Case Summary
| Citation | Abdul Karim v. State of Karnataka (2000) 8 SCC 710 |
| Keywords | sec 321, withdrawal from prosecution, Veerappan, Rajkumar filmstar, abduction |
| Facts | The film star Rajkumar was abducted by Veerappan and his associates; consequent thereupon, the Karnataka Government had yielded to the demands of Veerappan and had issued notifications that it would withdraw all cases against Veerappan and his associates. The public prosecutor sought withdrawal from prosecution the charges under TADA in order to restore normalcy in the border area and to maintain peaçe among the public in general and inhabitants of a particular village and also on the ground thar such withdrawal from prosecution was necessary in the larger interest of the State and in order to avoid any unpleasant situation in the border area. The application did not state why the public prosecutor apprehended a disturbance of the peace and normalcy of the “border area” or “the particular village”, nor was any material in this behalf or summary thereof, set out. The petition for withdrawal of cases, however, was allowed by the designated Court, Mysore. Aggrieved by the decision of the court, the appellant Abdul Karim, father of a police officer who had allegedly been killed by Veerappan in an encounter, moved the Apex court for cancellation of the order of the withdrawal on the ground that the state had yielded to the illegal demands of Veerappan. |
| Issues | What should be considered at time of granting of consent under Section 321? |
| Contentions | |
| Law Points | The law is that though the Government may have ordered, directed or asked a PublicProsecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind interest to will all the be served relevant by his material withdrawal and, in good from the faith, to be prosecution. Satisfied thereon that the public in turn, the court has to be satisfied, after considering all that material, that the PublicProsecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest and that such withdrawal will not stifle or thwart the process of law or cause interest,manifest injustice.” In this case, there is no statement therein which shows that the Special Public Prosecutor had the opportunity of assessing the situation for himself by reading primary material and deciding upon the basis thereof, whether he should exercise his discretion in favour of withdrawal from TADA charges. The Special Public Prosecutor, in fact, acted only upon the instructions of the Government of the State of Karnataka,. He, therefore, did not follow the requirement of the law that he be satisfied and the consent he sought under Section 321 cannot be granted by this court. There is also nothing to suggest that there was resson to proceed upon the basis that Verappan would release Rajkumar when his demands were being met in full. It yielded to the pressure tactics of those who according to the Government are out to terrorize the Police force and to overawe the elected Governments.It does not appear that anyone considered that with their action people may lose faith in the democratic process, when they see public authority flouted and the helplessness of the Government. The aspect of paralyzing and discrediting the democratic authority had to be taken into consideration. |
| Judgement | SC held the application of sec 321 is not justified in this case. |
| Ratio Decidendi & Case Authority |
Full Case Details
S.P. BHARUCHA, J. (for himself and Mohapatra, J.) – The border between the States of
Karnataka and Tamil Nadu runs through mountainous forest. On about 16,000 acres of this
forest land, half in Karnataka and half in Tamil Nadu, a man named Veerappan has held sway
for more than 10 years. He is alleged to have poached elephants and smuggled out ivory and
sandalwood in a very big way. He is alleged to be guilty of the most heinous crimes, including
the murder of 119 persons, among them police and forest officers, and kidnapping. Task forces
set up by the States of Karnataka and Tamil Nadu for the purpose have been unable to
apprehend him and bring him to justice for 10 years.
2. On the night of 30-7-2000, between 2045 and 2110 hours, Veerappan abducted from
Gajanoor a film actor named Rajkumar, who is very popular in Karnataka, and three others,
namely, Govindraj, who is the son-in-law of Rajkumar, Nagesh, who is a relative of Rajkumar,
and Nagappa, who is an Assistant Film Director. As of today, Rajkumar and Nagesh remain in
Veerappan’s custody. Nagappa is said to have escaped and Govindraj was released by
Veerappan. Gajanoor is a town in Tamil Nadu close to the border with Karnataka.
3. On 8-7-1999 the Director General of Police of the State of Karnataka had informed the
Inspector General of Police of the State of Tamil Nadu that it had been reliably learnt that
Veerappan intended to kidnap Rajkumar during the latter’s visit to his farmhouse in Gajanoor
and had requested adequate security arrangements for Rajkumar whenever he visited Gajanoor.
The record before us reveals that Rajkumar did not want police protection and considered the
presence of the police a problem. He had visited Gajanoor on 22-6-2000 but no information in
this behalf had been intimated to the police authorities at Gajanoor; however, they had come to
know of his presence and had made security arrangements. No information had been received
in regard to the visit of Rajkumar to Gajanoor on 28-7-2000, and they had not learnt of it until
after the kidnap.
4. At the time of the kidnapping, Veerappan handed over to Rajkumar’s wife an audio
cassette to be delivered to the Chief Minister of the State of Karnataka. The audio cassette
required that he send an emissary to Veerappan. On 31-7-2000 the Chief Ministers of the States
of Karnataka and Tamil Nadu met in Chennai and decided to send as an emissary one Gopal,
he having served as an emissary when, on 12-7-1997, Veerappan had kidnapped nine forest
officers of the State of Karnataka and he had obtained their release thereafter. On 1-8-2000
Gopal left on his first mission to meet Veerappan in the forest along with two members of his
staff and a videographer. On 5-8-2000 Gopal sent an audio cassette to Chennai which, in the
voices of Veerappan and an associate, set out ten demands for the release of Rajkumar. On the
next day, that is, 6-8-2000, the Chief Ministers of the States of Karnataka and Tamil Nadu met
in Chennai to discuss the demands and their responses were made public at a press conference
held on that very day.
5. The ten demands and the responses thereto, as released to the press, are as follows:
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“Demand:
1. Permanent solution for the Cauvery water issue and implementation of the interim
orders of the Cauvery Tribunal.
Response:
For implementation of the interim orders, the Cauvery River Water Authority has been
set up under the chairmanship of the Prime Minister.
Demand:
2. Adequate compensation for Tamil victims of 1991 riots.
Response:
Karnataka has constituted the Cauvery Riots Relief Authority as directed by the
Supreme Court. About 10,000 claims have been received. The time-limit for completion
of the work has been extended up to 31-5-2001.
Demand:
3. Karnataka Government should accept Tamil as additional language of
administration.
Response:
As per the GOI Instructions, Karnataka has issued orders on 20-5-1999 that where
linguistic minorities constitute more than 15 per cent of the population, Government
notices, Orders and rules shall be issued in the language of the minorities as well.
Demand:
4. Unveiling of Tiruvalluvar statue at Bangalore.
Response:
Statues of Tiruvalluvar and Sarvajna will be installed and unveiled at Bangalore and
Chennai respectively with the participation of both the Chief Ministers.
