M. Sharma, J.
1. Both the criminal revisions No. 263/94 and criminal revision No. 336/94 have been preferred by the State of Assam and Mr. Niranjan Ghosh against the judgment and order dated 17-5-94 passed in Special Case No. 7(A)/94 (ACB PS Case No. 22/89) by the Special Judge, Assam and for quashing the proceedings in Special Case No. 7(A)/ 94 (ACB PS Case No. 22/89) pending in the Court of the Special Judge, Assam, Gauhati.
2. Both the revision petitions have been taken together for disposal as both involve same question for decision and both have arisen from the same impugned judgment and order.
3. The prosecution story in the case was that the Government of Assam by order No. EDB-271/87/ 159 dated 30-11-88 directed the State Co-operative Marketing Consumers Federation Ltd (referred as STATFED), Assam to procure 1.8 lack tonnes of levy free rice. The executive committee of Statfed fixed up modalities for supply of rice by different suppliers. Accordingly by an order dated 26-12-88 M/s Imperial Trading of Guwahati was asked to supply one rack of rice and this order was subsequently modified by order dated 1-3-89. But M/s. Imperial Trading by a registered power of attorney empowered to supply rice of their order to M/s. Suresh Kumar and Co who in turn entered into an agreement with M/s. Baboo Ram Jagadish Kr and Co of Punjab and on this agreement this company loaded/consigned rice in train and submitted a bill claiming 85% of payment of the order along with the sample of loaded rice. The quality control of the 'Statfed' on analysis of the said sample found the rice inferior to the laid down specification with 6% excess in permissible broken percentage. That in spite of defect in the quality under required specification the accused Mr. Niranjan Ghosh, the then Managing Director of Statfed, being satisfied passed order for payment of Rs. 78.37 lacks to said M/s. Baboo Ram Jagadish Kr. & Co. The rice which was received by the Statfed from the Railway consignment was not according to the sample produced. After an enquiry FIR was filed to the Officer in charge, ACB, Guwahati implicating the accused Mr. Niranjan Ghosh.
4. The petitioner in the revision petition No. 336/ 94 is the accused in the proceeding pending before the Court of Special Judge, At the relevant time he was the Managing Director of the Statfed and allegation is that in his official capacity he released an amount of Rs. 78.08 lacks to a firm M/s. Baboo Ram Jagadish Kr. & Co who supplied rice below specification. In this case a charge-sheet in ACB PS Case No. 22/89 was submitted in the Court of Special Judge, Assam, Guwahati which is pending there being Special Case No. 7(A)/94 Under Section 13(2) read with Section 13(1) (d) of Prevention of Corruption Act. The petitioner denied the allegation made in the charge-sheet and filed a Criminal Revision being Criminal Revision No. 422/89 before this Court and by order dated 10-11-89 proceedings of the ACB PS Case No, 22/89 was stayed. Later on the learned Advocate General, Assam informed the Court that the Government has decided to discontinue the impugned proceedings and withdraw the proceeding and on the basis of this assurance, by order dated 25-5-92 the said revision petition was closed. An application was filed Under Section 321 Cr. P. C. by the Public Prosecutor and the learned Special Judge refused to accord consent by his order dated 17-5-94. Stand of the petitioner/accused in the revision petition is that he had to deal with various essential commodities including rice, as the Managing Director of the Statfed throughout the State of Assam and that for some omission and commission he is not responsible and guilty as alleged in the aforesaid ACB PS Case No. 22/89. That because of the seriousness of the allegations the petitioner himself moved the State Government on 23-4-89 to hand over the case to CBI to apprehend the actual culprit and to that effect wrote letter to the Commissioner and Secretary. Co-operation Department referring the matter to CBI praying for necessary sanction. As no response was available from the Government the petitioner had lodged an FIR on 27-4-89 and the action was approved in the executive committee meeting of the Statfed. That the State Government from materials collected and the evidence available had instructed the Public Prosecutor for seeking consent for withdrawal of the case and the Public Prosecutor after considering the materials independently filed the application Under Section 321, Cr. P.C.
