency. In Chapter II of the BCI Rules, it is stated that an advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent; he should scrupulously avoid suppression of material capable of establishing the innocence of the accused.

82. A two Judge Bench of this Court in Mukul Dalal while dealing with a question about the justifiability of the appointment by the State of Special Public Prosecutors and Assistant Public Prosecutors under Sections 24 and 25 Code of Criminal Procedure respectively, observed that in criminal jurisprudence the State was a prosecutor and that is why primary position is assigned to the Public Prosecutor."

79. Section 321 Code of Criminal Procedure, 1973 (in short, 1973 Act) deals with the power of Public Prosecutor with regard to withdrawal of cases from prosecution. Under the old Act, i.e. Code of Criminal Procedure, 1898 (in short, 1898 Act), section 494 dealt with the power of Public Prosecutor with regard to withdrawal of cases.

section 494 of 1898 act is reproduced as under :

"494. Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal,-

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

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

80. In pursuance to the report of Law Commission to provide uniform law of Criminal Procedure for whole of the country, it was decided to replace the old Code of Criminal Procedure, 1898. The Law Commission submitted its report on 7.2.1968. In pursuance to the report submitted by reconstituted Law Commission, a Draft Bill was introduced in Rajya Sabha on 10.12.1970 and thereafter indicating certain changes through the Joint Select Committee of Parliament, Code of Criminal Procedure, 1973 was enacted.

81. It shall be appropriate to reproduce relevant portion of Forty First Law Commission Report which persuaded the Parliament to substitute Section 494 of old CrPC with the new provision (Section 321). Para 38.6 of Forty First Report of Law Commission is relevant and relied upon by the petitioner's counsel as well as Mr. K.C. Kaushik, learned counsel for the Union of India, which is reproduced as under :

"38.6 We have elsewhere referred to a conflict of interest that may possible arise between the Central Government and the State Government in the matter of remitting or commuting sentences. A similar conflict of interests can arise under section 494 in respect of withdrawal of prosecutions. A State public Prosecutor appointed by the State Government can, if he is in charge of the case, withdraw from the prosecution, though the Central Government may be much concerned in the prosecution of the offences. This could happen where the offence relates to a matter to which the executive power of the Union extends, or was investigated by the Delhi Special Establishment, or involved the misappropriation of destruction of, or damage to, Central Government property, or was committed by a Central Government servant in the course of his official duty. We are of the view that in such cases it is desirable that the consent of the Central Government should be obtained before the Public Prosecutor seeks permission of the Court to withdraw from the prosecution. We recommend the insertion of a proviso to that effect in section 494."

The Law Commission Report makes it clear that the new provision was substituted in place of old one through the 'Proviso' to confer power upon the Central Government to accord permission with regard to offences where the executive power of Union of India exists.

82. Section 321 of 1973 Act deals with the power of Public Prosecutor or Assistant Public Prosecutor to withdraw cases which is reproduced as under :

"Sec. 321. Withdrawal from prosecution.- The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

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

Provided that where such offence-

(i)was against any law relating to a matter to which the executive power of the Union extends, or

(ii)was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or

(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 Central Government while acting or purporting to act in the discharge of his official duty,

and the Prosecutor in charge of the case hag hot been appointed by the Central Government, he shall not, unless he hag 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 prosecution."

83. The comparative study of Section 494 of 1898 Act and 321 of 1973 Act reveals some major change in the Criminal Law with regard to withdrawal of prosecution. A plain reading of proviso to section 321 reveals that the power to withdraw cases investigated under Delhi Special Police Establishment Act, 1946 and the offences to which executive power of Union exists have been subjected to permission granted by the Central Govt.

84. By U.P. Act No. 18 of 1991 through a State Amendment with effect from 16.2.1991, the words, "In charge of a Case may" have been further supplemented by the words "on the written permission of the State Government to that effect (which shall be filed in Court)". Thus, by State Amendment, it has been made obligatory for the Public Prosecutor or Asstt. Public Prosecutor to withdraw a criminal case only after written permission of the State Government and the permission so obtained should be filed in the Court. The amendment (supra) seems to be a check on the independent exercise of power of the Public Prosecutor.

85.Before proceeding with literal meaning of section 321 of 1973 act, it shall be appropriate to consider some of the leading judgments :

86. While considering power conferred by section 494 of 1898 act, the Privy Council in a leading case reported in AIR 1938 Privy Council 266, 269 Faqir Singh versus Emperor held that the provision gives a general executive discretion (to the Public Prosecutor) to withdraw from the prosecution subject to the consent of the Court, which may be determined on many possible grounds. It is further held by the Privy Council that the Public Prosecutor is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly-considered view and the Court is entitled to have the benefit of the fair exercise of his function.

87. Though the Privy Council classically affirmed the freedom and independence of Public Prosecutor while pressing for withdrawal of prosecution, but keeping in view the terms and conditions of the appointment of Public Prosecutors based on shaky pedestal, no State counsel could give a fair opinion with regard to withdrawal of prosecution, except to obey the 'master's voice' by following instructions given to him, which is evident from the evidence on record of the present case as none of the Prosecuting Officer expressed dissenting opinion. Virtually, the provision conferring power to Public Prosecutor to withdraw cases was intended to cause indirect interference with administration of justice by colonial rulers which the country inherited in the post independent era while legislating 1973 Act.

88. Section 494 of old Code provides that in case the criminal cases are withdrawn before framing of the charge, the accused shall be discharged in respect of offence, and in case the charges have been framed, then he shall be acquitted in respect of such offence, seems to be an instance of interference with the judicial proceeding. By fiction of law, the accused shall be deemed to be acquitted in pursuance to power conferred by Clause(b) of Section 494 of 1898 Act as also under Section 321 of new CrPC.

89. In a case reported in 1957 SCR 279 State of Bihar versus Ram Naresh Pandey, Hon'ble supreme Court considered the provision contained in section 494 of 1898 act. Their Lordships held that the order of discharge or acquittal under Section 494 shall be subject to correction by the High Court under Section 435, 436 and 439 or 417 CrPC. It was held that the function of Court granting its consent may well be taken through judicial function. The initiative should be of Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. Their Lordships held that in larger sense, Public Prosecutors being officers of the court, and exercise of the power by them under the provision is discretionary, in respect of which the initiative is of the executive but the responsibility is of the Public Prosecutor. Discretion is to be exercised with reference to such materials as were by then available and not as a prima facie judicial determination of any specific issue.

90. The function of a Court in these matters is not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Consent should not be lightly given on the application of Public Prosecutor, without a careful and proper scrutiny of the grounds on which the application for consent is made.

91. In the case of Ram Naresh Pandey (supra), Hon'ble Supreme Court, though followed the Privy Council, in the case of Faqir Singh (supra) but has given further strength to the Public Prosecutor as well as the Courts to make scrutiny of the available material to prevent the abuse of process of law.

92. In M.N. Sankarayarayanan Nair versus P.V. Balakrishnan and others (1972)1 SCC 318, while reiterating the power of Public Prosecutor to move an application under section 494 crpc of old code, it has been held by Supreme Court that the court may allow application only in case it is satisfied on the basis of material placed before it that the grant of it subserves the administration of justice and the permission was not being sought by Public Prosecutor covertly with an ulterior purpose unconnected with the vindication of the law which the exectuive organs are duty bound to further and maintain. (Para 8).

93. In Bansi Lal versus Chandan Lal and others (1976) 1 SCC 421, their Lordships of Supreme Court showed their deep anguish with regard to the application allowed by Addl. Sessions Judge on mere asking of the State. There was no material before the Addl. Sessions Judge which may warrant to draw the conclusion that sufficient evidence is not forthcoming to sustain the charges or there was any reliable and subsequent information falsifying the prosecution case or any other circumstance justifying withdrawal of the case against the respondents (para 5).

94. In State of Orissa versus Chandrika Mohapatra (1976)4 SCC 250, their Lordships of Hon'ble Supreme Court have further given strength to the administration of justice holding that ultimate guiding consideration must always be the interest of administration of justice and that is the touch stone on which the question must be determined whether the prosecution should be allowed to be withdrawn (para 6 of the judgment). Their Lordships held that it must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attainment of justice.

95. In Balwant Singh versus State of Bihar (1977) 4 SCC 448 , Hon'ble Supreme Court ruled that the sole consideration for Public Prosecutor when he or she decides to withdraw from a prosecution is the larger factor of administration of justice, not the political favours nor party pressures nor like concerns. The statutory responsibility for deciding upon withdrawal squarely vests on the Public Prosecutor. It is not negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The Criminal Procedure Code is the only master of the Public Prosecutor and he has to guide himself with reference to Criminal Procedure Code only.

96. The District Magistrate may bring to the notice of the Public Prosecutor relevant materials and suggest to him to consider whether the prosecution should be withdrawn or not. He cannot command where he can only commend.

Supreme Court further held that surrender of discretion by the Public Prosecutor and the Magistrate is unfortunate. The Court has to be vigilant when a case has been pending before it and not succumb to executive suggestion made in the form of application for withdrawal with a bunch of papers tagged on.

97. In a case reported in Rajender Kumar Jain versus State (1980)3 SCC 435 , the Supreme Court held that the Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its "Minister of Justice". Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the executive by resort to the provisions of Section 361 of the Criminal procedure Code. The independence of the judiciary requires that once the case has travelled to the court, the court and its officers alone must have control over the case and decide what is to be done in each case (para 15).

98. It is the Public Prosecutor who is to apply mind with regard to withdrawal of prosecution by moving application but where large and sensitive issue of public policy is involved, he must seek advice and guidance from the policy maker. If the policy makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and advise the Public Prosecutor to withdraw from the prosecution, it is not for the court to say that the initiative comes from the Government, hence, Public Prosecutor cannot exercise free mind nor can there be any quibbling over words. On this ground alone, the court will not stultify the larger issue of public policy by refusing its consent on the ground that the Public Prosecutor has not exercised discretion as free agent. In such cases, the court has to make an effort to elicit the reasons for withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons (para 17).

99. In Subhash Chander versus State (Chandigarh Administration) and others (1980) 2 SCC 155 , their Lordships of Supreme Court held that the withdrawal may be justified only if it is based on pertinent considerations and actual application of mind by the Public Prosecutor or Assistant Public Prosecutor. The District Magistrate or the Minister has no authority to interfere in the matter.

In Sheonandan Paswan versus State of Bihar (1983)1 SCC 438, Hon'ble Supreme Court ruled that ultimate decision to withdraw from the prosecution should be of Public Prosecutor. Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The government may make suggestion but cannot compel the Public Prosecutor. The Public Prosecutor may receive any instruction from the government but it is not necessary for him to abide by it. The Public Prosecutor has to apply his own independent mind before moving the application under Section 321 CrPC. Public Prosecutor has a right to disagree with the government instruction and may refuse to move application for withdrawal of prosecution.

100. In State of Andhra Pradesh versus P. Anjaneyulu (1984)2 SCC 445, N. Natarajan versus B.K. Subba Rao (2003)2 SCC 76, the aforesaid proposition has been reiterated.

101. In State of Punjab versus Union of India (1986)4 SCC 335, their Lordships of Supreme Court ruled that it is the duty of the Court while granting permission to the Public Prosecutor to withdraw from prosecution, to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. The administration of justice is the touch stone on which the question must be determined whether the prosecution should be allowed to withdraw. Not only the material or paucity of evidence but broad ends of public justice including appropriate socio economic conditions may be ground to move withdrawal application.

102. In Sheonandan Paswan versus State of Bihar (1987)1 SCC 288 , Supreme Court held that while considering the application moved by the Public Prosecutor, the court has to see that the application is made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given by the court.

103. In Abdul Karim versus State of Karnataka (2000)8 SCC 710, Hon'ble Supreme Court reiterated the principle emerging from Sheonandan Paswan (supra) and held that the Public Prosecutor may move application on the basis of the material provided by the State.

104. In Jasbir Singh versus Vipin Kumar Jaggi (2001)8 SCC 289, Supreme Court held that the provision contained in Section 321 CrPC is different than the power conferred by section 307 of the code. Unlike grant of pardon under Section 307, withdrawal from prosecution under Section 321 is unconditional though it requires express permission of the Central Government in specified cases. Implicit in the grant of the power is that it should be in the interest of administration of justice.