Demand:
5. Vacation of stay issued by High Court against Justice Sathasivam Commission to
inquire into the atrocities by the task forces of the two States. Compensation for victims
and punishment for those held guilty by the Commission.
Response:
Karnataka Government will take steps to have the stay vacated.
Demand:
6. Innocent persons languishing in Karnataka Jails should be released.
Response:
TADA charges will be dropped immediately facilitating release of the prisoners.
Demand:
7. Compensation for the families of nine dalits killed in Karnataka.
Response:
Will be considered favourably after collecting particulars.
Demand:
8. Minimum procurement price of Rs 15 per kg for tea leaves grown in the Nilgiris.
Response:
A series of steps taken by the Central and the State Governments has already brought
about substantial increase in the price of tea leaves from Rs 4.50 to Rs 9.50.
Demand:
9. Five persons now in Tamil Nadu prisons should be released.
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Response:
Will be considered favourably.
Demand:
10. Minimum daily wage of Rs 150 for coffee and tea estate workers in Tamil Nadu
and Karnataka.
Response:
Estate workers in Tamil Nadu get a minimum wage of Rs 74.62, inclusive of various
allowances the wages add up to Rs 139 per day. Further increase through negotiations
would also be considered.”
6. On 11-8-2000 Gopal returned to Chennai with a written message and a video cassette
that contained an elaboration of two earlier demands and two new demands. The elaboration
related to the release of prisoners in the State of Karnataka, which was reiterated, and the
payment of compensation based on the Sathasivam Commission Report. The new demands and
the responses thereto were as follows:
Demand:
1. Tamil should be the compulsory medium of instruction till Standard 10 in Tamil
Nadu. Tamil should be declared an official language.
Response:
The Government move to make Tamil the medium of instruction till Standard 5 has
been stayed by the High Court and an appeal has been preferred in the Supreme Court.
Demand:
2. Compensation of Rs 10 lakhs each for innocent rape victims of Vachathi and
Chinnampathi in Tamil Nadu.
Response:
Compensation has already been paid on rates determined by court/commission.”
7. On 10-8-2000 an application was filed by the Special Public Prosecutor under the
provisions of Section 321 of the Criminal Procedure Code in fourteen cases (Special Cases Nos.
44, 63, 66 and 67 of 1994, 119 of 1995, 11,12, 13 and 14 of 1997, 3,19, 20 and 21 of 1998 and
79 of 1999) being heard by the Designated Court at Mysore. The cases were filed under the
provisions of the Terrorist and Disruptive Activities (Prevention) Act and other penal
enactments against Veerappan and a large number of his alleged associates. The application
needs to be reproduced in extenso:
It is submitted by the Special Public Prosecutor as follows:
A charge-sheet has been filed against the accused for the offences punishable under
Sections 143, 147, 148, 341, 342, 120-B, 326, 307, 302, 396 read with 149 IPC. And under
Sections 3, 4 and 5 of the Indian Explosives Act, and under Sections 3 and 25 of the Arms
Act, and also for the offences punishable under Sections 3, 4 and 5 of the TADA Act,
alleging that on the afternoon of 14-8-1992 Veerappan along with his associates attacked
the then Superintendent of Police, Mysore District, Shri Harikrishna, and the then SI of
Police of M.M. Hills, Shri Shakeel Ahamed and other police personnel who had been there
to nab Veerappan on the information furnished by the informant Kamala Naika, who also
died in the incident, and had also resulted in the killing of six police personnel and injuring
others and damaging the vehicles and also removing of the weapons and the wireless set
belonging to the Police Department.
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There are in all 166 accused persons and out of which 30 accused are in custody and 48
accused are on bail.
It is submitted by the Prosecutor that the accused who are on bail have not repeated the
offences and they have also not involved themselves in any similar offences and terrorist
activity have not been noticed recently in the area.
It is submitted by the Prosecutor that in order to restore the peace and normalcy in the
border area and among the people living in the border area and to maintain peace
among the public in general and inhabitants of the particular village, the Prosecutor
has decided to withdraw from the prosecution the charges under the offences of the
provision punishable under Sections 3, 4 and 5 of TADA.
It is submitted further by the Prosecutor that the trial regarding other offences are being
continued and the charges under the Arms Act and the Explosive Substances Act, to
certain extent cover the provisions of Sections 3 and 4 of TADA. Therefore, no
injustice would be caused if the Prosecutor withdraws the charges for the offences
punishable under Sections 3, 4 and 5 of the TADA Act.
It is further submitted by the Prosecutor that as a matter of policy, since the Central
Government has already withdrawn the Central enactment, no purpose would be
served immediately by the prosecution for the offences punishable under Sections 3, 4
and 5 of the TADA Act.
It is submitted by the Prosecutor that in the larger interest of the State and in order to
avoid any unpleasant situation in the border area, it is necessary to withdraw from
prosecution of the charges under Sections 3, 4 and 5 of the TADA Act.
It is submitted by the Prosecutor that no injustice would be caused to the State by
withdrawing from the prosecution, the offences punishable under Sections 3, 4 and 5
of the TADA Act.
Therefore, it is submitted by the Prosecutor that the Hon’ble Court be pleased to accord
consent to the Prosecutor to withdraw the charges for the offences punishable under
Sections 3, 4 and 5 of the TADA Act, against the accused and the case may be
withdrawn from the Designated Court and be transferred to the regular Sessions Court
for the continuance of the trial for the other offences in the interest of justice.”
8. The appellant in Criminal Appeals Nos. 741-43 of 2000 before us opposed the Special
Public Prosecutor’s application. He is the father of Shakeel Ahamed who, as the application
recites, had, allegedly, been killed by Veerappan and his associates. The appellant’s statement
of opposition referred to the abduction of Rajkumar and alleged that, consequent thereupon, the
Government of the State of Karnataka had yielded to the demands of Veerappan and had issued
notifications that it would withdraw all cases against Veerappan and his associates, and this had
been widely publicised by the media. The statement of opposition submitted that no cogent
reasons had been given for the decision to drop the TADA cases. It submitted that it was the
duty of the Special Public Prosecutor to inform the court of the reasons prompting him to
withdraw the prosecution and of the court to apprise itself of these reasons. The Special Public
Prosecutor rejoined to the statement of opposition by contending that all cases against
Veerappan and his associates were not being withdrawn, and they would be prosecuted. He,
therefore, denied the submission in the statement of opposition that the Government of the State
of Karnataka had yielded to blackmail by Veerappan.
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9. The Special Public Prosecutor’s application was made when the trial of the cases to
which it related was in progress and the evidence of 51 witnesses had been recorded. The trial
had been going on until 30-7-2000, on the night of which Rajkumar was abducted.