5. During investigation the accused preferred a revision petition being Crl. Revision No. 422/89 for quashing the said ACB PS Case No. 22/89 against him and the said revision petition was closed by order dated 25-5-92 on the basis of the assurance given by the learned Advocate General, Assam that the proceeding against the accused would be dropped. By order dated 10-11 -89 this Court in the aforesaid revision directed stay of the proceeding of ACB PS Case No. 22/89 and after receipt of the order, the Special Judge stayed the proceeding on 30-11-89 and the stay order of the proceedings has been continuing till the matter was taken up for hearing by the Special Judge on the application of the Public Prosecutor (petitioner No. 2 in Crl. Rvn. No. 263/94) Under Section 321, Cr P. C. and by judgment and order dated 17-5-94 the learned Special Judge declined to give consent. Being aggrieved, the accused petitioner has preferred the second revision petition.
6. After investigation, charge-sheet being No. 1 /90 was submitted Under Section 13(1)(d)(ii)/13(1)(d)(iii) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sanction was accorded to prosecute the accused.
7. In the withdrawal petition Public Prosecutor's contention was that for greater interest of administration of justice, the consent of the Court may be accorded due to paucity of evidence; that satisfaction of the Public Prosecutor, on the basis of. the material on record, is that essential ingredients of the alleged sections are absent.
8. Against the impugned order, the stand of the Public Prosecutor is that it was a fit case for according consent for withdrawal of the case; that Court on consideration of the application cannot substitute the views and satisfaction of the Public Prosecutor; that sanction by Government for prosecution cannot be the basis of proof of guilt of the accused Government employee.
9. From perusal of the impugned judgment it emerges that the refusal of the Special Judge to accord consent was that since the sanction has been given by the Government, it must therefore, be deemed that while granting the sanction Under Section 19 of the Prevention of Corruption Act, the sanctioning authority must have exercised due care, caution before deciding to accord sanction; that when the sanction is accorded on the basis of the evidence and materials collected during investigation; State cannot ask for withdrawal of prosecution which was once granted. Further ground of refusal of consent was that the application for withdrawal was made belatedly and that the Public Prosecutor was under pressure of the Government for which he had to make the withdrawal petition.
10. Section 321, Cr P. C. reads as follows:-
"Withdrawal from prosecution - Any 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, withdrawal 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:
11. In a catena of decisions the Apex Court has laid down some propositions which can be taken as the guidelines in deciding a matter Under Section 321, Cr P.C. The guiding propositions have been summed up in the case of Rajendra Kumar Jain v. State through Special Police Establishment, AIR 1980 SC 1510 : (1980 Cri LJ 1084), in which the Apex Court enunciated those propositions on the backdrops of the decisions in AIR 1957 SC 389 : (1957 Cri LJ 567), (State of Bihar v. Ram Naresh Pandey), AIR 1972 SC 496 : (1972 Cri LJ 301) (MN Sankaranaryanan Nair v. P.V. Balakrishnan), AIR 1977 SC 903 : (1977 Cri LJ 773), (State of Orissa v. Chandrika Mohapatra), AIR 1977 SC 2265 : (1977 Cri LJ 1935), (Balwant Singh v. State of Bihar) and AIR 1980 SC 423:(1980 Cri LJ 324), (Subhash Chander v. The State). The enunciated propositions are as follows:-
1) Under the scheme of the Code prosecution of an offender is primarily the responsibility of the Executive.
2) Withdrawal from the prosecution is an executive function of the Public Prosecutor.
3) The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to some one else.
4) The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.
5) The Public Prosecution may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds (underline supplied).
6) Public Prosecutor is an officer of the Court and responsible to the Court.
7) The Court performs a supervisory function in granting its consent to the withdrawal.
8) The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.
9) The duty of the Public Prosecutor is to inform the Court and the duty of the Court is to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution.
The Apex Court in this case has viewed that where long and sensitive public interest is involved whether political or otherwise, an elected government sensitive and responsive to the feeling and emotions of the people is justified to decide not to prosecute the alleged offenders involved. In the present case where the accused petitioner had taken action himself promptly which was on record and on the basis of the record the Government found insufficient evidence for continuing the prosecution case against the accused petitioner and for the interest of administration of justice the learned Public Prosecutor being satisfied on the basis of the record had filed the application after careful consideration of the prosecution materials.