105. In S.K. Shukla versus State of U.P. (2006)1 SCC 314, the Supreme Court ruled that the Public Prosecutor cannot work like a post box or act on the dictates of the State Govt. He has to act objectively as he is also an officer of the court. The court has to assess freely whether a case is made out for withdrawal of prosecution or not. It is always open for the court to reject the prayer.

106. In Vijaykumar Baldev Mishra versus State of Maharashtra (2007) 12 SCC 687, Supreme Court held that while taking a decision under section 321 of the code, it is necessary for the courts to apply mind with regard to ground of withdrawal from the prosecution for which an accused is tried.

107. In one other case relied upon by the petitioner's counsel Yerneni Raja Ramchandar alias Rajababu versus State of Andhra Pradesh and others (2009) 15 SCC 604 , their Lordships of Supreme Court had shown displeasure to the interest shown by the State Government for withdrawal of criminal prosecution. The Sessions Judge had rejected the application for withdrawal of the case. High Court affirmed it. Supreme Court while affirming the order of the High Court deprecated the interest shown by the State Government in the accused and observed, to quote :

"19. Even otherwise, the action on the part of the State, in our opinion, suffers from malice on fact 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 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.

20. The 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. 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 times 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 may in this regard notice Epru Sadhakar and Anr. v. Govt. of AP and Ors. : and M.P. Special Police Establishment v. State of M.P.

108. In Mahmadhusen Abdulrahim Kalota Shaikh(2) (2009)2 SCC 1, Supreme Court held that Section 321 CrPC is a codified version of judicial review. It ensures that the judiciary makes the final decision by approving or disapproving the decision of Public Prosecutor. In the matter concerning judiciary, the judiciary should have final say over the cases that has been placed before it. It goes without saying that the courts' decision to grant consent to an application for withdrawal is a judicial function. The final decision rests with the Judge.

109. In Ayyub versus State of U.P. 2002 SCC (Cri) 673, deals a situation where the designated court has refused to grant consent for withdrawal of case. While allowing the appeal, Supreme Court held that the decision taken by the State Government to waive TADA charges was based on proper discussion of factual matrix, evidence, letters and report and the designated courts should not have rejected the application. It is noted by the Supreme Court that recording of confession by the Investigating Agency was not shown to be voluntary in nature nor the police officers have recorded the confession certifying that they believed the confession to have been voluntarily recorded, hence the confession was not admissible. Though, their Lordships permitted to waive the charges of TADA but upheld the conviction under Section 302/34, 307/34 I.P.C. The factual matrix in the case of Ayyub (supra) seems to be entirely different than the present controversy.

110. In N. Natarajan versus B.K. Subba Rao 2003 SCC (Cri) 437, controversy relates to private complaint which according to Supreme Court, was a vexatious litigation based on half knowledge of law but simultaneously, their Lordships held that the Public Prosecutor has full freedom to function freely, independently and fearlessly. At one stage, he may make prayer for framing of charges and under the facts and circumstances of the case at later stage, he may make a prayer for dropping of charges against the accused. Their Lordships noting the gravity of charges based on voluminous record of the case, seriousness and magnitude of the matter where several hundred of persons have been killed and property of crores of rupees has been destroyed, expressed doubt that the case could be conducted in a conducive atmosphere. Their Lordships recorded that at later stage, the Public Prosecutor found that the evidence is not available to prosecute the case, hence made a prayer not to proceed with certain charges subject to further investigation by the investigating agency. Supreme Court noted that many prosecutors who entered into prosecution thought that a charge could not be framed or the accused concerned should be acquitted. Their Lordships held that the prayer made by the Public Prosecutor to drop the charges under Section 121 and 121-A I.P.C against 157 accused could have validly be made by the Public Prosecutor . Application under Section 340 CrPC was held to be not sustainable.

111. In Rahul Agarwal versus Rakesh Jain and another 2005 SCC (Cri) 506, their Lordships of Supreme Court considered when an application under Section 321 CrPC may be allowed. It is held by Hon'ble Supreme Court that it may be permitted when valid reasons are made out for the same and it can be allowed only in the interest of justice. It shall be obligatory for the court to consider all relevant circumstances and find out whether the withdrawal of prosecution advances the cause of justice. Discretion under Section 321 should not be exercised to stifle the prosecution. Withdrawal can be permitted if the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused or to bring out harmony between the parties. Their Lordships had not found it proper for the High Court to allow the withdrawal application.

While reiterating the settled proposition of law, their Lordships of Supreme Court in the case of Rahul Agarwal (supra) held as under :

"10. From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321 Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same."

112. In Ghanshyam versus State of M.P and others (2006)3 SCC (Cri)602, while reiterating the earlier view (supra) that the discretion to withdraw from prosecution vests in Public Prosecutor and none else, their Lordships held that the Public Prosecutor cannot surrender that discretion to any one. He may withdraw prosecution not merely on the basis of paucity of evidence but all other relevant factors as well in order to further the broad end of justice, public order, peace and tranquility. Their Lordships of Supreme Court declined to interfere with the order passed for withdrawal of case under Section 321 CrPC since the order was challenged after lapse of almost fifteen years(para 20).

113. Supreme Court in number of cases quashed the order of the High Court where no reasons were given in an order or judgment. Their Lordships held that where the High Court has not given any reason in refusing to grant leave to file appeal against acquittal, leaves much to be desired. Supreme Court held that the reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order. The absence of reasons has rendered the High Court order not sustainable vide Jawahar Lal Singh versus Naresh Singh and others (1987)2 SCC 222, Hindustan Times Limited versus Union of India and others (1998)2 SCC 242, State of U.P. versus Battan and others (2001)10 SCC 607, State of Uttaranchal versus Sunil Kumar Singh Negi (2008)11 SCC 205.

114. Justice Rashya Atkinson, Supreme Court of Queensland, at AIJA Conference at Brisbane held on September 13, 2002 while considering relevant factors required to be taken into account in writing of a judgment, observed :

"The first matter to consider is the purpose of the judgment. To my mind there are four purposes for any judgment that is written :- (1) to clarify your own thoughts; (2) to explain your decision to the parties (3) to communicate the reasons for the decision to the public; and (4) to provide reasons for an appeal Court to consider." Clarity of thought leads to proper reasoning and proper reasoning is the foundation of a just and fair decision."

115. The Supreme Court of India in the cases State of Orissa versus Dhaniram Luhar (2004)5 SCC 568, State of Utaranchal versus Sunil Kumar Singh Negi (2008)11 SCC 205 held that the reasons are indispensable part of a judgment.

116. In view of above, the Public Prosecutor is the final authority to apply mind and take a decision whether an application for withdrawal of a criminal case is to be moved or not. For that, option is open to him to receive necessary instructions or information from the Government to make up mind on the basis of material made available. The Public Prosecutor cannot act like post box or at the dictate of the State Government. He has to act objectively as he is also an officer of the court. It is also open for the appropriate Government to issue appropriate instruction to him but he has to act objectively with regard to the withdrawal of cases. But the instruction sent by the government shall not be binding and it is the Public Prosecutor who has to take a decision independently without any political favour or party pressure or like concerns. The sole object of the Public Prosecutor is the interest of administration of justice. Power conferred on Public Prosecutor to take independent decision for the interest of administration of justice is not negotiable and cannot be bartered away in favour of those who may be above him on administrative side. He is stood to be guided by letter and spirit of Code of Criminal Procedure only and not otherwise. Neither the Public Prosecutor nor the Magistrate can surrender their discretion while exercising power at their end.

117. Similarly, the Court has duty to protect the administration of criminal justice against possible abuse or misuse by the executive by resort of the provisions contained in Section 321 Cr.P.C. The court has to record a finding that the application moved by Public Prosecutor is in the interest of administration of justice and there is no abuse or misuse of power by the Public Prosecutor or the Government. In case an application is allowed, it must be recorded by the Court that the application has been moved in good faith to secure the ends of justice and not in political or vested interest. The court has final say in the matter and the decision should be free and fair with independent exercise of mind in the interest of public policy and justice. It must ensure that the application is not moved to thwart or stifle the process of law or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given.

118. With regard to the right of the State Government to issue an order for political reason in view of Apex Court's judgment in Sheonandan Paswan's case (supra), learned Senior Counsel interpreted the caveat used by Hon'ble Supreme Court relating to 'Tammany Hall'. Tammany Hall, known as the Society of St. Tammany, the Sons of St. Tammany, or the Columbian Oder, was a New York City political organization founded in 1786 and incorporated on May 12, 1789. It was the Democratic Party's political machine that played a major role in controlling New York City and New York State politics. Tammany had an Irish "boss," and its power surged with the influx of Irish immigrants. Apart from political social service, the literature provided by learned Senior Advocate Mr. Chaudhary also reveals that the Tammany Hall also served as an engine for graft and political corruption, most infamously under William M. "Boss" Tweed in the mid of 19th Century. Accordingly, Tammany Hall also indicates the cases of political corruption. Accordingly, while scrutinising a political decision, it must be looked into by the Court as to whether the power conferred under Section 321 CrPC has been used with ulterior motive as a measure of corrupt practice or against the constitutional spirit without taking into account the public interest or the interest of the country at large.

119. These parameters are not all but some out of other course which should be looked into by the Courts while taking decision on the application moved by the Public Prosecutor for withdrawal of prosecution. A cryptic, non-speaking or unsound order passed by the Court may be set aside during the course of judicial review of its order.

120. In view of Ram Naresh Pandey(supra), every order passed under Section 321 CrPC with regard to discharge or acquittal shall be subject to correction by the High Court in pursuance to power conferred by proviso to Sections 372, 395, 397, 482 and 483 of the Cr.P.C., read with other statutory provisions where power has been conferred on the complainant or the prosecution to assail the order passed by the Courts. Under the revisional jurisdiction (Section 397/401 of Cr.P.C.), High Court may make scrutiny of Court's order suo moto or otherwise on the application moved by the citizen.

(VI) ROLE OF STATE AND CENTRAL GOVERNMENT

121. It is well settled proposition of law that while interpreting statutory provisions in case language of the provisions are clear, no cautious omissus may be supplied. It is further settled proposition of law that while construing statutory provisions, meaning should be assigned to every word, every line, section after taking whole of the statutes vide 2006 (2) SCC 670, Vemareddy Kumaraswamy Reddy and another VS. State of A.P.; (2004) 11 SCC 625, Delhi Financial Corporation and others Vs. Rajeev Anand and others; AIR 1953 SC 148, Nalinakhya Bysacik Vs. Shyam Sunder Haldar and 2001 (8) SCC 61, Dental Council of India Vs. Hari Prakash.

122. In view of above, though the Public Prosecutor or the Asstt. Public Prosecutor has been conferred power to withdraw criminal case but before moving any application in the Court, it shall be obligatory on their part to obtain the permission of the State in case the controversy falls within the domain of the State Government and the case is tried in a court of the State of U.P in view of State Amendment (supra).

123. The U.P. Amendment (supra) makes it mandatory for the Public Prosecutor to obtain written permission from the State Govt. Though the amended provisions reveal that the decision should be mooted from the Public Prosecutor with regard to withdrawal of prosecution but in view of catena of judgments of Supreme Court(supra) and sovereign rights, State is not precluded to issue instruction to the Public Prosecutor with regard to withdrawal of case. However, the right conferred to the State Government by U.P. Amendment(supra) does not mean that the Public Prosecutor should not form independent opinion in view of settled proposition of law(supra). It means, even if the Public Prosecutor forms opinion keeping in view the instruction received from the State Government and the material supplied thereof or otherwise, it shall be necessary for him to obtain a written permission from the State Government before filing of an application in the courts during trial.

Clause (1) of the proviso to Section 321 CrPC deals with a situation where offence is against any law relating to a matter to which the executive power of the Union extends. It means all those cases where the accused is tried under the statute where the Union of India is involved and is mandatory of its participation at any stage either during the course of investigation or during the course of trial in any form, then in such cases permission of the Central Government should be obtained before moving to Court for withdrawal from criminal prosecution. Thus, where investigation is done by an agency like C.B.I under Delhi Special Police Establishment in pursuance to power conferred by Delhi Special Police Establishment Act, 1946 , permission of the Central Government shall be mandatory.