10. The Principal District and Sessions Judge, Mysore, was the Special Judge designated
for the trial of TADA offences. (He is now referred to as “the learned Judge”.) On 19-8-2000
the learned Judge passed on the Special Public Prosecutor’s application the order that is
impugned in these appeals. He set out in paras 2 to 6 the details of the cases before him, thus:
2. The Special Cases Nos. 44 of 1994, 11 of 1997 and 3 of 1998 arise out of a charge-sheet
in Crime No. 70 of 1992 of Ramapura Police Station against Veerappan and others for
offences under Sections 143 147, 148, 341, 342, 120-B, 326, 307, 302, 396 read with
Section 149 IPC, Sections 3, 4 and 5 of the Indian Explosives Act, Sections 3 and 25 of the
Arms Act and also under Sections 3, 4 and 5 of the Terrorist and Disruptive Activities
(Prevention) Act, alleging that on the afternoon of 14-8-1992, Veerappan and his associates
had attacked the then Superintendent of Police, Mysore, Shri Harikrishna and the then SubInspector of Police Shri Shakeel Ahamed and other police personnels, who had been there
to nab Veerappan and in the encounter, six police personnel were killed and many of them
were injured and vehicles were damaged and the weapons and wireless set belonging to
the Police Department were taken away. The charge-sheet had been laid against 168
persons, of them 30 accused are in custody and 45 are on bail and rest of them are shown
as absconding.
3. The Special Cases Nos. 63 of 1994, 13 of 1997 and 20 of 1998 arise out of a chargesheet filed in Crime No. 41 of 1992 of Ramapura Police Station against Veerappan and 162
others alleging that on the night of 19/20-5-1992, the accused had attacked Rampura Police
Station and caused the death of five police personnel and caused injuries to other police
staff, thereby the accused are said to have committed offences punishable under Sections
302, 307, 324, 326, 396 read with Section 149 IPC, Sections 3 and 25 of the Indian Arms
Act, Sections 3, 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act. Of the
said accused, 46 accused are on bail and 30 accused are in custody and rest of them have
been shown to be absconding.
4. The Special Cases Nos. 66 of 1994, 14 of 1997 and 21 of 1998 arise out of a chargesheet submitted by M.M. Hills Police in Crl. No. 12 of 1993 alleging that the accused had
attacked police personnel on 24-5-1993 near Rangaswamy Voddu on M.M Hills-Talabetta
Road, near 18/28 S: Curve and in the attack the Superintendent of Police Shri Gopal Hosur
and his driver Ravi were injured and six police personnel were killed and four police
personnel were injured and thereby the accused are said to have committed offences
punishable under Sections 143, 148, 120-B, 341, 353, 395, 302, 109, 114 read with Section
149 IPC, Sections 3, 4 and 5 of the Indian Explosives Act, Sections 3 and 25 of the Indian
Arms Act and also under Sections 3, 4 and 5 of the Terrorist and Disruptive Activities
(Prevention) Act. The charge-sheet has been submitted against 98 accused persons. Of
them, 7 accused are on bail, 26 accused are in custody and others are shown to be
absconding.
5. The Special Cases Nos. 67 of 1994, 12 of 1997 and 19 of 1998 arise out of a chargesheet submitted by M.M. Hills Police against 143 accused persons alleging that on 9-4-
1993 at Sorekayee Madu the accused had attacked and killed 22 persons belonging to both
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the Police and Forest Department and their informants by planting bombs in the forest area
of Palar and thereby the accused are said to have committed offences punishable under
Sections 143, 147, 148, 341, 342, 120-B, 324, 326, 307, 302 and 396 read with Section 149
IPC, Sections 3 and 25 of the Arms Act, Sections 3, 4 and 5 of the Indian Explosives
Substances Act and also Sections 3, 4 and 5 of the Terrorist and Disruptive Activities
(Prevention) Act. Of the 143 accused persons, 17 accused are on bail, 33 accused are in
custody and rest of them are shown to be absconding.
6. The Special Cases Nos. 119 of 1995 and 79 of 1999 arise out of a charge-sheet submitted
by Ramapura Police in Crl No. 5 of 1994 against 17 accused persons alleging that on 17-
1-1994 at Changadi Forest, the accused had attacked staff of special task force and
informants of the Police and Forest Department and killing one police personnel and one
gunman and thereby the accused are said to have committed offences under Sections 143,
147, 148, 326, 307, 302 read with Section 149 IPC, Sections 3 and 25 of the Indian Arms
Act and also Sections 3, 4 and 5 of the Terrorist and Disruptive Activities (Prevention) Act.
The learned Judge then noted that the trial had begun and many material witnesses had been
examined. He referred to the pleadings in the application before him and the arguments of the
Special Public Prosecutor; among them, “there is no terrorist activity in the area. The instant
application has been filed with an intention to maintain peace and tranquillity. He has not been
directed by the State. It is the act of the Public Prosecutor only”. The learned Judge opined that
the present appellant could not be said to be an aggrieved party who could be permitted to raise
objections to the application. He then dealt with precedents relevant to the application and
concluded that his power was limited. It was only a supervisory power over the action of the
Special Public Prosecutor. The function of the court was to prevent abuse. Its duty was to see,
in furtherance of justice, that the permission was not sought on grounds extraneous to the
interest of justice. Permission to withdraw could only be granted if the court was satisfied on
the materials placed before it that its grant subserved the administration of justice and it was
not being sought covertly, with an ulterior purpose unconnected with vindication of the law,
which the executive organs were duty-bound to further and maintain. The learned Judge stated
that it was seen from the material on record that terrorist activity had not been noticed recently
in the area. The learned Judge did not accept the contention of the Special Public Prosecutor
that, since the TADA Act had been withdrawn, the permission should be granted. The learned
Judge noted that it had been mentioned in the statement of objections that Rajkumar had been
abducted by the prime accused before him; as such, he said that he would have to take notice
of this aspect. He mentioned that the trial of one of the special cases involved in the application
had been posted for hearing on 30-7-2000 but, on account of the changed situation, he had felt
“that there was a likelihood of danger to the person of accused, who are in custody, if they are
insisted to be produced before the court on the said hearing dates”. The learned Judge stated
that he was satisfied that the Special Public Prosecutor had applied his mind in filing the
application. In view of the grounds and circumstances mentioned by the Special Public
Prosecutor, he was satisfied, on the materials placed before him,
that the grant of permission to withdraw subserves the administration of justice and the
permission had not been sought covertly with an ulterior purpose unconnected with the
vindication of law, which the executive organs are duty-bound to further and maintain.