12. Duty of the Court as envisaged Under Section 321, Cr P. C. is to appraise itself the reasons which prompt the Public Prosecutor to withdraw from the prosecution. As it transpires the main ground taken by the Public Prosecutor was paucity of evidence. The view of the Court below was that on consideration of the case diary and the evidence recorded by the Inquiry Officer in course of investigation there were sufficient evidence to put the accused on trial on the allegations levelled. His further view was that the charge-sheet has been filed after due investigation by a Deputy Superintendent of Police on the basis of evidence and materials collected and that State Government has accorded the necessary prosecution sanction, after careful consideration of the investigation report and materials collected.
13. In catena of decisions the Apex Court enunciated some principles regarding according sanctions and those principles govern the according of sanction in all cases of sanction. The object of the provisions of sanction is not to punish a government officer but to protect him from vexatious proceeding. Satisfaction from the materials of charges may lead the sanctioning authority to accord sanction in a given case, but Court must not presume that granting of sanction is itself a proof of guilt and therefore the government which accorded sanction cannot take different view and ask for withdrawal of prosecution. Though, grant of sanction made in. a judicial process, is an executive function and therefore, satisfaction of the sanctioning authority from the investigation report and of the Court on the same is quite different and independently at the time of according sanction, the authority only considers the prosecution case and not the defence stand. On the other hand legality or illegality of the procedure in sanctioning the prosecution etc is always open to challenge at any stage of the proceeding, i.e, even at appellate stage also and in case of illegality or infirmity if established in granting sanction, the entire proceeding is liable to be quashed. The absolute power of according or withholding sanction is conferred on the government and this power of the government is irrelevant to the duty cast on the Court whose duty is to ascertain the true nature of the act - that whether it can take cognizance of the case with or without previous sanction. The Court has to fix out, if the offence was committed while acting or purportedly to act in discharge of his official duty (relied on Matajog Dobey v. HC Bhari, AIR 1956 SC 44: (1956 Cri LJ 140). In the above reason I hold that granting of sanction by the authority/government is always open for challenge and no Court can presume that according sanction to prosecute by the government on the satisfaction of a prima facie case the alleged offence is imputable to the alleged accused. An offence disclosed in a sanction order or in an investigation report cannot be presumed to be an offence committed by the accused officer unless established by legal evidence and there being absence of judicial element Court cannot import it for a judicial consideration, more so, when a case Under Section 321 Cr P. C. has to be decided.
14. The Hon'ble Calcutta High Court in the case of Bibhuti Bhusan Chakravarty, (1971) 1 Cal HN 360 (referred in BB Mitra's Code of Criminal Procedure, 16th edition part-2) held that power of government to review Under Section 197 Cr.P.C. is neither a sword nor a shield, but rather a veil and at an opportune and appropriate time be lifted provided that act of government is bona fide and not arbitrary. It was further held that, therefore, when a previous government decline to grant sanction and present government decides to grant sanction it is not the question of review or reversing the decision of the previous government, that the power is always there in the government to lift the veil or remove the protection even though the government had refused to lift that veil on the earlier occasion provided the occasion of the government is taken on relevant considerations, that it is on an executive discretion of the government and it may be taken from time to time provided the same decision is not taken arbitrarily or in a mala fide manner. I respectfully subscribe to the view held by the Calcutta High Court.
15. In view of the above discussion I hold that grant of sanction is purely anexecutive function and not judicial function of the Government and as sanction need not be based on legal evidence and term 'sanction' has no significance to import judicial element into the act of the executive. The view of the learned Special Judge in this regard is not sustainable in the light of my above discussion.