124. Similarly, where the controversy relates to misappropriation or destruction or damage of a property belonging to the Central Government, then unless the Central Government accords consent in writing, the Public Prosecutor cannot move an application for withdrawal of pending criminal case.

125. Similar restriction has been imposed by Clause (4) with regard to employees of the Central Government. In case an offence is committed by the employees of the Central Government while acting or purporting to act in discharge of his official duty, then it shall be mandatory to obtain permission from the Central Government before moving the court with regard to withdrawal of cases.

126. Mr. H.S. Jain, learned counsel vehemently argued that in view of U.P. Amendment(supra), now it is not open for the State Government to issue instruction with regard to withdrawal of cases. Only option open to the State Government is to grant permission or refuse the proposal sent by the Prosecuting Officer with regard to withdrawal of cases.

127. The argument advanced by the learned counsel does not seem to be sustainable for the reason that the power of the State Government to issue appropriate instruction to the presenting officer or the authorities is vested in it in pursuance to the constitutional mandate keeping in view List II and List III of Seventh Schedule read with Art. 162 of the Constitution of India. Neither any inference may be drawn nor in pursuance to the statutory provisions, the government may be restrained to exercise its constitutional duty. Whatsoever amendment has been done by the State in the CrPC may create additional duty on the part of the State Government as well as presenting officer but it may not be taken as embargo on the power of the State to exercise its constitutional rights and discretion.

[A] U.P. AMENDMENT

128. Executive power of the State conferred by Art. 162 read with Second and Third Schedule contains wide circumference. It deals with the subject with different angle as a matter of policy or to meet out the compelling administrative circumstances.

129 Hon'ble Supreme Court in the case of Subhash Chander versus State (Chandigarh Administration) and others (1980)2 SCC 155, while dealing with the executive power of the State has considered its plural concepts in the following words :

"Maybe, the executive, for plural concerns and diverse reasons, may rightfully desire a criminal case to be scotched. The fact that broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long-lasting security in a locality, of order in a disorderly situation or harmony in a factious milieu, or halting a false and vexatious prosecution in a court, persuades the Executive, pro bono publico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrate or Minister."

Their Lordships further took note of the fact that the promotion of law and order is a matter of public justice relating to public policy which may compel the State Government to call for withdrawal of prosecution and accordingly issue appropriate direction to the Prosecuting Officer and the Prosecuting Officer has to look into it in accordance with law to take an independent decision. Their Lordships held has under, to quote :

7.The promotion of law and order is an aspect of public justice. Grounds of public policy may call for withdrawal of the prosecution. A prosecution discovered to be false and vexatious cannot be allowed to proceed. The grounds cover a large canvas. But the power must be cautiously exercised, and the statutory agency to be satisfied is the Public Prosecutor in the first instance, not the District Magistrate or other executive authority. Finally, the consent of the court is imperative."

130. In the case of Abdul Kareem (supra), their Lordships of Hon'ble Supreme Court had noted their approval of the State's right to issue instruction for withdrawal of case under its executive function but cautioned that it should be done in the interest of public policy and justice. To quote relevant portion :

"It is the executive function to decide in public interest to withdraw from prosecution as claimed. But it is also for the Government to maintain its existence. The self-preservation is the most pervasive aspect of sovereignty. To preserve its independence and territories is the highest duty of every nation and to attain these ends nearly all other considerations are to be subordinated. Of course, it is for the State to consider these aspects and take a conscious decision."

131. Virtually, not only List II and List III of Seventh Schedule read with Art. 162 co-relate with executive power but these constitutional mandate also confers the State or the Central Government to exercise their sovereign functions to run the country.

132. According to Black's Law Dictionary, Ninth Edition page 1523, the sovereign power has been defined as under :

"1. The power to make and enforce laws.

2.Sovereign political power under political power.

133. In Constitutional Law, sovereignty is termed as the supreme Power of Legislation and Governance. However, Aristotle, a great Greek legal philosopher said that in democratic States, peoples are sovereign. The supreme power of legislation and governance rests in the people. The Parliamentary sovereignty is subsequent evolution. The original concept of sovereignty is of popular sovereignty and even the King or the monarch was to obey the wishes of the people.

134. The Words and Phrases, Permanent Edition, Vol. 39B, defines the sovereignty as under :

"The "sovereign powers" of a government include all the powers necessary to accomplish its legitimate ends and purposes. Such powers must exist in all practical governments. They are the incidents of sovereignty, of which a state cannot divest itself. - Boggs versus Merced Mining Co., 14 Cal. 279, dismissed 70 U.S. 304, 3 Wall. 304, 18 L.Ed. 245."

135. Sovereignty formally guarantees a State's power to rule without interference over a policy making domain of its own and take appropriate action thereon to secure public interest. Power conferred by List I, List II and List III of Seventh Schedule is the federalism's definitional limit under which the State and Central Government exercise their constitutional power subject to constitutional and statutory limitations.

136. In (2013)8 SCC 345 Balmer Lawrie & Company Limited and others versus Partha Sarathi Sen Roy and others, while defining sovereign function, their Lordships of Hon'ble Supreme Court held that it should be restricted to those provisions which are primarily inalienable and which can be verified by the State alone. Overall supervisory and residual power vesting in the State to issue an order under Art. 162 of the Constitution and take a decision with regard to a subject matter where statutory power is silent vests in the State or Central Government. Hence, exercise of such power ordinarily shall be sovereign function. It is for the State Government to look into public interest and ensure administration of justice in such manner which may subserve the public cause. Hence, while doing so, State discharges sovereign function.

137. In the absence of statutory provision, the government takes a policy decision with regard to subject matter involving public interest and exercise its sovereign function. The decision taken by the government on a particular subject are based on variety of factors and administrative exigencies. The plurality (supra) of administrative exigencies under the modern concept of Administrative Law has been noted by Francesca Bignami, a Professor of Law, George Washington University Law School in an article published in the 'American Journal of Comparative Law' under the title,

"From Expert Administration to Accountability Network : A New Paradigm for Comparative Administrative Law"

. Learned author observed as under :

"The conceptual shift from a vertically organized public administration to a plural accountability network of government bureaucrats and public and private actors broadens the horizons of comparative analysis and enables a more productive exchange with good governance debates in a number of ways. First, the network understanding of administrative action shines light on two major sets of actors, together with their distinct legal rules and procedures, which have traditionally been ignored in comparative analysis : organized social and economic groups, and members of the general public. Self-regulation, advisory committees, joint public-private management, transparency norms, and independent ombudsmen are all elements of administrative law that have either been omitted altogether from comparative studies or that have appeared as brief footnotes to judicial review and administrative procedure. Yet in discussions on the future of administrative governance in both national and international settings, these instruments and procedures all figure prominently as some of the most promising avenues for improving legitimacy and extending regulatory capacity. To understand and evaluate such trends, it is natural to look to the comparative experience of national systems of administrative law but because comparative studies have treated socio-economic participation and diffuse public accountability as unimportant, the debate has been inadequately informed by the current realities of the field."

138. These powers may be in pursuance to the statutory provisions or in pursuance to executive instructions issued under Art. 73 or 162 of the Constitution by Central or State Government. The executive power is co-extensive with the legislative power of the Centre or the State in terms of Seventh Schedule read with Art. 73 and 162 of the Constitution. In case a power is exercised with regard to items contained in List III by the State Government, then it shall be subject to repugnancy test (Art. 246) vide AIR 1941 F.C. 47 Subramaniyan Chettiar, A.L.S.P.P.L. Versus Muttuswami Goundan, AIR 1957 SC 628 R.M.D. Chamarbaugwala versus Union of India, AIR 1964 SC 922 Cf. Abdul Quader & Co., R. versus S.T.O., AIR 1980 SC 2097 Nand Lal versus State of Haryana, AIR 1962 SC 1753 West Ramnad Electric Dist. Co. versus State of Madras.

139. In a case reported in (1972)1 SCC 409 R.N. Nanjundappa versus T. Thimmiah and another, their Lordships of Hon'ble Supreme Court held that in absence of any constitutional bar, the executive power may be exercised by the State in the absence of any legislation to support such action but it cannot be so exercised as to contraband any law relating to the matter.

140. In a number of cases, their Lordships of Hon'ble Supreme Court settled the law that the executive power of the State is co-extensive with that of legislative power of the Legislature vide AIR 1955 SC 549 Ram Jawaya Kapur, Rai Sahib versus State of Punjab, AIR 1964 SC 1823 Chitralekha R. versus State of Mysore, AIR 1966 SC 1942 Nagarajan, B.N. Versus State of Mysore, AIR 1980 SC 1246 Rajendra Narain Singh versus State of Bihar.

141. However, Mr. H.S. Jain while relying upon the cases reported in 1936 PC page 253 Nazir Ahmad versus Emperor and AIR 1964 SC 358 State of U.P versus Sinham asserted that the government cannot exercise its executive power where in view of the well settled proposition of law, a thing is to be done in the manner provided by the Act or statute.

There appears to be no room of doubt over the proposition of law canvassed by the learned counsel for the petitioner.

142. But in the present case, the aforesaid principle does not seem to be applicable for two reasons - firstly Section 321 CrPC does not prohibit the State Government to discharge its executive function keeping in view the State policy, public interest or administrative exigencies. It does not contain any prohibition with regard to the power of the State Government to issue instruction to the Prosecuting Officer to take appropriate step with regard to withdrawal of cases.

143. Secondly, as held by the Supreme Court (supra), the executive function is a plural concept based on government policy and to meet out the contingency with regard to law and order empowering the State to discharge its constitutional obligations. The Prosecuting Officer, though has independent right to take a decision with regard to withdrawal of cases ignoring the government direction, but he has not been conferred any statutory or constitutional power to disassociate himself with the government policy or executive function of the State required under the Constitution to meet out the exigencies of service or public interest. In such a situation, contrary finding debarring the State Government to issue instruction by exercising its constitutional function shall negate the democratic and constitutional right to secure public good. In absence of any statutory prohibition, the government has right to issue instruction to the Prosecuting Officer though he or she may not be compelled to follow the direction. But instruction, so issued by the Government is subject to judicial review.

144. U.P. Amendment creates additional duty for the Prosecuting Officer to receive assent of the government in writing before moving an application for withdrawal of the cases. On account of amendment, exercise of executive power by the State Government to issue instructions seems to be in bad taste or is anomalous, but it shall not create a ground to hold that the government lacks jurisdiction to issue direction or instruction for withdrawal of case which shall be subject to limitations contained in Section 321 CrPC itself.

145. The right of the State Government to exercise its executive power under Art. 162 is subject to judicial review of the State action, to find out whether the instruction so issued is contrary to statutory provision or is unreasonable or is against public interest and subversive to the rule of law vide State of Tamilnadu versus K. Shyam Sunder AIR 2011 SC 3470.

However, it shall always be obligatory on the State Government while issuing instruction to ensure that the executive instruction issued must be in conformity with the statutory provisions or rules framed thereunder. The power of the State Government to issue executive instruction is confined to filling up of the gaps or covering the area which otherwise has not been covered by existing rules or statutory provisions vide Union of India versus Central Electrical and Mechanical Engineering Service Group A (Direct Recruits) Association, CPWD AIR 2008 SC 3.

146. A Full Bench of Allahabad High Court (Hon'ble Five Judges), in a case reported in AIR (38) 1951 Allahabad 257 Moti Lal and others versus The Government of the State of Uttar Pradesh and others upheld the power of the State Government to issue Government Order regulating grant of temporary permit on different routes for the plying of Buses. Except one dissenting view, (Hon'ble Justice Agarwala), the court upheld the government's power to issue appropriate order or direction with regard to issuance of permit.

Chief Justice Malik while upholding the government's executive power conferred by Art. 162 observed as under :

"In a written constitution the executive power must be such power as is given to the Executive or is implied, ancillary or inherent. It must include all powers that may be needed to carry into effect the aims and objects of the Constitution. It must mean more than merely executing the laws."

Justice Mootham and Justice Wanchoo concurrently observed as under :

"Although an executive act by a State Government may not be authorised by legislative enactment. It will nevertheless be within the executive power of the State, if (i) it is not an act which has been assigned in the Constitution of India to other authorities or bodies such as the legislature, the judiciary or the Public Service Commission; (ii) it is not contrary to the provisions of any law; and (iii) it does not encroach upon or otherwise infringe the legal rights of any member of the public."