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The learned Judge observed that things could have been viewed from a different angle
altogether if the Special Public Prosecutor had sought for blanket withdrawal of the cases
against the accused; but this was not the situation in the case on hand for the case against the
accused for other offences would be proceeded with. Accordingly, the learned Judge allowed
the application, according consent to withdrawal of the charges relating to offences punishable
under the TADA Act against the accused. He ordered, “the accused in custody and on bail,
facing trial for offences under the TADA Act stand acquitted/discharged as the case may be”.
He transferred the cases to the Court of the Principal District and Sessions Judge, Mysore for
disposal in accordance with law of all charges other than under the TADA Act.
11. The accused who were in custody and were discharged by the Special Court in respect
of TADA charges against them immediately filed an application for bail before the Court of
District and Sessions Judge, Mysore. On 28-8-2000, the learned Judge, now as Principal District
and Sessions Judge, noted in his order that learned counsel for the present appellant had
informed him that the appellant had filed a petition for special leave to appeal against the order
on the Special Public Prosecutor’s application which was to be taken up for hearing on the next
day and that learned counsel had prayed that orders on the bail petition should not be
pronounced until thereafter. The Special Public Prosecutor had submitted in reply that the
special leave petition related only to the withdrawal of charges under the TADA Act and the
passing of orders on the bail petitions would not be affected thereby. The learned Judge found
that no order of stay had been passed by this Court, and, therefore, it overruled the prayer and
passed orders on the bail petitions. In the course thereof, the learned Judge referred to “the
urgency of the matter”. The learned Judge found force in the contention on behalf of the accused
that there had been a change in the circumstances in view of the fact that the Designated Court
had permitted the State to withdraw TADA charges against them. Having carefully gone
through the material on record and the nature of the accusations made against the accused and
the evidence projected, it was the learned Judge’s opinion that
there is no prima facie case made out against the accused for the said offence. Having
regard to the facts and circumstances, the social status of the accused and other relevant
factors, the court is of the opinion that the bail petition will have to be allowed on the
following terms in the ends of justice.
The accused were directed to be released on bail on each of them executing a bond for
Rs 10,000 with one surety for the like sum or, in the alternative, on each furnishing cash security
of Rs 20,000, on the conditions that they would appear before the court regularly, as and
when required, they would not tamper with the prosecution witnesses and they would not
commit any other offence.
12. The order dated 19-8-2000 on the Special Public Prosecutor’s application is impugned
in the appeals before us.
13. On 14-8-2000 the Government of the State of Tamil Nadu issued a Government Order
directing that charges against one Radio Venkatesan in respect of two cases registered against
him under the provisions of the TADA (Prevention) Act be withdrawn “in the public interest”.
The Inspector General of Police Intelligence, Chennai was directed to take necessary action
accordingly. On 16-8-2000 the Special Public Prosecutor before the Designated Court (TADA
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Act) at Chennai made two applications to that court under the provisions of Section 321 of the
Criminal Procedure Code. They stated that Radio Venkatesan was charged before the
Designated Court in cases arising under the TADA Act, the Explosive Substances Act, the
Indian Penal Code and the Arms Act and the cases were pending for framing charges. The
applications added,
it is further submitted that after perusal of records I am satisfied that under the new change
of circumstances and also in the public interest I hereby request this Hon’ble Court to
permit me to withdraw the charges under Sections 3(1), 3(3), 4(1) and 5 of the Tamil Nadu
Terrorist and Disruptive Activities Preventive Act, 1987 against the accused Venkatesan
@ Radio Venkatesan and thus render justice.
A copy of the Government Order of 14-8-2000 was submitted with the applications. On 16-8-
2000, the Designated Court, Chennai passed an order on the applications. It noted:
The Government has passed an order stating that TADA offences against the accused
Venkatesan @ Radio Venkatesan is withdrawn in the public interest. There is no mention
in the Government Order for withdrawal of cases against the said accused under IPC
offences and other laws.
The court referred to the applications before it and the provisions of Section 321 which
permitted withdrawal from prosecution of one or more offences when the accused was charged
with more than one offence. It then stated:
So far as this case is concerned the Government has passed the order to withdraw the
TADA case alone as against the accused Venkatesan @ Radio Venkatesan, who is involved
in Crl. No. 50 of 1993 and Crl. No. 346 of 1993. As this application has been filed by the
learned Special Public Prosecutor on the basis of the Government Order referred above,
permission is granted to withdraw the TADA case against the accused Venkatesan @ Radio
Venkatesan and he has been discharged from the various offences of the TADA Act.
The applications were allowed accordingly.
14. Insofar as four detenus under the National Security Act were concerned, the
Government of the State of Tamil Nadu passed orders on 14-8-2000. As an example, that
relating to Sathyamoorthy is reproduced below:
1. Kannada film actor Dr Rajkumar and few others were kidnapped by sandalwood brigand
Veerappan and his men in the night of 30-7-2000. He has made 10 demands to release them
from hostage. One of the demands is to release 5 prisoners from the various prisons in
Tamil Nadu. Thiru Sathyamoorthy @ Sathya @ Kandasamy @ Neelan, is one among the
NSA detenus mentioned above. A tense situation is prevailing due to the kidnapping of
Kannada film actor Dr Rajkumar. There is an apprehension that in case any harm is caused
to him, there may be a backlash on Tamils in Karnataka. In order to avoid such a situation
and in the public interest, the Government has decided to revoke the order of detention
passed by the Collector and District Magistrate, Erode District, in his proceedings first read
above, under NSA against Thiru Sathyamoorthy @ Sathya @Kandasamy @ Neelan and to
release him from detention under NSA.
2. NOW THEREFORE in exercise of the powers conferred by clause (a) of sub-section (1)
of Section 14 of the National Security Act, 1980, the Governor of Tamil Nadu hereby
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revokes the order of detention made by the District Collector and District Magistrate, Erode
District, against Thiru Sathyamoorthy @ Sathya @ Kandasamy @ Neelan, s/o Thiru
Nataraja Muthiraiyar, in the proceedings first read above and direct that the said Thiru
Sathyamoorthy @ Sathya @ Kandasamy @ Neelan, be released from detention under the
said Act forthwith. This order applies only in respect of detention under the National
Security Act.
15. The aforesaid orders of the Government of the State of Tamil Nadu and the order of the
Designated Court, Chennai are challenged in the two public interest petitions before us.
16. In the appeals aforementioned, this Court passed an order on 29-8-2000 directing that
none of the respondents accused therein should be released, on bail or otherwise, pending
further orders. Observing the spirit of this order, those who are the beneficiaries of the aforesaid
orders of the Government and Designated Court of the State of Tamil Nadu have also not been
released.