16. The other ground for refusal of consent that the application for withdrawal has been made belatedly is not sustainable. Due to order or stay in ACB PS Case No. 22/89 passed by this Court in Crl Revision No. 422/89, on 10-11-89 the proceeding was stayed and by order dated 25-5-92 the said petition was closed on the assurance of the government that the impugned proceeding in ACB PS Case No. 22/89 would be withdrawan. Learned Public Prosecutor filed application on 23-3-93 for consent of the Court for withdrawal of the prosecution of the case. Though the delay for filing the application between the closure of the revision petition and of the government application u/S. 321, Cr P. C. was considered by the Court and the view was taken accordingly, in my considered opinion, it is misconceived and contrary to the provisions of law as Section 321, Cr P. C. provides that the application under this section is maintainable at any time before the judgment. Another aspect of the impugned order is that before exercising its discretionary power to accord consent the Special Judge considered the case diary and other documents to make an enquiry to find out the existence of evidence against the accused person. The charge-sheet of the case was submitted by the investigation agency on completion of investigation and pending for framing charge, Case diary mentioned in Section 172, Cr P. C. contains information as to what is being done to complete the investigation in the case which contains only facts. In certain cases, such as, consideration of the bail petition, valuable assistance can be received for the purpose of granting/enlarging bail in some given circumstances and it is used legitimately. Absence of diary cannot vitiate the trial, more so, in consideration of a petition Under Section 321, Cr P. C. If the case diary is not kept properly under the provisions of Section 172, Cr P. C. materials collected by the Investigating Officer/ Police Officer may diminish the value of the prosecution case, but it does not have the effect of making the legal evidence inadmissible. A case diary cannot have the value of evidence in a trial. In the case of Habeeb Mahmad v. State of Hyderabad, AIR 1954 SC 51: (1954 Cri LJ 338), the Apex Court held that a Judge is in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries, that proper and legal use of the cases diary is only allowed under/by Section 172, Cr P. C. It is further held that the Court should not take the statements contained in the case diary as the materials which would help the Court to come to a decision of the case. This ratio is applicable to all cases, more so, when a decision has to be taken under the provisions of Section 321, Cr P. C. and at a stage when the proceeding is pending for framing of charge. The Court below is not justified in using the case diary to the prejudice of the accused, even at the defence's request to examine it. In Seikh Yusuf v. State of Bihar, AIR 1946 Patna 127, the Hon'ble Patna High Court held that where the Court peruse the case diary, it is impossible to avoid the conclusion that it had allowed its mind to be influenced by what is noted in the case diary. In this aspect of the matter in a petition Under Section 321, Cr. P. C. Court should not substitute the case diary and the statements taken by police for the purpose of charge-sheet with the legal evidence to be adduced in the trial. On the basis of statements and any materials made before the police no Court can presume existence of offence and in order to sustain charge there must be legal evidence which does not include case diary or statements recorded by police. Contrary action of the Court certainly gives scope for prejudice to the Public Prosecutor as well as to the accused who is the aggrieved person. When consent for withdrawal of the prosecution is the question before the Court, Section 321, Cr P. C. gives jurisdiction to the Public Prosecutor to approach the Court for withdrawal of the prosecution on grounds which has to be examined by the Court with judicial decision at any stage, in a proceeding before passing of the judgment. In that view of the matter the learned Special Judge committed an error of law holding that at the time of framing charge the sufficiency of evidence can be proved into.
17. The learned Advocate General submitted that sole consideration of the Public Prosecutor while application for withdrawal was filed, was in the larger interest of administration of justice and was not government pressure; that the power conferred on the Public Prosecutor to withdraw from the prosecution was exercised in relation to the facts and circumstances of the case in furtherance of law. It was further submitted that there is no question of governmental presssure on the Public Prosecutor for withdrawal of prosecution. The Public Prosecutor before the Special Judge made out some grounds, that prosecution has suffered from paucity of evidence and that prosecution case was not well founded. Further learned Advocate General has led the Court to the contention of the accused petitioner made in Crl Revision No. 336/94, which this Court has taken for hearing along with the instant case, wherein the accused petitioner contended that while he was the Managing Director of the 'Staffed', he had to deal with various essential commodities including rice and that for some omission and commission the petitioner was not at all responsible and guilty, that he was falsely implicated in the ACB PS Case No. 22/89, that because of the seriousness of the allegations the accused petitioner himself moved the State Government to hand over the case to CBI to apprehend the real culprit and to that effect wrote a letter to the Commissioner and Secretary, Govt. of Assam, Co-operation Department referring the matter to the CBI for necessary action and having no response he got an FIR lodged on 27-4-89 and his action was approved by the Executive Committee meeting of the 'Staffed' and that when the petitioner took steps to bring the actual culprit to book he was implicated in the case as a scape goat. The State Government from the materials collected and the evidence available had instructed the Public Prosecutor to move the Special Judge with a petition for withdrawal of the prosecution. That before the Public Prosecutor applied for withdrawal he applied his mind to the facts and of the case independently without subject to any outside influence.