Justice Sapru while expressing his own opinion separately held as under :

"The executive power of the Indian Union and the States has to be gathered, not from our fixed notions of what the prerogative powers of the Crown are and were as applicable to India before 26.1.1950, but form the text of the Constitution itself. In determining the extent of executive power it is permissible for Courts to take into account the nature of the relationship between the executive and the legislature, contemplated by a particular Constitution."

Virtually the Full Bench judgment of Moti Lal(supra) has laid down the foundation to interpret executive power of the Centre and State Government under Article 73 or Article 162 of the Constitution of India. Keeping in view the ratio of Moti Lal's case, even after the State amendment in Section 321 CrPC, State may not be held to be exceeding its jurisdiction while issuing instruction to the Presenting Officer to proceed with a matter in absence of any statutory prohibition or negation of executive right.

147. The government has got power to take a policy decision in conformity with constitutional mandate and statutory provisions. The said power vested in the government entitles it to alter, amend or restate its policy decision. The decision must be in public interest and in case it is in public interest, it may be given effect to(AIR 2008 SC 2796 Kusuman Hotels (P) Limited versus Kerala State Electricity Board).

148. It is not possible to frame an exhaustive definition of executive function. But ordinarily, it connotes the residue of governmental functions that remains after legislative and judicial functions are taken away. The executive function comprise both the determination of policy as well as carrying it into action. It evidently includes the initiation of legislation, the maintenance of order, the protection of social and economic welfare, the direction of foreign policy and in fact, carrying on or supervision of the general administration of the State vide AIR 1955 SC 549 Ram Jawaya Kapur versus State of Punjab and AIR 1964 SC 648 Jayantilal Amratlal Shodhan versus F.N. Rana.

149. In view of above, it is the prerogative of the government to take a decision to secure public interest subject to statutory and constitutional limitations. In framing of policy, various inputs are required and the courts have no role to play in government's arena to take a policy decision. It is well settled that the government must have liberty and freedom in framing policy. Courts are ill-equipped to deal with competing claims and conflicting interests. Often, the courts do not have satisfactory and effective means to decide which alternative, out of the many competing ones, is the best in the circumstances of the case vide AIR 2011 SC 3182 State of Jharkhand versus Ashok Kumar Dangi.

150. On the same analogy, the Prosecuting Officer being at lower rung of administration has no resources to take independent decision with regard to withdrawal of cases, except in a situation where from the evidence on record, patently no case is made out on account of absence of evidence to prosecute an offender. As discussed (supra), a decision for withdrawal of a criminal case is based on variety of factors which may be based on government policy coupled with necessity to secure administration of justice and public interest. In such situation, while retaining the power of Public Prosecutor to take an independent decision in pursuance to Section 321 CrPC, the government may not be restrained from issuing an instruction in pursuance to a policy decision taken in public interest as well as for administration of justice while discharging its constitutional or sovereign function.

[B] PROVISO

151. Either side has given much emphasis with regard to right of the State Government or the central Government in pursuance to Clause (I) of the Proviso contained in Section 321 CrPC which reads as under :

"Provided that where such offiece -

(a) was against any law relating to a matter to which the executive power of the Union extends, or"

152. In G.P. Singh's Interpretation of Statutes, the real nature of a proviso has been discussed as under :

"The normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment."

153. Lord Macnaghten in a case reported in AIR 1944 PC 71 Madras & Southern Maharatta Rly. Co. Limited versus Bezwada Municipality held about proviso as under :

"a qualification of the preceding enactment which is expressed in terms too general to be quite accurate"

154. In The Commissioenr of Income-Tax, Mysore, Travenacore-Cochin and Coorg, Bangalore versus The Indo Mercantile Bank Limited AIR 1959 SC 713, their Lordships while interpreting proviso held as under :

"9.............The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment."

155. Hon'ble Supreme Court in a case reported in AIR 1961 SC 1596 Shah Bhojraj Kuverji Oil Mills and Ginning Factory versus Subhash Chandra Yograj Sinha while considering the function of a proviso added to a section held as under :

"9..................As a general rule, a proviso is added to an enactment to qualify or create and exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But, provisos are often added not as exceptions or qualifications to the main enactment but as saving clasuses, inwhcih the cases they will not be construed as controlled by the section."

156. In a case reported in AIR 1966 SC 12 Kedarnath Jute Manufacturing Co. Limited versus The Commercial Tax Officer and others, while reiterating the aforesaid proposition, their Lordships held that the effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it.

157. The aforesaid proposition of law with regard to construction of proviso seems to have been consistent view of Supreme Court vide AIR 1985 SC 582 S. Sundaram Pillai etc versus R. Pattabiraman and in subsequent cases like (1996)6 SCC 665 J.K. Industries Limited and others versus Chief Inspector of Factories and Boilers and others, 2004 Vol. 1 SCC 574 Haryana State Cooperative Land Development Bank Limited versus Haryana State Cooperative Land Development Banks Employees Union and another.

158. The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the Section. It has to operate in the same field and if the language of the main enactment is clear, it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of proviso are such that is its necessary effect.

159. Subject to aforesaid principle of construction with regard to proviso, the argument advanced by the parties' counsel is to be considered with regard to Clause (i) of proviso contained in Section 321 CrPC.

160. Learned counsel for the petitioner has relied upon Entries 1, 5, 9, 10, 11, 12, 14, 93 and 97 of List I (Union List) of Seventh Schedule. For convenience, these entries are reproduced as under :

"1. Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination of effective demobilisation.

5. Arms, firearms, ammunition and explosives.

10. Foreign affairs; all matters which bring the Union into relation with any foreign country.

11. Diplomatic, consular and trade representation.

9. Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.

12. United Nations Organisation.

14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.

93. Offences against laws with respect to any of the matters in this List.

97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.

161. Much emphasis has been given by the petitioner's counsel over Entry 93 which provides that the Union of India has power with regard to all offences against law with respect to any of the matters in List I. Submission of the petitioner's counsel is that in view of Entry 93, it shall be obligatory that all the applications moved for withdrawal with regard to offences relating to Union List, approval must be obtained from the Government of India. Entries 10, 11 and 14 relates to The Passport Act, 1967 Act and Entry No. 97 read with Entries 1 and 2 cover Official Secrets Act, 1923.

162. The petitioner's counsel has vehemently relied upon a case reported in (2010)5 SCC 246 Zameer Ahmed Latifur Rehman versus State of Maharashtra and others. Their Lordships of Hon'ble Supreme Court while considering the constitutional validity of Maharashtra Control of Organised Crime Act, 1999 (MCOCA) offences have considered the amendment done in 1967 Act (UAPA) in pursuance to the resolution of Security Council with following observation :

"64.Prior to the 2004 amendment, the UAPA did not contain the provisions to deal with terrorism and terrorist activities. By the 2004 amendment, new provisions were inserted in the UAPA to deal with terrorism and terrorist activities. The Preamble of the UAPA was also amended to state that the said Act is enacted to provide for the more effective prevention of certain unlawful activities of individuals and associations, and dealing with terrorist activities and for matters connected therewith.

65. In the 2008 amendment, the Preamble has again been amended and the amended Preamble now also contains a reference to the resolution adopted by the Security Counsel of the United Nations on 28.09.2001 and also makes reference to the other resolutions passed by the Security Counsel requiring the States (Nations which are member of the United Nations) to take action against certain terrorist and terrorist organizations. It also makes reference to the order issued by the Central Government in exercise of power under Section 2 of the United Nations (Security Council) Act, 1947 which is known as the Prevention & Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007."

163. Hon'ble Supreme Court has also considered(supra) the definition given in 2(1)(k) read with section 15 of uapa, 1967 and held that the offence under the Act relates to threat or likely threat to the sovereignty, unity, integrity or security of India. While comparing the offence under MCOCA and UAPA (1967 Act), Supreme Court has made the following observation :

"76. Under the MCOCA the emphasis is on crime and pecuniary benefits arising there from. In the wisdom of the legislature these are activities which are committed with the objective of gaining pecuniary benefits or economic advantages and which over a period of time have extended to promoting insurgency. The concept of the offence of 'terrorist act' under Section 15 of the UAPA essentially postulates a threat or likely threat to unity, integrity, security and sovereignty of India or striking terror amongst people in India or in foreign country or to compel the Government of India or the Government of a foreign country or any other person to do or abstain from doing any act.

77. The offence of terrorist act under Section 15 and the offence of Unlawful activity under Section 2(1)(o) of the UAPA have some elements in commonality. The essential element in both is the challenge or threat or likely threat to the sovereignty, security, integrity and unity of India. While Section 15 requires some physical act like use of bombs and other weapons etc., Section 2(1)(o) takes in its compass even a written or spoken words or any other visible representation intended or which supports a challenge to the unity, sovereignty, integrity and security of India. The said offences are related to the Defence of India and are covered by Entry 1 of the Union List.

78.Moreover, the meaning of the term 'Unlawful Activity' in the MCOCA is altogether different from the meaning of the term 'Unlawful Activity' in the UAPA. It is also pertinent to note that the MCOCA does not deal with the terrorist organisations which indulge in terrorist activities and similarly, the UAPA does not deal with organised gangs or crime syndicate of the kind specifically targeted by the MCOCA. Thus, the offence of organised crime under the MCOCA and the offence of terrorist act under the UAPA operate in different fields and are of different kinds and their essential contents and ingredients are altogether different."

Keeping in view the observation made by Hon'ble Supreme Court in the case of Zameer Ahmed Latifur Rehman Sheikh (supra) and the finding recorded thereon, it appears that the offence under 1967 Act or for an offence under Chapter VI of I.P.C. and other alike Acts, permission shall be required from the Union of India for the withdrawal of case under Section 321 CrPC since they relate to Entry 1 of the Union List.

164. Attention has been invited by the learned counsel for the petitioner to a case reported in (1974)3 SCC 531 G.V. Ramanaiah versus The Superintendent of Central Jail, Rajahmundry and others where their Lordships considered Entry 1 along with Entry 93 and other Entries and held that in the Indian Penal Code , the offence falling under Union List has been included. To reproduce relevant portion, to quote :

"14. A plain reading of the above Entry No. 1 would show that the ambit of 'Criminal law' was first enlarged by including in it the Indian Penal Code, and, thereafter, from such enlarged ambit all offences against laws with respect to any of the matters specified in List I or List II were specifically excluded. The reason for such inclusion and exclusion seems to be that offences against laws with respect to any of the matters specified in List I or List II are given a place in Entry No. 93 of List I and Entry No. 64 of List II in the Seventh Schedule. The Indian Penal Code is a compilation of penal laws, providing for offences relating to a variety of matters, which are referable to the various Entries in the different Lists of the 7th Schedule of the Constitution. Many of the offences in the Penal Code relate to matters, which are specifically covered by the Entries in the Union List. Examples of such offences are to be found in Chapter VII, offences relating to the Army, Navy and Air Force; Chapter IX-A, offences relating to Elections; Chapter XII, offences relating to coin and Government stamps; Chapter XIII, offences relating to Weights and Measures; and the bunch of Sections 489-A to 489E, offences relating to Currency-Notes and Bank-Notes, which are referable to Entries Nos. 4, 72, 36, 50 and 36, respectively, of List I of the Seventh Schedule. This excluding clause in Entry No. 1, List III read with Entries Nos. 36 and 93 of the Union List, shows beyond all manner of doubt that in respect of offences falling under Sections 489-A to 489D, only the Central Government is competent to suspend or remit the sentence of a convict."

Mr. K.C. Kausik, learned Addl. Solicitor General of India also submitted that for the offences under Unlawful Activities (Prevention) Act, 1967, permission from the Central Government shall be necessary for withdrawal of cases. He has relied upon the aforesaid case of G.V. Ramanaiah (supra) which has been followed by Madras High Court in 2002 CriLJ 3820 N.A. Ravikumar versus S. Suresh Kumar, Manu/TN/0386/2002 Ajai Joseph Iruthaiaraj @ Raja (Now confined in Central Prison, Madurai) versus State, rep. By Secretary to Govt. Home Department, Fort St. George, Chennai and by Hon'ble Supreme Court in one another case reported in (2003)7SCC 121 State (Govt. of NCT of Delhi) versus Prem Raj.