18. The law as it stands today in relation to applications under Section 321 is laid down by
the majority judgment delivered by Khalid, J. in the Constitution Bench decision of this Court
in Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288]. It is held therein that when an
application under Section 321 is made, it is not necessary for the court to assess the evidence
to discover whether the case would end in conviction or acquittal. What 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, after considering the facts of the case, has
to see whether the application suffers from such improprieties or illegalities as would cause
manifest injustice if consent was given. When the Public Prosecutor makes an application for
withdrawal after taking into consideration all the material before him, the court must exercise
its judicial discretion by considering such material and, on such consideration, must either give
consent or decline consent. The section should not be construed to mean that the court has to
give a detailed reasoned order when it gives consent. If, on a reading of the order giving consent,
a higher court is satisfied that such consent was given on an overall consideration of the material
available, the order giving consent has necessarily to be upheld. Section 321 contemplates
consent by the court in a supervisory and not an adjudicatory manner. What the court must
ensure is that the application for withdrawal has been properly made, after independent
consideration by the Public Prosecutor and in furtherance of public interest. Section 321 enables
the Public Prosecutor to withdraw from the prosecution of any accused. The discretion
exercisable under Section 321 is fettered only by a consent from the court on a consideration
of the material before it. What is necessary to satisfy the section is to see that the Public
Prosecutor has acted in good faith and the exercise of discretion by him is proper.
19. The law, therefore, is that though the Government may have ordered, directed or asked
a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his
mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest
will be served by his withdrawal from the prosecution. In turn, the court has to be satisfied,
after considering all that material, that the Public Prosecutor has applied his mind independently
thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal
from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart
the process of law or cause manifest injustice.
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20. It must follow that the application under Section 321 must aver that the Public
Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his
withdrawal from the prosecution is in the public interest and it will not stifle or thwart the
process of law or cause injustice. The material that the Public Prosecutor has considered must
be set out, briefly but concisely, in the application or in an affidavit annexed to the application
or, in a given case, placed before the court, with its permission, in a sealed envelope. The court
has to give an informed consent. It must be satisfied that this material can reasonably lead to
the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the
public interest; but it is not for the court to weigh the material. The court must be satisfied that
the Public Prosecutor has considered the material and, in good faith, reached the conclusion
that his withdrawal from the prosecution will serve the public interest. The court must also
consider whether the grant of consent may thwart or stifle the course of law or result in manifest
injustice. If, upon such consideration, the court accords consent, it must make such order on the
application as will indicate to a higher court that it has done all that the law requires it to do
before granting consent.
21. The applications under Section 321 made by the Special Public Prosecutor before the
Designated Court at Mysore submitted that the Special Public Prosecutor had decided to
withdraw from prosecution the charges under the TADA Act “in order to restore the peace and
normalcy in the border area and among the people living in the border area and to maintain
peace among the public in general and inhabitants of the particular village” and that such
withdrawal from prosecution was necessary “in the larger interest of the State and in order to
avoid any unpleasant situation in the border area”. The applications did not state why the
Special Public Prosecutor apprehended a disturbance of the peace and normalcy of “the border
area” or the “particular village”, nor was any material in this behalf, or a summary thereof, set
out. There was, therefore, no basis laid in the applications upon which the learned Judge
presiding over the Designated Court could conclude that the Special Public Prosecutor had
applied his mind to the relevant material and exercised discretion in good faith and that the
withdrawal would not stifle or thwart the course of the law and cause manifest injustice. The
order of the learned Judge noted that the statement of opposition filed by the present appellant
averred that Rajkumar had been abducted by Veerappan and it said that he would have to take
notice of this aspect. The order did not note that the statement of opposition also said that,
consequent upon such abduction, the State of Karnataka had yielded to the demands made by
Veerappan and had issued notifications that it would withdraw all cases against Veerappan and
his associates. No query in this regard was made by the learned Judge with the Special Public
Prosecutor. The learned Judge said that he was satisfied on the material placed before him that
the grant of permission to withdraw subserved the administration of justice and it had not been
sought covertly, but he did not state what those materials were. It is not the case of anybody
that any materials were placed before the learned Judge upon the basis of which he could have
been satisfied that the Special Public Prosecutor had applied his mind thereto and had reached,
in good faith, the conclusion that the withdrawal he sought was necessary for the reasons he
pleaded. The learned Judge placed on record, as he called it, the decision of this Court in the
case of Sheonandan Paswan, referred to above, but he did not appreciate what it required of a
Public Prosecutor and of a court in regard of Section 321, and he did not follow it. The order
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granting consent on the Special Public Prosecutor’s application, therefore, does not meet the
requirements of Section 321 and is bad in law.
22. The applications under Section 321 filed before the Designated Court at Chennai sought
consent to the withdrawal from TADA prosecution against Venkatesan @ Radio Venkatesan
after “perusal of records” by the Special Public Prosecutor, and they submitted that “under the
new change of circumstances and also in the public interest the permission was sought”. What
the record was that the Special Public Prosecutor had perused was not set out nor was it annexed
nor a summary thereof recited. What the changed circumstances were was not set out. The order
on the applications was founded only upon the relevant Government Order, thus:
So far as this case is concerned the Government has passed order to withdraw the TADA
case alone as against the accused Venkatesan @ Radio Venkatesan, who is involved in Crl.
Nos. 50 and 346 of 1993. As this application has been filed by the learned Special Public
Prosecutor on the basis of the Government Order referred above, permission is granted to
withdraw the TADA case against the accused Venkatesan @ Radio Venkatesan….
The order, therefore, was not passed after meeting the requirements of Section 321, and it is
bad in law.
23. It was submitted by the learned Solicitor General, appearing for the State of Karnataka,
that we, sitting in appeal, should consider the grant of consent under Section 321 based upon
the state of knowledge of the Special Public Prosecutor on the date on which he made the
application before the Designated Court at Mysore. In this behalf, two affidavits, both dated
19-10-2000, were filed. One affidavit is made by the Minister of Law and Parliamentary Affairs
of the State of Karnataka and the other by the Special Public Prosecutor.
24. The affidavit of the Minister for Law states:
2. That I have been party to most of the decisions which have been taken in this matter,
which has culminated in the issuance of the Government Order dated 8-8-2000 requesting
the Special Public Prosecutor, in charge of the TADA cases pending before the Designated
Court at Mysore against Veerappan and his associates, to withdraw the charges under
TADA.
3. I also held a meeting with the Special Public Prosecutor in charge of the cases, on 5-8-
2000 in my office in Vidhan Soudha, Bangalore. The discussions held during the meeting
and the persons present have already been stated in the affidavit of Shri Ashwini Kumar
Joshi which I confirm.
