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Supreme Court of India
Shri Abdul Karim vs The State Of Karnataka & Ors on 7 November, 2000
Author: Y Sabharwal
Bench: Y.K. Sabharwal, J.
           PETITIONER:
SHRI ABDUL KARIM

	Vs.

RESPONDENT:
THE STATE OF KARNATAKA & ORS.

DATE OF JUDGMENT:	07/11/2000

BENCH:
Y.K. Sabharwal, J.




JUDGMENT:

Y.K.SABHARWAL,J.

L…I…T…….T…….T…….T…….T…….T…….T..J
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, `Cr.P.C.’) 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 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 decision
arrived at by Justice Bharucha and Justice Mohapatra.

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 could not be apprehended.@@
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(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 MM Hills Shri
Shakeel Ahmed and other Police personnel who had been 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 Sandal wood 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 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 farm
house.

(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 30th July, 2000, Veerappan abducted Rajkumar from
his farm house along with three others. As of today,
Rajkumar and one Nag esh are still in Veerappan’s custody.

(G) No Police protection or security was provided when
Rajkumar visited the farm house.

(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 4/5th August, 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@@
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facilitate ultimately the release of accused persons from@@
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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.

Keeping in view the aforesaid facts, let me now revert
to application filed under Section 321 Cr.P.C. The@@
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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 at general and inhabitants of the particular village,
the Prosecutor has decided to withdraw from the prosecution
the accused charged of the offences punishable under
Sections 3, 4 and 5 of the TADA. Abdul Karim, father of
Shakeel Ahmed, opposed the application on various grounds,
inter alia, stating in the objection petition that if the
cases against the hardcore 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 jeopardize 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.

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 real purpose for withdrawal of TADA charges
was to facilitate the grant of bail to the accused. In such
circumstances, why the camouflage? Why it is not so stated
in the application filed under Section 321? In fact, it is
a 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. 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 & Ors.
[(1987) 1 SCC 288]. 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. 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.
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 outburst 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.
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 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 consi der these aspects and take a
conscious decision. In the present case, without withdraw
consideration of these aspects the decision was taken to the
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.
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.


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