In view of the case of G.V. Ramanaiah (supra), there appears to be no room of doubt that Chapter VI of I.P.C contains the offences relating to Union List in view of Entry 93. Accordingly, it shall be necessary to obtain permission from the Union of India with regard to the offences where the accused are prosecuted under Unlawful Activities Act, 1967, offences contained in Chapter VI of the Indian Penal Code, Explosive Substances Act, 1908, Arms Act, 1959 and alike offences.

165. The offence under 1967 Act undisputedly in view of the Apex Court's judgment relates to defence of India covered by Entry 1 of List I. The offence under Chapter VI of the I.P.C with the same analogy relates to defence of India, its sovereignty, unity and integrity. Both the cases seems to be of the same nature, though regulated by different central enactments. Entry No. 1 relates to defence of India, Entry 5 relates to arms, firarms, ammunitions and explosives. Entry 12 relates to U.N. Organisation. The amendment in 1967 Act has been done in pursuance to the U.N. Security Council Resolution (supra). The explosives recovered and exploded at various places in the State of U.P makes out an offence under Entry 5. The terrorist act undisputedly is an offence relating to security and defence of India. Hence, under these factual matrix on record, all the offences where the person is charged for commission of offence under Chapter VI of the I.P.C or Explosive Substances Act, 1908, Unlawful Activities Act, 1967 (supra), the cases may not be withdrawn unless the Government of India accords permission in pursuance to the provisions contained in Clause (i) of proviso to Section 321 CrPC.

166. Thus, Clause (i), (ii), (iii) and (iv) of the proviso as contained in Section 321 CrPC are exceptions to the main provision and constitute entirely different situations where the Central Government steps into and has been conferred power to grant permission to the Prosecuting Officer where the Prosecutor Incharge of the case has not been appointed by it. Unless the Central Government grants permission to the Presenting Officer to withdraw the criminal case from prosecution, the Prosecutor Incharge of the case if not appointed by the Central Government shall have no right to move application under Section 321 CrPC. All the four situations dealt with by the proviso collectively constitute different class dealing with different situations.

167. Aforesaid proposition of law with regard to the proviso is also borne out from the Constitution Bench judgment of Hon'ble Supreme Court in the case of Sheonandan Paswan (supra). Hon'ble Justice Bhagwati along with Justice Ojha while considering the proviso contained in Section 321 CrPC had made following observation :

"Proviso to Section 321 in fact contemplates in so many terms that in certain categories of offences, the Public Prosecutor appointed by the State Government cannot move the court for its consent to withdraw from the prosecution without permission of the Central Government. (para 27)"

The aforesaid observation does not seem to have been dissented by other Hon'ble Judges of Supreme Court who delivered separate judgment. Accordingly, it shall be obligatory for the Presenting Officer to obtain prior permission of the Central Government with regard to cases falling under the proviso clause (i), (ii), (iii) and (iv) of Section 321 CrPC before moving application in the court. In case prior permission is not obtained with regard to offences covered by the proviso of Section 321, then it shall not be open for the courts to entertain an application for withdrawal of case.

168. U.P. Amendment has been done in the original section where written permission from the State Government shall be required to move an application for withdrawal of prosecution. The U.P. Amendment does not affect the statutory mandate to receive permission from the Central Government in the situations covered by the proviso(supra).

(vi) NATURE OF THE ORDER OR INSTRUCTION OF THE STATE GOVERNMENT

169. Public order and police falls under Entry 1 of List II of Seventh Schedule of the Constitution. Directions by the State Government may be issued within the jurisdiction conferred by the Constitution under the Government's administrative and not the legislative power. Article 73(1) and Article 162 confer administrave power on the Central and State Governments respectively. The executive power of the Union extends to matters with respect to which Parliament has power to make laws (List I and III). The administrative power of a government is thus co-extensive with its legislative power. The Centre can make laws with respect to matters enumerated in Lists I and III of Seventh Schedule whereas the States can make laws with respect to matters enumerated in Lists II and III of the Seventh Schedule. Power conferred under List III is subject to repugnancy test of the law legislated by the Central Government. Whatever the government does under any of these constitutional provisions may not be regarded as a rule. The extent and scope of the executive power of the modern government is not capable of any precise definition vide AIR 1955 SC 549 Ram Jawaya Kapoor versus State of Punjab, AIR 1974 SC 1232 Naraindas Indurkhya versus State of Madhya Pradesh.

However, as a general proposition, the government may issue appropriate direction on any matter falling within the range of its administrative power so long as the field is not occupied by any statutory provision or rule. In case the government misuses some statutory power, and issues a direction or passes an order, then such direction must be within the four corners of statutory provision. However, an authority, statutory or non-statutory can also issue direction under its own administrative power vide AIR 1982 SC 917 N.T. Khanzode versus Reserve Bank of India, AIR 1988 SC 6 V. Bala Subramanyam versus T.N. Housing Board and others.

170. Direction or order passed by the State Government appears in various guises. Directions may confer benefits, or impose duties on persons concerned subject to statutory limitation. Such direction may also be used to explain or interpret the law in ordinary non-technical language. Issuance of directions has become an essential or normal technique in modern time. The directions are less formal than rules. The administrative authority churn different directions for a variety of purpose and in variety of ways like letters, circulars, instructions, orders, memorandum, directives, bulletins, guidelines, manuals, pamphlets, public notices, press notes, government gazette etc. Sometimes direction may even be published in government gazette. A direction may be specific or general in nature laying down some general norms or principle of policy, practice or procedure to be followed in similar cases.

171. Hon'ble supreme Court in a case reported in AIR 1975 SC 1331 Sukhdev Singh versus Bhagatram held that the rules, regulations, schemes, bye-laws, orders made under statutory powers are all comprised in delegated legislation.

172. The Administrative Law is the most outstanding legal development of 20th Century. In Indian context, during Mauryas and Gupta's period, (321 B.C.), there was well developed administrative law. Rapid growth rate of administrative law in modern context is the direct result of administrative power and functions. Supreme Court of India with regard to basic tenor of Indian Constitution observed,

"The Indian Constitution envisions to establish an egalitarian social order rendering to every citizen, social, economic and political justice in a social and economic democracy"

vide AIR 1997 SC 3297 at 3326 Samatha versus State of A.P.

173. The State day to day pervades every aspect of human life. In modern democratic society, the administration has acquired an immense accession of power and has come to discharge functions which are varied and multifarious in scope, nature and ambit. The question of protecting individual's right, social rights, dignity and privacy of life sometimes suffers from mal-administration. It is necessary to have good and fair administration which will lead to healthy democracy. Democracy shall not be more than a mere facet if the rights of the people are infringed without affording them a proper redressal mechanism. Law and order being State subject and keeping in view the political fall out and corruption at different levels, the administrative power and action taken thereon by the State must be scrutinised closely keeping in view the constitutional mandate through judicial review.

174. Wheare observed in his book, " Mal administration and its Remedies" that broad and uncontrolled discretionary powers conferred on administrators have inherent seeds of corruption for, in the absence of guiding norms to guide the exercise of such powers, there may be no way to assess whether a particular decision arrived at by an administrator is bona fide or is motivated by some corrupt consideration. It will be extremely difficult, if not impossible, to contain corruption in a country where uncontrolled powers are conferred on administration."

175. Jennings in "Law of Constitution" (4th Edn. 1952) observed that the the difficulty in formulation of Administrative Law is that the discretionary administrative functions are vast in scope and range.

176. It appears that to meet out the challenges which different democratic countries are facing, the development of Administrative law is the combination of French 'Droit Administratif', Dicey's 'rule of law' and practicalities coming in the way of establishing the 'rule of law' and 'good governance'. That is why, in Indian context, the separation of power has been held by Hon'ble Supreme Court as 'broader' in term and not 'strict' vide AIR 1951 SC 332 Delhi Law Act, 1912 in Re, AIR 1964 SC 648 Jayantilal Amritlal Sholdhan versus F.N. Rana, AIR 1966 SC 1987 Chandra Mohan versus State of U.P., AIR 1968 SC 1138 Udai Ram Sharma versus Union of India, AIR 1965 SC 1595 Associated Cement Cos. Limited versus P.N. Sharma, (1973)4 SCC 225 Keshvanand Bharti versus state of Kerala, 1975 Supp. SCC 1 Indira Nehru Gandhi versus Raj Narain, AIR 1982 SC 149 S.P. Gupta versus Union of India, (2009)2 SCC 1 Mahmadhusen Abdulrahim Kalota Shaikh (2) versus Union of India, (2011)4 SCC 36 GVK Industries Limited and another versus Income Tax Officer and another.

177. Lord Wrenbury in Roberts versus Hopwood (1925) AC 578 laid down how a person whom a discretion is vested should exercise power, which is as follows :

"A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so - he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course which reason directs. He must act reasonably."

178. In De Smith's Judicial Review (page 266 (6th Edition), it is said that the fundamental to the legitimacy of public decision-making is the principle that official decisions should not be infected with improper motives such as fraud or dishonesty, malice or personal self-interest. A power is exercised fraudulently if its repository intends for an improper purpose, for example dishonestly, to achieve an object other than that which he claims to be seeking. The intention may be to promote another public interest or private interests. A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Bad faith is a serious allegation which attracts a heavy burden of proof. Learned author formulated six tests(supra) where an actor (decision making body) has sought to achieve unauthorised as well as authorised purpose(pages 276, 277, 278 and 279). Those tests are :

1)What was the true purpose for which the power was exercised.

2) What was the dominant purpose for which the power was exercised ?

3) Would the power still have been exercised if the actor had not desired concurrently to achieve an unauthorised purpose ?

4) Was any of the purposes pursued an authorised purpose ?

5) Was any of the purposes pursued an unauthorised purpose ?

6) Would the decision-maker have reached the same decision if regard had only been had to the relevant considerations or to the authorised purposes ?

While laying down the aforesaid six conditions(supra) to test the validity of an administrative order or decision taken by the State, learned author (supra) observed :

"If the exercise of a discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account (expressly or impliedly), a court will normally hold that the power has not been validly exercised.

It may be immaterial that an authority has considered irrelevant matters in arriving at its decision if it has not allowed itself to be influenced by those matters and it may be right to overlook a minor error of this kind even if it has affected an aspect of the decision. However, if the influence of irrelevant factors is established, it does not appear to be necessary to prove that they were the sole or even the dominant influence. As a general rule it is enough to prove that their influence was material or substantial. For this reason there may be a practical advantage in founding a challenge to the validity of a discretionary act on the basis of irrelevant considerations rather than extraneous purpose, though the line of demarcation between the two grounds of invalidity is often imperceptible."

179. The courts while entertaining and deciding an application under Section 321 CrPC may test the application moved by the Public Prosecutor for withdrawal of criminal case after taking into account the aforesaid six tests laid down by the learned author which are not all but few among others.

180. Prof. Wade in his most celebrated treatise 'Administrative Law' (10th Edition) observed that the purpose of Administrative Law are to ensure legal control of administrative power and to provide protection to the individual against abuse of such power."

181. The Supreme Court in a case reported in AIR 1984 SC 1064 Sudhir Chandra versus Tata Iron & Steel Co. Limited observed :

"................our Constitution envisages a society governed by rule of law. Absolute discretion uncontrolled by guidelines which may permit denial of equality before law is the anti-thesis of rule of law. Absolute discretion not judicially reviewable inheres the pernicious tendency to be arbitrary and is therefore violative of Article 14. Equality before law and absolute discretion to grant or deny benefit of the law are diametrically opposed to each other and cannot co-exist."

182. In Bachan Singh versus State of Punjab AIR 1982 SC 1235, Hon'ble Supreme Court held that the rule of law which permeates the entire fabric of the Constitution and indeed forms one of its basic features excludes arbitrariness where court finds arbitrariness or unreasonableness , it shall be denial of rule of law.

183. In Naraindas versus State of M.P. AIR 1974 SC 1232, Hon'ble Supreme Court held that if power conferred by statute on any authority of the State is vagrant and unconfined and no standards or principles are laid down by the statute to guide and control the exercise of such power, the statute would be violative of the equlity clause which may permit arbitrary and capricious exercise of power which is the antithesis of equality before law.