4. Prior to this meeting, the problems arising out of the abduction of Dr Rajkumar, the
options available to the State Government to deal with this crisis and the responses of the
Government publicly announced to Veerappan’s demands, have all been discussed at
various levels including in informal meetings held between me, the Home Minister and the
Chief Minister as well as the Cabinet meetings which have been held frequently during the
period 1-8-2000 to 8-8-2000.
5. I submit that one option, which the Government had always considered relates to the use
of force for the release of Dr Rajkumar. While considering this option and evaluation of
the risk factors, as advised by the senior officials at the level of Home Secretary, and the
Chief Secretary as well as our own experience in the past were also considered. After
detailed discussions on more that one occasion, the option of use of force in the present
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circumstances and as at present advised, was ruled out in favour of acceding to some of his
demands.
6. The demands made by Veerappan were discussed informally at various levels of the
Secretaries, at the level of the Ministers and also informally in the Cabinet.
7. I submit that the Government made public its response to Veerappan’s demands in which
it indicated, inter alia, that only TADA charges (and not all cases) against the 51 accused
would be withdrawn.
8. I submit that the matter of withdrawal of TADA charges had been informally discussed
in the Cabinet on 3rd August and the final decision taken between 4-8-2000/5-8-2000
between myself, the Home Minister and the Chief Minister of Karnataka.
9. I respectfully state that it was after considering the options and the likely repercussions
in future of succumbing to his demands (i.e. the signals sent by agreeing to such demands,
and the fact that it may encourage further such acts) and after weighing it against the
problem apprehended if any harm were to be caused to Dr Rajkumar, that this decision to
withdraw TADA charges was taken.
10. In the informal Cabinet meeting held on 3-8-2000, the Cabinet had authorised the Chief
Minister, the Home Minister and myself as well as the Chief Secretary to take a final
decision in this matter and pursuant to this, we took a final decision between 4-8-2000/5-
8-2000.”
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 TADA charges against Veerappan
and his associates, including the respondents-accused. 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 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 respondents-accused?
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 the Karnataka Jails,
was there any material to suggest that Veerappan would be satisfied with the release of
only the respondents-accused?
7. In any event, was there any material to suggest that after the respondents-accused had
secured their discharge from TADA charges and bail on the other charges Veerappan
would release Rajkumar?
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8. Given that the Government 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?
26. The affidavit of the Special Public Prosecutor states:
6. On 5-8-2000, I was called by the Office of the Hon’ble Law Minister for a meeting in
his chamber in Vidhan Soudha, Bangalore.
7. When I went to the meeting, the Special Secretary (Law) and the Director of
Prosecutions as well as the Additional Director General of Police (Intelligence) were
present. We discussed the matter relating to withdrawal of TADA charges against these 51
accused at considerable length for over 2 hours. In the course of the discussion, I recall that
I was informed, inter alia, that the negotiations had reached a point where it was felt that
withdrawal of TADA charges against these 51 accused would secure the release of Dr
Rajkumar. I was informed that the Government had intelligence reports and that if any
harm were to be caused to Dr Rajkumar, it would lead to problems between the two
linguistic communities in the State. I was informed that apprehending trouble, schools and
colleges had been declared closed immediately in the whole State and they were closed up
to 5-8-2000. I was informed of the incidents, which had occurred in Bangalore City on 31-
7-2000 as an aftermath of this incident of kidnapping also showed that the abduction was
being construed by the people as an issue between two communities. The character of the
incident showed that these people were ready to indulge in acts of violence. I was also
informed that acting on intelligence reports, the Government had taken steps to arrange for
deployment of central forces, such as the Rapid Action Force, Armed Reserve Police, and
Paramilitary Force from the neighbouring States and some steps had already been taken
and others were likely to be taken.
8. I was informed by the Hon’ble Law Minister that the Cabinet had also informally
discussed this matter in its urgent meeting held on 3-8-2000 and that a decision had been
taken to take appropriate steps and on that basis the Government would formally request
me to take appropriate steps to withdraw TADA charges.
9. On 8-8-2000 the GO issued by the Government along with its covering letter was duly
forwarded to me through the Law Department. A copy of the said GO and the connected
documents are collectively annexed hereto and marked as Annexure A.
10. Based on my understanding of the situation, which in turn, was based on the aforesaid
material, and the information which had been given to me which I believed to be true, I
decided that it would be in the interest of public peace and maintenance of law and order
in the State to withdraw the charges against the 51 TADA detenus.
11. I respectfully submit that the information which had been provided to me by the
Additional Director General of Police (Intelligence), the Hon’ble Law Minister and others
present in the meeting as well as my own knowledge of local events (being a resident of
Mysore for 27 years and having witnessed the problems which had resulted after the
Cauvery riots), I felt there was substance in the Government’s request that any such step
which could secure the release of Dr Rajkumar would be a step to protect public peace. I
felt that if withdrawal of TADA charges which would enable the accused to file necessary
bail applications and their consequent release on bail could preserve amity between the two
communities, it would outweigh the likely problems which would arise on the release of
these 51. In arriving at this decision that I was influenced by the fact that the 73 co-accused
who had already been enlarged on bail (by the court) had complied with the bail conditions
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which suggested that they had not gone back to their old ways. There were 12 women, 3
old persons of 70 years age and 3 persons aged between 55-60 amongst TADA accused. I
also considered the facts that they had been in the jail for six to seven years.
12. I was also informed in the course of the aforesaid meetings that in other districts also
some incidents have been reported. I believed the statement as I had no reason to doubt its
credibility. I have subsequently ascertained the particulars of the cases which are hereto
annexed and marked as Annexure C.
27. The affidavit of the Special Public Prosecutor reveals that he was “informed” that the
Government of the State of Karnataka had intelligence reports that if any harm were to be
caused to Rajkumar, it would lead to problems between two linguistic communities. Clearly,
he was not shown the intelligence reports. Throughout the affidavit the phrase “I was informed”
recurs. There is no statement therein which shows that the Special Public Prosecutor had the
opportunity of assessing the situation for himself by reading the primary material and deciding,
upon the basis thereof, whether he should exercise his discretion in favour of the withdrawal of
TADA charges. Acting upon the information, which he could not verify, the Special Public
Prosecutor could not be satisfied that such withdrawal was in the public interest and that it
would not thwart or stifle the process of the law or cause manifest injustice. The Special Public
Prosecutor, in fact, acted only upon the instructions of the Government of the State of
Karnataka. He, therefore, did not follow the requirement of the law that he be satisfied and the
consent he sought under Section 321 cannot be granted by this Court.
28. The affidavit of the Special Public Prosecutor speaks of “withdrawal of TADA charges
which would enable the accused to file necessary bail applications and their consequent release
on bail .…” It is, thus, clear that what was envisaged by the Government of the State of
Karnataka and the Special Public Prosecutor was a package which comprised of the withdrawal
of TADA charges against the respondents-accused and their release on bail on applications filed
by them. This indicates complicity with the respondents-accused. It will have been noticed that
stress was laid by the Special Public Prosecutor in his application under Section 321 on the fact
that the prosecutions against the respondents-accused on charges other than under the TADA
Act would continue, and this was noted in the order of the Designated Court. The Designated
Court was not told either in the application or thereafter that the Government of the State of
Karnataka and the Special Public Prosecutor had in mind that the respondents-accused would
file bail applications subsequent to the order under Section 321 which would not be opposed.
There can, in the circumstances, be little doubt that after their release on bail the respondentsaccused were not expected to attend the court to answer the remaining charges against them
and that the stress laid as aforesaid was intended to mislead the Designated Court. We deprecate
the conduct of the Government of the State of Karnataka and the Special Public Prosecutor in
this behalf. We deem it appropriate, in the facts and circumstances, to set aside the orders
granting bail to the respondents-accused.
29. Having set aside the order under Section 321 passed by the Designated Court at Chennai
in the matter of Radio Venkatesan, the Government of the State of Tamil Nadu cannot comply
with Veerappan’s demand to release the five prisoners from its jails. It is appropriate in the
circumstances to set aside the orders of the Government of the State of Tamil Nadu under the
National Security Act releasing the other four persons from detention.
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30. The questions that we have posed above were put to the learned counsel for the State
of Karnataka in the context of the State Government’s decision to concede to the demand of
Veerappan that prisoners in Karnataka Jails should be released. The answers do not satisfy us.
We do not find on the record, including that placed before us in sealed covers, material that
could give rise to a reasonable apprehension of such civil disturbances as justifies the decision
to drop TADA charges against Veerappan and his associates, including the respondentsaccused, and to release the latter on bail. There is nothing on the record which suggests that the
possibility of reprisals against the witnesses who have already deposed against the respondentsaccused or the effect on the morale of the law-enforcement agencies were considered before it
was decided to release the respondents-accused. There is also nothing to suggest that there was
reason to proceed upon the basis that Veerappan would release Rajkumar when his demands
were not being met in full. The Government of the State of Karnataka would appear to be
unaware that once the respondents-accused were discharged from TADA charges, the deal was
done; and that when they were released on bail they could not be detained further, whether or
not Rajkumar was released in exchange. While we cannot assert that conceding to Veerappan’s
demands was a ploy of the Government of the State of Karnataka to keep him out of the clutches
of the law, we do find that it acted in panic and haste and without thinking things through in
doing so. That this is so, is clear from the fact that the demands were conceded overnight and
also from the fact that the Government of the State of Karnataka did not ascertain the legal
position that it was not for it but for the court to decide upon the release of persons facing
criminal prosecutions.
31. What causes us the gravest disquiet is that when, not so very long back, as the record
shows, his gang had been considerably reduced, Veerappan was not pursued and apprehended
and now, as the statements in the affidavit filed on behalf of the State of Tamil Nadu show,
Veerappan is operating in the forest that has been his hideout for 10 years or more along with
secessionist Tamil elements. It seems to us certain that Veerappan will continue with his life of
crime and very likely that those crimes will have anti-national objectives.
32. The Government of the State of Tamil Nadu had been apprised that Rajkumar faced the
risk of being kidnapped by Veerappan when he visited his farmhouse at Gajanoor. It knew that
Rajkumar was unlikely to give advance intimation of his visits: he had visited Gajanoor for the
house-warming ceremony of his new farmhouse in June 2000 without prior notice. To put it
mildly, it would have been prudent, in the circumstances, to post round the clock at Rajkumar’s
farmhouse in Gajanoor one or two policemen who could inform their local station house of his
arrival there and thus ensure his safety.
33. The locus standi of the present appellant has not been contested before this Court. Had
it not been for his appeal, a miscarriage of justice would have become a fait accompli.
34. The respondents-accused may have individual grounds for challenging the continued
prosecution of TADA charges against them or for bail. They shall be free to adopt proceedings
in that regard, if so advised. Such proceedings shall be decided on their merits and nothing that
we have said in this judgment shall stand in the way.
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35. The appeals are allowed and the order under appeal, dated 19-8-2000, is set aside. The
order dated 28-8-2000 passed by the Principal District and Sessions Judge, Mysore granting
bail to the respondents-accused is also set aside.
36. Further, the order of the Designated Court at Chennai dated 16-8-2000 is set aside. The
orders of the Government of the State of Tamil Nadu passed on 14-8-2000 under the National
Security Act in respect of Sathyamoorthy and three others revoking the orders of their detention
under the National Security Act are also set aside. The writ petitions were made absolute
accordingly.
Y.K. SABHARWAL, J. (concurring) – I have gone through the elaborate and learned
judgment prepared by my brother Justice S.P. Bharucha. I respectfully agree that the orders
granting consent on the Special Public Prosecutor’s applications do not meet the requirements
of Section 321 of the Code of Criminal Procedure (for short, “CrPC”) and the orders are bad in
law. The questions raised in these matters have wide-ranging repercussions regarding the scope
of Section 321 Cr.P.C and what is required to be considered by the Special Public Prosecutor
before consent of court is sought under Section 321 to withdraw from the prosecution of any
person. I record these additional reasons for concurring with the decision arrived at by Justice
Bharucha and Justice Mohapatra.
38. The facts in detail have been set out in the judgment of Justice Bharucha and it is
unnecessary to repeat them except to briefly notice the broad, admitted and/or well-established
facts for appreciating the points involved. They are as under:
(A) Veerappan is a dreaded criminal and despite various attempts over a number of years
he could not be apprehended.
(B) Veerappan and his associates are alleged to be responsible for killing of a large number
of people (over 100) including police personnel, forest personnel and others besides being
responsible for causing injuries to a large number of people and loss of property to the tune
of crores of rupees.
(C) Veerappan and his gang members hatched a conspiracy to kill Superintendent of Police,
Mysore District, Shri Harikrishna and Sub-Inspector of Police of M.M. Hills Shri Shakeel
Ahamed and other police personnel who had been there to nab Veerappan with a view to
terrorise the police force and to put fear of death into the minds of policemen who were
performing duty in attempting to arrest the wanted persons. Various charges relating to
murder, ambush, attempt to overawe the Government of Karnataka, killing of elephants,
smuggling of sandalwood etc. from the forest, possession of arms and ammunition, opening
of fire on task force personnel, have been framed against accused who are said to be the
associates of Veerappan. Cases filed against them are under the provisions of Terrorist and
Disruptive Activities (Prevention) Act (TADA) and other penal provisions, i.e., Indian
Penal Code, Arms Act and Explosive Substances Act.