184. In Air India versus Nergesh Meerza AIR 1981 SC 1829, Hon'ble supreme court struck down the provision on the ground of excessive delegation of discretion which does not provide any guiding rules or principle to govern the exercise of discretion by Managing Director.

185. In Suman Gupta versus State of Jammu & Kashmir AIR 1983 SC 1235, Hon'ble supreme Court held that an uncontrolled and unguided discretionary power is incompatible with Art. 14. The administrative power is to be exercised within defined limits in the reasonable discretion of designated authority.

186. It is well settled proposition of law that every State action should be just and fair and be issued to ensure public good vide AIR 1978 SC 597, Smt. Maneka Gandhi Vs. Union of India and another, AIR 1991 SC 101, Delhi Transport Corporation Vs. DTC Mazdoor Congress. It is further well settled proposition of law that in case a person holds public office, then in the event of exercise or non-exercise of public power, such person may be held accountable vide Common Cause A Registered Society versus Union of India (1999) 3 SC 2979.

187. The instruction issued by the State Government or a District Magistrate for withdrawal of case by the Presenting Officer or order passed while doing or granting permission to withdraw cases in pursuance to Sub Section (1) of Section 321 CrPC may be tested by the courts under the aforesaid broader principle of law to find out whether the withdrawal of cases shall safeguard the interest of administration of justice. A Presenting Officer may also take an independent decision without being influenced by the instruction of the State Government on the aforesaid broader principle of law.

188. A Constitution Bench of Hon'ble supreme Court in the case reported in AIR 1970 SC 150 A.K. Kraipak and others versus Union of India and others held that the difference between judicial, quasi judicial and even the administrative decisions has been obliterated. Every order/instruction of the State not only should be just and fair but may be subject to judicial review. The Supreme Court held that with intention to prevent the abuse of power and to see that it does not become a new despotism, the courts are gradually evolving the principles to be observed while exercising administrative powers. To quote relevant portion :

"13. The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power.

This is departure from the principle laid down by Supreme Court in the case of Sheo Nandan Pashwan (supra).

189. The second necessity required for issuance or passing of an order by the State Government while exercising administrative power is the order passed or instruction issued by the State Government must be reasoned one. Since section 321 CrPC relates to administration of justice and is an exception where the government interferes within the domain of judiciary, seeking discharge or acquittal of an accused, it shall always be necessary to pass a reasoned order. The Presenting Officer should also while moving application must assign reason disclosing the public interest involved in withdrawing the prosecution.

190. Learned author (De Smith's Judicial Review, 6th Edition) has rightly held that failure to give adequate reasons may indicate that a decision is irrational. Learned author observed as under :

"The beneficial effects of a duty to give reasons are many. To have to provide an explanation of the basis for their decision is a salutary discipline for those who have to decide anything, that adversely affects others. The administration in that it encourages a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making. The giving of reasons increases public confidence in the decision-making process. The giving of reasons can also render it easier to determine if a decision is irrational or erroneous."

191. Sir W.W.R. Wade in his famous treatise "Administrative Law" (10th Edition) observed :

"The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely-that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended."

192. Learned author(supra) referred a case reported in Breen versus Amalgamated Engineering Union (1971)2 QB 175 where Lord Denning MR has relied upon the earlier judgment of House of Lords, Padfield versus Minister of Agriculture, Fisheries and Food and held as under :

"The importance of the House of Lords' decision was underlined by Lord Denning MR.

The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this : the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law."

193. In The United States, the Courts from time to time insisted upon recording of reasons in the decision taken by administrative authority. In Phleps Dodge Corporation versus National Labour Relations Board (1940)85 Law Ed 1271 at p. 1284, it has been held that the authority should give clear indication that it has exercised the discretion with which it has been empowered because administrative process will best be vindicated by clarity in its exercise.

194. In Securities and Exchange Commission versus Chenery Corporation (1942)Law Ed 626 at p. 636, it has been held that orderly functioning of the process of the administrative agency be clearly disclosed and adequately sustained.

195. The Federal Administrative Procedure Act, 1946 prescribes the basic procedural principles which are to govern formal administrative procedures and contained an express provision (Section 8(b)) to the effect that all decisions shall indicate a statement of findings and conclusions as well as reasons or basis therefor, upon all the material issues of fact, law or discretion presented on the record.

196. The Supreme Court in a case reported in AIR 1976 SC 1785 Seimens Engineering and Manufacturing Company of India Limited versus Union of India and another, held as under :

""6..............If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the ad judicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law."

197 In one another case reported in (2004)5 SCC 568 State of Orissa versus Dhaniram Lunar, their Lordships of Supreme Court held as under :

"8......... Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made.........."

198. In Mc Dermott International Inco. Versus Buru Standard Co. Limited and others (2006) SLT 345, their Lordships observed as under :

"...Reason' is a ground or motive for a belief or a course of action, a statement in justification or explanation of belief or action. It is in this sense that the award must state reasons for the amount awarded. The rationale of the requirement of reasons is that reasons assure that the arbitrator has not acted capriciously. Reasons reveal the grounds on which the arbitrator reached the conclusion which adversely affects the interests of a party. The contractual stipulation of reasons means, as held in Poyser and Mills' Arbitration In Re, "proper, adequate reasons". Such reasons shall not only be intelligible but shall be a reason connected with the case which the court can see is proper. Contradictory reasons are equal to lack of reasons................"

199. A Division Bench of this Court in a case reported in 2007 LCD 1266 Vijai Shanker Tripathi versus Hon'ble High Court of Judicature at Allahabad has considered the concept of exercise of discretionary power by the State or its authorities including the High Court held that every administrative order passed by authorities must fulfil the requirement of Art. 14 of the constitution.

200. Supreme Court in a case reported in JT 2010(9) SC 590 M/s. Kranti Associates Private Limited and another versus Sh. Masood Ahmed Khan and others held that a cryptic order shall deem to suffer from vice of arbitrariness. An order passed by quasi judicial authority or even administrative authority must speak on its face.

In a case reported in 2010(4) SCC 785 CCT versus Shukla and Brothers, their Lordships held that the reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases. Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty. To quote relevant portion from the judgment (supra), to quote :

"Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principle are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements."

201. The aforesaid view with regard to reasoned order by authorities which include judicial and quasi judicial authorities has been consistently reiterated by the Supreme Court in earlier judgments. Their Lordships of Hon'ble Supreme Court held that the authorities have to record reasons, otherwise it may become a tool for harassment vide K.R. Deb versus The Collector of Central Excise, Shillong, AIR 1971 SC 1447; State of Assam and another versus J.N. Roy Biswas, AIR 1975 SC 2277; State of Punjab versus Kashmir Singh, 1997 SCC (L&S) 88; Union of India and others versus P. Thayagarajan, AIR 1999 SC 449; and Union of India versus K.D. Pandey and another, (2002)10 SCC 471.

In a recent judgment reported in AIR 2013 SCW 2752 Union of India versus Ibrahimuddin(para 33), their Lordships of Hon'ble Supreme Court reiterated that every order passed by the administrative authority, judicial or quasi judicial must be a reasoned order.

202. From the foregoing discussion with regard to passing of a reasoned order by administrative, quasi judicial or judicial authorities, it appears that the law on the question has travelled a long way.

203. Much reliance has been placed by learned Senior Counsel representing the State of U.P on the case of Sheonandan Paswan(supra) where by majority, their Lordships of Hon'ble Supreme Court held that assigning of reason by the Court or Presenting Officer is not necessary (paras 79, 87, 90). However, their Lordships by majority relied upon the judgment of The State of Bihar versus Ram Naresh Pandey, reported in AIR 1957 SC 389. In the case of Ram Naresh Pandey(supra), Supreme Court held that the consent is not to be given lightly on the application of Public Prosecutor without careful and proper scrutiny of the grounds on which application for consent is made (para 90). In para 94 of the judgment, their Lordships relied upon two earlier judgments Bansi Lal versus Chandan Lal AIR 1976 SC 370 and M.N. Sankarayarayanan Nair versus P.V. Balakrishnan AIR 1972 SC 496. Supreme Court noted that the consent was set aside because reluctance to produce evidence was held to be not sufficient ground for withdrawal. Thus, the cases relied upon by majority Judges of Supreme Court through Justice Khalid itself indicates that no permission can be granted for illegitimate reasons or purpose without careful and proper scrutiny of grounds on which the application for consent is made. Careful and proper scrutiny of ground and legitimate reasons itself impliedly requires that the court has to apply mind and pass a reasoned order.

204. In the case of Abdul Karim also (supra), Supreme Court held that the court has to examine all relevant aspects and further frame questions which are required to be considered by Public Prosecutor (supra) impliedly require reasoned order.

205. In R.D. Shetty versus International Airport Authority of India reported in (1979)3 SCC 489 (para 10) again, the Supreme Court stressed for recording of reasons.

206. Same ratio emerges from (1981)4 SCC 327 Nandlal Bajaj versus State of Punjab (para8), (1991)1 SCC 212 Srilekha Vidyarthi versus State of U.P.(para 30), (1991)4 SCC 54 Bangalore Medical Trust versus State of Karnataka.

207. The case of A.K. Kraipak(supra) is also Constitution Bench judgment of Supreme Court and seems to be turning point where Hon'ble Supreme Court has held that difference between quasi judicial and judicial orders has been obliterated. Later on, a Special Bench of Hon'ble Seven Judges in the case of Menka Gandhi (supra) has reiterated the aforesaid proposition in different words and widened the principle of natural justice. Hon'ble Supreme Court in its subsequent judgments (supra) has held that a cryptic and unreasoned order shall be violative of principle of natural justice.

208. Subject to the aforesaid proposition of law, we have to consider the right of the State Government to issue instruction or right of Public Prosecutor to move application. The development of law in the manner indicated(supra) requires that while issuing any instruction or passing order, the government has to pass a reasoned order indicating therein as to why the withdrawal of criminal prosecution is necessary to secure the administration of justice.

209. In case an incident relates to terrorism and the accused is tried for terrorist activities or related offence, then more burden lies on the shoulder of the government as well as the courts to be cautious before taking a decision. The Government has to disclose not only grounds and reasons while issuing instruction for withdrawal of case or granting permission but it shall further be necessary for it to indicate that the withdrawal of cases is necessary for the administration of justice and shall not erode the public faith in any manner in the administration of justice and the release of the accused shall not be fatal to the society or country and accused are not likely to commit an offence enumerated in Section 15 of the 1967 Act (supra) or other alike statutory provisions, as discussed in preceding paras.

210. It should be kept in mind that the power conferred by Section 321 is an 'in road' in the arena of Judiciary (Article 50) and is an 'exception', assigning power to government to make prayer through Public Prosecutor for withdrawal of case resulting in discharge or acquittal of an accused, which basically falls within the domain of judiciary. The power conferred by an exception should be used rarely with open mind in the interest of administration of justice to secure public and National interest, and not for any political gain or personal interest.

211. In case any instruction is issued or application filed by the prosecuting officer is unreasoned or mechanical in nature, then such instruction issued by the government or the application moved thereon by the prosecuting officer should outrightly be rejected by the Courts.

Page 82, para 212

212. Madiba (Nelson Mandela), the great Gandhian leader and noble laureate of South Africa, in his biography, 'The Struggle is My Life' (1990) said, to quote :

"Since my release I have become more convinced than ever that the real makers of the history are the ordinary men and women of our country, their participation in every decision about the future is the only guarantee of true democracy and freedom."

The peoples' participation in democratic polity is not possible unless the decision making process of the Government is transparent and orders passed by it are reasoned one.

213. Nobel laureate Rabindra Nath Tagore in Gitanjali, while convasing for 'reason' or 'rationality' in life wrote, to quote a couplet :

".........where the clear stream of reason,

has not lost its way into the dreary desert sand,

of dead habit;

where the mind is led forward by thee,

into ever-widening thought and action-

Into that heaven of freedom, my Father,

let my country awake.

214. The instruction issued by the government must disclose the grounds, necessity and public interest that necessitated the withdrawal of prosecution in the interest of administration of justice. Special reason should be assigned (supra) when an accused is charged under the 1967 Act or other alike statutory provisions (supra).