(D) From their source information police authorities had learnt that Veerappan intended to
kidnap Rajkumar during his visit to his farmhouse in Gajanoor. More than a year back,
Director General of Police of the State of Karnataka had informed the Inspector General of
Police of the State of Tamil Nadu requesting for adequate security arrangements being
made for Rajkumar whenever he visited the said farmhouse.
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(E) Rajkumar is a very popular film actor of Karnataka. In case any harm is caused to
Rajkumar, there may be backlash on Tamils in Karnataka and it may lead to problems
between the two linguistic communities in the States. The people may indulge in acts of
violence.
(F) On 30-7-2000, Veerappan abducted Rajkumar from his farmhouse along with three
others. As of today, Rajkumar and one Nagesh are still in Veerappan’s custody.
(G) No police protection or security was provided when Rajkumar visited the farmhouse.
(H) Soon after the abduction of Rajkumar and others, the two State Governments decided
to accept the demands of Veerappan to release those in respect of whom TADA charges
and detention orders under the National Security Act have been withdrawn. The decision
was taken in the meeting held on 4-8-2000/5-8-2000 between the Chief Ministers of the
two States.
(I) Applications under Section 321 Cr.P.C seeking consent of court to withdraw TADA
charges were filed to facilitate ultimately the release of accused persons from judicial
custody so as to meet Veerappan’s demand. The arrangement was that once TADA charges
are withdrawn, the accused in judicial custody will move bail applications in cases of
offences under IPC and other penal enactments. The Public Prosecutor will concede and
will not oppose the grant of bail. The court will grant the bail and, thus, accused will come
out from judicial custody and, thus, this demand of Veerappan would be met.
39. Keeping in view the aforesaid facts, let me now revert to application filed under Section
321 Cr.P.C.
40. The application filed under Section 321 has been reproduced in extenso in the judgment
of Justice Bharucha. The application makes no reference whatsoever to any such arrangement
as mentioned at (I) above. The main ground stated in the application is that in order to restore
the peace and normalcy in the border area and among the people living in the border area and
to maintain peace among the public in general and inhabitants of the particular village, the
Prosecutor has decided to withdraw from the prosecution against the accused charged of the
offences punishable under Sections 3, 4 and 5 of TADA. Abdul Karim, father of Shakeel
Ahamed, opposed the application on various grounds, inter alia, stating in the objection petition
that if the cases against the hard core criminals are withdrawn or if they are released on bail that
may expose the families of the victims to terror unleashed by the TADA detenus, who may
unleash terror and jeopardise public order and cause detriment to the general public interest. In
reply to the said objections, instead of admitting that TADA charges are being withdrawn to
facilitate grant of bail, the stand taken by the Public Prosecutor, inter alia, is that Veerappan
and his associates will not be let out freely as they will be facing prosecution for other offences
and, therefore, the submission that the State Government has yielded to blackmail tactics of
outlaw Veerappan is not correct.
41. The Public Prosecutor has to be straight, forthright and honest and has to admit the
arrangement and inform the court that the real arrangement is to ultimately facilitate the release
of these accused from judicial custody by not opposing the bail applications after the
withdrawal of TADA charges. The arrangement as set out above has neither been disputed nor
is it capable of being disputed. It is well established that the real purpose for withdrawal of
TADA charges was to facilitate the grant of bail to the accused. In such circumstances, why the
camouflage? Why is it not so stated in the application filed under Section 321? In fact, it is a
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deceit. These are the questions for which there is no plausible answer. No court of law can be
a party to such a camouflage and deceit in judicial proceedings. The answer to these basic
questions cannot be that the Judge knew about it from the very nature of the case. Under these
circumstances, it cannot be said that the application was made in good faith.
42. The satisfaction for moving an application under Section 321 Cr.P.C has to be of the
Public Prosecutor which in the nature of the case in hand has to be based on the material
provided by the State. The nature of the power to be exercised by the Court while deciding
application under Section 321 is delineated by the decision of this Court in Sheonandan
Paswan v. State of Bihar. This decision holds that grant of consent by the court is not a matter
of course and when such an application is filed by the Public Prosecutor after taking into
consideration the material before him, the court exercises its judicial discretion by considering
such material and on such consideration either gives consent or declines consent. It also lays
down that 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.
43. True, the power of the court under Section 321 is supervisory but that does not mean
that while exercising that power, the consent has to be granted on mere asking. 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.
44. Besides the eight questions noticed in the main judgment, the question and aspect of
association of Veerappan with those having secessionist aspirations were also not considered.
Further, though it may have been considered as to what happened on 1st August, immediately
after the abduction of Rajkumar, but what does not seem to have been considered is that those
were spontaneous outbursts and the authorities may have been taken unaware but what would
be the ground realities when the law-enforcing agencies have sufficient time to prepare for any
apprehended contingency.
45. The application and order under Section 321 is a result of panic reaction by overzealous
persons without proper understanding of the problem and consideration of the relevant material,
though they may not have any personal motive. It does not appear that anybody considered that
if democratically-elected governments give an impression to the citizens of this country of
being lawbreakers, would it not breed contempt for law; would it not invite citizens to become
a law onto themselves. It may lead to anarchy. The Governments have to consider and balance
the choice between maintenance of law and order and anarchy. It does not appear that anyone
considered this aspect. It yielded to the pressure tactics of those who according to the
Government are out to terrorise the police force and to overawe the elected Governments. It
does not appear that anyone considered that with their action people may lose faith in the
democratic process, when they see public authority flouted and the helplessness of the
Government. The aspect of paralysing and discrediting the democratic authority had to be taken
into consideration. It is the executive function to decide in the public interest to withdraw from
prosecution as claimed, but it is also for the Government to maintain its existence. The selfpreservation 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
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take a conscious decision. In the present case, without consideration of these aspects the
decision was taken to withdraw TADA charges. It is evident from material now placed on
record before this Court that Veerappan was acting in consultation with secessionist
organisations/groups which had the object of liberation of Tamil from India. There is no serious
challenge to this aspect. None of the aforesaid aspects were considered by the Government or
the Public Prosecutors before having recourse to Section 321 Cr.P.C.
46. With these additional reasons, I am in complete respectful agreement with the
conclusion and opinion of my senior colleague Hon’ble Mr Justice S.P. Bharucha.