215. It is quite obvious that every litigant who approaches the court to seek justice is entitled to know the reasons for acceptance or rejection of a request. It is also apparent that when courts deliver a judgment, reasoning should be given(supra) which is subject to scrutiny by the appellate or revisional courts. Thus, unless the reasons are cited, the appellate or revisional forum shall not be able to administer justice efficiently and fairly.

216. No doubt the courts are vested with discretionary power to take a decision or pass an order but such powers are to be exercised judicially, equitably and in consonance with settled principles of law. In view of catena of judgments of Hon'ble Supreme Court (supra), broadly, the same principle is applicable to the administrative orders dealing with statutory or constitutional matters or affecting civil rights of the citizen or National interest.

(viii) CONCLUSIVE DISCUSSION AND FINDING OVER THE ISSUES INVOLVED

217. Subject to discussion and finding recorded hereinabove in the preceding paras, we proceed to consider some other arguments advanced by the learned counsel for the parties while dealing with the questions referred by the Division Bench individually as under :

QUESTION NO.1

218. (i) Whether the State Government can issue Government Order for withdrawal of cases without there being any request by the public prosecutor in charge of the case?

While considering the issue in question, we have recorded a finding (supra) that the government exercises sovereign functions for maintenance of law and order. Unless there is statutory prohibition under the Act or under any other law for the time being in force, the Government has the right to issue instruction or direction to the Subordinates in the hierarchy of system for a particular purpose, subject to constitutional and statutory limitation. Section 321 CrPC does not contain any caveat or rider on the power of the State Government to issue direction or instruction for withdrawal of prosecution. Hence, keeping in view the discussion in the preceding paras, the Government has the right to issue instruction to the Prosecuting Officer with regard to withdrawal from the Prosecution. Of course, the instruction or order passed by the government shall not be binding on the Public Prosecutor. On the basis of available material, the Public Prosecutor has to take decision independently and record his own satisfaction before moving an application in the Court for withdrawal from the Prosecution.

QUESTION NO.2

219 (ii) Whether the prosecution can be withdrawn without assigning any reason as to why the prosecution was sought to be withdrawn and is therefore unconstitutional and violative of Article 14 of the Constitution of India?

Learned counsel for the petitioner vehemently argued that since the crime relating to terrorist activities relates to national security and integrity of the Nation and 1967 Act (supra) has been amended in pursuance to the Resolution of the United Nations Security Council, it shall be necessary for the State or the Central Government to assign reasons while issuing any instruction for withdrawal from prosecution.

Subject to the finding recorded (supra), we consider the further argument advanced by the learned Senior Counsel on behalf of the State of U.P.

220. It has been submitted by Mr. Chaudhary that the Administrative Law principle cannot be applied to matters while judging the order or instruction issued under Section 321 CrPC. He submits that only action against individual right may be subject matter of judicial review applying the principle of Art. 14 of the Constitution of India. He submits that no reason is required to be given, since Article 14 does not apply in such matters.

Much emphasis has been given by the learned counsel on the Apex Court's judgment of Sheonandan Paswan(supra), followed by Ayyub (supra) to submit that it is not necessary for the Government or the Court to assign any reason.

221. It is incorrect to say that in Sheonandan Paswan(supra), the opinion expressed by the Majority does not require any reason. A close scrutiny of the Constitution Bench judgment reveals that the Majority opinion seems to be in favour of assigning of reason in case the observation made and issue decided by the Constitution Bench is looked into closely.

222. Justice Bhagwati and Justice Oza have delivered a common judgment and held that every offence has a social and economic cause behind it. In case the State feels that elimination or eradication of social cause requires withdrawal of prosecution, then the State can approach the Court. Their Lordships further held that it may be done keeping in view the broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long lasting security in a locality, of order in a disorderly situation or harmony in a factious milieu which may legitimately persuade the State to "sacrifice a pending case for a wider benefit" (para 31). However, their Lordships further held that instead of the prosecution being withdrawn and taken out of the ken of judicial scrutiny the judicial verdict based on assessment and evaluation of the material before the Court will always inspire greater confidence. Since the guiding consideration in all these cases is the imperative of public justice and it is absolutely essential that justice must not only be done but also appear to be done (para 30).

223. Their Lordships further held that (supra) discretion has not to be exercised by the court mechanically and the consent applied for has not to be granted as a matter of formality or for the mere asking. The legitimate grounds on which an application may be made by the public prosecutor for withdrawal from the prosecution must also apply in guiding the Court. (para 32). Means, it shall be necessary for the State and Public Prosecutor to assign reason with regard to decision taken by them (emphasis supplied).

Their Lordships further held that even if some political vendetta is proved, a criminal prosecution, if otherwise justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant. Same principle must be applied where the person is opposing withdrawal of prosecution against the accused.(para 16)

224. While upholding the right of Public Prosecutor to come to his own independent decision (supra), Justice Bhagwati and Justice Oza further held that application must be based on grounds which advance public justice (para 27). This observation also requires reason (emphasis supplied).

Justice Bhagwati and Justice Oza while considering the applicability of Art. 14 made following observation :

"It is obvious that the power conferred on the Public Prosecutor to withdraw from the prosecution must be a controlled and guided power or else it will fall foul of Article 14 the Constitution."

Their Lordships further proceed to observe as under :

"In fact, in our constitutional scheme, conferment of such absolute and uncanalised discretion would be violative of the equality clause of the Constitution. The Magistrate is therefore given the power to structure and control the discretion of the police. If the Magistrate finds from the report made by the police either on initial investigation or on further investigation directed by the Magistrate, that prima facie an offence appears to have been committed, the Magistrate is empowered to take cognizance of the offence notwithstanding the contrary opinion of the police and equally if the Magistrate forms an opinion that on the facts set out in the report no offence prima facie appears to have been committed though the police might have come to a contrary conclusion, the Magistrate can decline to take cognizance of the offence. The discretion of the police to prosecute is thus 'cabined and confined' and, subject to appeal or revision, and the Magistrate is made the final arbiter on this question....................Once the charge-sheet is filed and the prosecution is initiated, it is not left to the sweet will of the State or the Public Prosecutor to withdraw from the prosecution. The Court is entrusted with control over the prosecution as pointed out by Krishna Iyer, J. in Subhash Chander v. State 1980CriLJ324 . The even course of criminal justice cannot be thwarted by the Executive however high the accused, however sure the Government feels a case is false, however unpalatable the continuance of the prosecution to the powers-that-be who wish to scuttle Court justice because of hubris, affection or other noble or ignoble consideration."

225. Their Lordships further held that the

"the Court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the public prosecutor."

The Public Prosecutor cannot therefore withdraw from the prosecution unless the Court before which the prosecution is pending gives its consent for such withdrawal. This is a provision calculated to ensure non-arbitrariness on the part of the Public Prosecutor and compliance with the equality clause of the Constitution.(para 21). It is the duty of the Court to assign reason (emphasis supplied).

Their Lordships further proceeded to observe as under :

"It is also necessary to point out that the law has fashioned another safeguard against arbitrary exercise of power by the Public Prosecutor in withdrawing from the prosecution and this safeguard is that the Public Prosecutor can apply for withdrawal only on the basis of certain legitimate grounds which are germane or relevant to public justice. It is significant to note that the entire development of administrative law is characterised by a consistent series of decisions controlling and structuring the discretion conferred on the State and its officers. The law always frowns on uncanalised and unfettered discretion conferred on any instrumentality of the State and it is the glory of administrative law that such discretion has been through judicial decisions structured and regulated."

226. It has been further held (supra) that the Public Prosecutor cannot act without instruction of the government or conduct a case absolutely on his own or contrary to the instruction of his client namely the government but while taking into account the instruction of the government, he has to apply independent mind (para 26).

227. Though, Justice Venkataramiah (supra) has concurred with the outcome of majority judgment delivered by Justice Khalid and Justice Natrajan but so far as the question of reasoning and applicability of Art. 14 of the Constitution is concerned, His Lordship seems to have reiterated the proposition of law as propounded by Justice Bhagwati and Justice Oza as is apparent from separate judgment. His Lordship has declined to interfere on the final verdict but like Justice Bhagwati relied upon the earlier judgment delivered by Justice Krishna Ayer and Justice Chinnappa Reddy.

228. In view of above, reasoning shall always be necessary. Keeping in view the discussion made in the preceding paras as well as the Constitution Bench judgment of Sheonandan Paswan(supra) with regard to reasoning and applicability of Art. 14 of the Constitution, it shall be necessary for the Public Prosecutor as well as the Court to assign reason. On account of applicability of Administrative Law Principles also the government has to assign reason, may be precisely, as discussed in the preceding paras.

229. Though a perusal of the judgment(supra) delivered by Justice Khalid and Justice Natrajan in the beginning paras reveals that the reason is not necessary but a close reading of the latter part of the judgment particularly from paras 87 to 99 and onwards reveals that the reasoning shall be necessary. Same judgment has been relied upon by their Lordships which has been relied upon by Justice Bhagwati and Justice Venkataramiah which impliedly requires that there must be some reason for withdrawing the prosecution otherwise it shall be hit by Art. 14 of the Constitution of India.

230. It is incorrect to say that executive power and administrative power are entirely different thing. Reliance placed by the learned Senior counsel of the State of U.P. over Jayanti Lal Amrit Lal Shodhan (supra) seems to be misplaced. Hon'ble Supreme Court in the case of Jayanti Lal Amrit Lal Shodhan(supra) itself had held that whatever left from judicial and legislative power are the executive power and there is nothing like residual or miscellaneous function which is left over by three functionaries. After considering Holsbery Law of England, Constitutional Law of Wales and Philips, an observation has been made that the executive power or the administrative power are the same powers exercised by the executive. It has been held that it is customary to divide function of the government into three organs namely, Legislative, Executive or Administrative and Judiciary.

231. Aforesaid proposition has been reiterated in the Constitution Bench judgment consisting seven Judges of Supreme Court in Shamsher Singh versus State of Punjab 1974 SC 2192 (para 29).

Accordingly, the argument advanced by Mr. Anoop George Chaudhary does not seem to be sustainable. The principle of Administrative Law as well as the mandate of Art. 14 of the Constitution shall be very well applicable to a proceeding under Section 321 CrPC keeping in view Constitution Bench judgment in the case of Sheonandan Paswan, Abdul Karim(supra), Jayanti Lal Amrit Lal Shodhan (supra), Shamsher Singh (supra) and other cases discussed and referred in the preceding paras.

It shall be necessary for the government, Prosecuting Officer as well as the court to assign reason while taking a decision in pursuance to the power conferred by Section 321 CrPC. in view of amendment done in 1967 Act as well as Abdul Karim (supra) and for the reasons discussed in the body of the judgment.

QUESTION No. 3

232. (iii) Whether the prosecution of offence relating to Central Act may be withdrawn without taking permission from the Central Government?

Mr. H.S. Jain, learned counsel appearing on behalf of the petitioner vehemently argued that for offences under three Acts - 1967 Act, Arms Act, 1959 and Explosive Substances Act, 1908, permission from the Central Government shall be necessary in view of clause (1) of proviso of section 321 crpc.

Mr. K.C. Kaushik, learned Addl. Solicitor General of India also while defending the cause of the Union of India/Central Government submitted that permission from the Central Government with regard to offence under three Acts (supra) shall be necessary. However, learned counsel for the Union of India further submitted that permission should be taken relating to offences not only under the three Acts (supra) but also other Central Acts and in some cases State Acts where the offence relates to a matter falling under List I and List III of Seventh Schedule of the Constitution.

233. Mr. Anoop George Chaudhary, learned Senior Counsel representing the State of U.P. very fairly submitted that it is not the question of only three Acts but question relates to any law or offence to which the executive power of Union exists. Argument advanced by Mr. Chaudhary seems to be correct since Section 321 CrPC does not refer to a Central Act but to an offence where executive power of the Union exists. However, it appears that the question has been framed keeping in view the pleadings contained in the writ petition where a case has been set up by the petitioner that for the offences falling under three Acts (supra), permission from the Central Government shall be necessary.

It is further argued that since question No. 3 does not relate to an offence as provided under Section 321 CrPC but relates to Central Act, no answer should be given. Submission of Mr. Chaudhary seems to be not sustainable. It was open for the Division Bench to refer the entire case to Larger Bench under the Rules of the Court or could have referred the questions after hearing learned counsel for the parties with dissent note on the basis of the pleadings on record, to a Larger Bench. Virtually, proceeding before a Larger Bench is the continuation of original proceeding before the Division Bench since after giving answer to the questions framed by the Division Bench, matter shall be remitted back for hearing on merit to the Division Bench.

234. It is well settled law that a writ petition is to be decided on the basis of pleadings on record between the parties. Accordingly, it shall always be necessary that in case a question is framed for reference to a Larger Bench, it must be based on pleadings on record. It has been held by Hon'ble Supreme Court that a finding in absence of pleadings and supporting evidence is not sustainable under law vide M/s. Atul Castings Limited versus Bawa Gurvachan Singh AIR 2001 SC 1684, Vithal N. Shetti and another versus prakash N. Rudrakar and others (2003)1 SCC 18, Devasahayam (Dead) by L.Rs. Versus P. Savithramma and others (2005)7 SCC 653, Sait Nagjee Purushottam and Co. Liited versus Vimalabai Prabhulal and others (2005)8 SCC 252, B.S. N. Joshi & Sons Limited Nair Coal Services Limited 2006(11) SCC 548, Raj Kumar Soni versus State of U.P. (2007)10 SCC 635, Manohar Lal (D) versus Ugrasen (D)(SC) JT 2010 (6) SC 41.

In view of above, while considering the question No. 3 with regard to permission from the Central Government, it must be in relation to the pleading on record. In the writ petition, there is specific pleading that for offences under three Central Acts, namely Unlawful Activities (Prevention) Act, 1967, Explosives Substances Act, 1908, Arms Act, 1959 and offences under Chapter VI of Indian Penal Code, permission from the Central Government is necessary.

235. Learned Senior counsel further proceeded with the second limb of argument that Clause (2) of Section 45 of the 1967 Act confers power on the State Government to grant sanction for prosecution. Accordingly, on account of statutory mandate, the State of U.P. has granted sanction to prosecute the accused in this bunch of cases. He submits that the power to accord sanction includes power to pass order or grant permission to withdraw the prosecution under Section 321 CrPC, in view of Section 21 of General Clauses Act.

236. Section 21 of the General Clauses Act does not seem to come to the rescue of the State Government. Even if Section 21 of the General Clauses Act is applied it would mean that the State Government may exercise power to modify, amend or rescind the sanction granted by it. It does not confer power to grant permission for withdrawal from Prosecution of offences under 1967 Act. Position is the same with regard to other two Acts, namely Explosives Substances Act and Arms Act(supra) where the statute confers power on the District Magistrate to grant sanction for prosecution, and offence under Chapter VI of Indian Penal Code.

237. Reliance placed by the learned counsel or the analogy drawn from Apex Court's judgment in the case reported in AIR 2003 SC 2148 OCL India Limited versus State of Orissa seems to be misplaced argument. Here, it is not the question of exercise of power relating to a subject matter which falls within the domain of the State Government or under the State Act. Question relates to exercise of power under Central Act which are complete Code in themselves.

238. Unless the Acts themselves confer power on the State Government to withdraw prosecution or grant permission to withdraw prosecution, such power cannot be exercised. In case such interpretation is given, it shall amount to reading down a provision which does not exist in the statute.

It is well settled law that casus omisus cannot be supplied by courts unless the language of the statute is ambiguous or creates absurdity vide 2003 (6) SCC 516, Union of India Vs. Rajiv Kumar (para 18), 2006 (2) SCC 670, Vemareddy Kumaraswamy Reddy and another VS. State of A.P.; (2004) 11 SCC 625, Delhi Financial Corporation and others Vs. Rajeev Anand and others; AIR 1953 SC 148, Nalinakhya Bysacik Vs. Shyam Sunder Haldar and 2001 (8) SCC 61, Dental Council of India Vs. Hari Prakash.

Provisions contained in all the three Acts (supra) as well as Indian Penal Code do not suffer from any ambiguity.

There is another reason why the State government lacks jurisdiction to grant permission. Mr. K.C. Kaushik, learned Addl. Solicitor General for the Union of India rightly invited attention to Secton 21 of the 1967 Act which provides that by notification in the official gazette, the Government of India may delegate any of its powers provided under the Act to the State Government. Such delegation must be done through a notification. Mr. Kaushik submits that no notification has been issued by the Central Government delegating its power under these Acts to be exercised by the State Government.

239. Section 42 of 1967 Act, Section 43 of Arms Act, 1959 as well as Section 17 of Explosive Substance Act contains specific provision with regard to delegation of power by notification in official gazette which admittedly has not been done. Argument advanced by Mr. Kaushik seems to be correct that in absence of any notification issued under these three statutory provisions of three Acts, State cannot be permitted to exercise jurisdiction with regard to grant of permission for withdrawal of prosecution.

240. Other argument of Mr. Anoop George Chaudhary, representing the State of U.P. that prison falls under Entry 4 of List II and in view of the provisions contained in sections 434 and 453 crpc, state and Centre have concurrent power to exercise jurisdiction also does not seem to be correct. All the three Acts being special Act are self contained Codes. The power to withdraw from the prosecution in question cannot be exercised by the State Government unless provided by the Act itself or under Section 321 CrPC.

241. Learned counsel for the petitioner has rightly invited attention to Sections 2(n), 4(2), 196 and 435 CrPC. Section 2(n) defines 'offence' to mean any act or omission made punishable by any law for the time being in force................. Section 4 relates to trial of offences under the Indian Penal Code and others laws. It provides that all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions contained in the Code of Criminal Procedure. Sub Section (2) of Section 4 provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquirng into, trying or otherwise dealing with such offences. Section 2(n) and Section 4 of CrPC are reproduced here-under:

" 2(n) "offence" means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871(1 of 1871);"

"4. Trial of offences under the Indian Penal Code and other laws. (1) All offences under the Indian Penal Code (45 of 1860 ) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

Sub Section (2) of Section 435 CrPC provides the State Government to act after consultation with the Central Government in certain cases while exercising power under Sections 432 and 433 with regard to commutation of sentence. Sub Section(2) provides that where offences relate to a matter to which the executive power of the Union extends, then in such situation, decision is to be taken by the Central Govt. in relating to offence committed by such person.

Similar provision has been made in Section 432 of the CrPC.

242. The overall reading of different provisions of the Code of Criminal Procedure and Indian Penal Code reveals that wherever the executive power of the Union relating to an offence exists, power has been conferred to take a decision in the matter on the Central Government which seems to be in tune of the Law Commission Report (supra).

243. There is another aspect of the matter. Question with regard to withdrawal of prosecution has been conferred on the State as well as Central government by Section 321 CrPC. Section 321 CrPC is independent provision in Cr. P.C. containing procedural law. Unless a special law or enactment contains a contrary provision, the procedure provided under the Code of Criminal Procedure shall be mandatory and binding. Any special Law or enactment shall not come in the way to exercise power conferred by Code of Criminal Procedure unless it has been given overriding effect with specific provision.

244. The provisions contained in all three Acts in question do not contain any procedure with regard to power conferred on the State or the Central Government to withdraw prosecution. Accordingly, the power conferred under the proviso to Section 321 being exception to main provision in the CrPC cannot be modified or diluted by principle of reading down or supplying casus omisus. The language of Section 321 being clear and unambiguous, no casus omisus may be supplied to it.

245. While interpreting Art. 73 of the Constitution of India and placing reliance on the Constitution Bench judgment of Ram Jawaya Kapur, Rai Sahib's case(supra), it has been vehemently argued by the learned Senior Counsel that with regard to matter under List III of Seventh Schedule, the Government of India may not exercise executive power of the Union under Art. 73 of the Constitution of India. However, argument does not seem to be sustainable since the judgment of the Constitution Bench in the case of Ram Jawaya Kapur, Rai Sahib(supra) itself indicates that the Union of India may exercise executive power with regard to matter falling under List III of Seventh Schedule, though exceptionally. Aforesaid principle with regard to exercise of executive power relating to List III has been upheld by Hon'ble Supreme Court in its subsequent judgment, particularly in the case of Jayanti Lal Amrit Lal Shodhan (supra) and Shamsher Singh (supra).

A plain reading of Articles 72, 73, 161 and 162 of the Constitution of India makes it clear that the executive power of the Union extends to a matter falling not only under List I of Seventh Schedule but also List III of the Seventh Schedule subject to repugnancy test.

246. Aforesaid proposition seems to be correct also in view of Constitution Bench judgment in Sheonandan Pawan(supra) discussed in the preceding paras where the opinion expressed by Justice Bhagwati and Justice Oza with regard to proviso to Section 321 CrPC relating to involvement of Central Government to grant permission has not been dissented by other Hon'ble Judges of the Bench.

247. In view of above, for all the offences under the three Acts in question and offences in other alike statutory provisions as well as Chapter VI of Indian Penal Code, it shall be necessary for the Prosecuting Officer not appointed by the Central Government to obtain permission from the Central Government.

QUESTION NO.4

248. (iv) Whether the State Government after giving sanction for prosecution, review its own order by issuing orders for withdrawal of the cases?

We have discussed elaborately the sovereign power of the State Government as well as the statutory provisions contained in the aforesaid three Acts. Grant of sanction to prosecution is one thing and taking a decision for the withdrawal of prosecution is another thing, and both are governed by different statutory provisions. They cannot be interlinked with each other. Power of the State Government to pass an order or issue instructions for withdrawal of prosecution even after grant of sanction for prosecution is very well permissible under Section 321 CrPC. Public order being State subject, coupled with sovereign functions, the government has the right to issue instruction or pass order subject to statutory rider and constitutional mandate (supra).

249. Before parting with the case, we wish to refer the following observation of Godwin in his book, "Political Justice" (page 268-269) while appreciating the democratic process in governance, to quote :

"Democracy restores to man consciousness of his value, teaches him by the removal of authority and oppression to listen only to the dictates of reason, gives him confidence to treat all other men as his fellow beings and induces him to regard them no longer as enemies against whom to be upon his guard, but as brethren whom it becomes him to assist."

(viii) OPINION ON QUESTIONS REFERRED

250. Subject to discussion hereinabove and the finding recorded thereon, we answer the four questions framed by the Referral Court (Division Bench) as under :

ANSWER TO QUESTION NO.1

The Government can issue an order or instruction for withdrawal from prosecution without there being request from the Public Prosecutor Incharge of the case, subject to the rider that the Public Prosecutor shall apply his/her independent mind and record satisfaction before moving an application for withdrawal from prosecution (supra).

ANSWER TO QUESTION NO.2

The prosecution cannot be withdrawn without assigning reason, may be precisely. If an application is moved for withdrawal from prosecution in a case relating to terrorism and waging of war against the country, special and specific reason has to be assigned keeping in view the discussion, made in the body of judgment (supra).

ANSWER TO QUESTION NO.3

Prosecution under Central Acts where with regard to the offences, executive power of the Union extends, prosecution cannot be withdrawn without permission of the Central Government (supra).

For offences under Unlawful Activities (Prevention) Act, 1967, Explosive Substances Act, 1908 and Arms Act, 1959 etc and the offences falling in Chapter VI of Indian Penal Code or alike offences the executive power of the Union of India extends, hence permission from the Central Government with regard to withdrawal of prosecution under Section 321 CrPC shall be necessary.

ANSWER TO QUESTION NO.4

State Government has got power to issue instruction or pass order even after sanction for prosecution has been given in a pending criminal case, subject to condition that the Prosecuting Officer has to take independent decision with due satisfaction in accordance with law on his own, before moving the application for withdrawal from prosecution in the trial court.

We answer the questions referred by the Division Bench accordingly. Let the case be listed before appropriate Bench forthwith.

The summoned original record of the State shall remain with the Registrar of the Court and be released subject to order passed by the Division Bench concerned.

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Misc. Bench No. 4683 of 2013

Ms. Ranjana Agnihotr... v. Union Of India Throu...

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

State Government's Arguments

Union of India / Central Government's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ms. Ranjana Agnihotri And Others [P.I.L] Petitioner v. Union Of India Through Secy. Ministry Of Home Affairs & Others S

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