18. In Sheonandar Paswan v. State of Bihar, AIR 1983 SC 194 : (1983 Cri LJ 348), in which appointment of Special Public Prosecutor to conduct the case in question was questioned without cancelling the appointment of the Special Public Prosecutor appointed earlier to conduct the case, while discussing the role and jurisdiction of the Public Prosecutor the Apex Court held that,-
"...........it cannot be said that a Public Prosecutor's action is illegal or improper, if receives any communication on instruction from the Govt. Unlike the Judge, the Public Prosecutor is not absolutely an independent officer. He is an appointee of the Govt. So, there is a relationship of counsel and client between the Public Prosecutor and the Govt. A Public Prosecutor cannot act without the instructions of the Govt. Section 321, Cr P. C. does not lay any bar on the Public Prosecutor to receive any instruction from the Govt. before he files an application under that section, but bare perusal of the section shows that it does not prescribe any ground nor does it put any embargo or fetter on the power of the Public Prosecutor to withdraw from prosecuting a particular Criminal case pending in any Court."
19. As it appears, the Special Judge has no any foundation to hold that the Public Prosecutor was pressurised and influenced by the Govt to file the petition under Section 321, Cr.P.C.
20. In Sheonandar Paswan's case (1983 Cri LJ 348) (Supra) the Apex Court, interpreting Section 321 Cr P. C. held that an order Under Section 321, Cr P. C. does not have the same status as an order of conviction or acquittal recorded by a trial or appellate Court in a criminal prosecution, inasmuch as the former has not been made appealable. An order under the Section as a narrower scope. As an order Under Section 321, Cr P. C. recorded by the trial Court is judicial, what the trial Court is expected to do is to give reasons for according or refusing its consent to the withdrawal. The duty of the Court is to see that the grounds of withdrawal are legally valid and the application made by the Public Prosecutor is bona fide and not collusive. In revision of an order Under Section 321, Cr P. C. the duty of the High Court is to see that the consideration by the trial Court of the application Under Section 321, Cr P. C. was not misdirected and that the grounds of withdrawal are legally valid.
21. In the instant case, the learned Special Judge arrived at his decision on some extraneous consideration. Apparently the Court below has taken the assistance of the ease diary of the complaint case and accepted the statement of the witnesses taken by the Investigating Officer as the evidence. Further as discussed above the basis of his decision was misconceived. From the facts and circumstances of the case, and going through the records and documents, I hold that the view of Public Prosecutor can, in the circumstances, be taken by any reasonable man and therefore Court cannot substitute its own opinion for that of the Public Prosecutor. The Public Prosecutor had applied its mind on the relevant material and documents, and this Court also finds force in the submissions of the learned Advocate General, that there were documents/materials which arc negative to the prosecution story and therefore it cannot be said that the Public Prosecutor acted under government pressure and with improper motive. In presence of such materials on which the Public Prosecutor applied his mind cannot be rejected by the Court by making a roving enquiry on the basis of materials of the case diary for the purpose of finding out whether his conclusions were right. In that view of the matter I hold that the Special Judge is not competent to make such roving enquiry; in doing so he acted illegally and in excess of his jurisdiction. Further I am of the view that on the materials available before the prosecution, there is no materials available before the prosecution, there is no materials to convict and sentence the accused under the alleged sections of the Act and there is bleak possibility of conviction of the accused due to the paucity of evidence. Pendency of prosecution case will be only a futile exercise which will not be in the interest of administration of justice.
22. In view of my above discussion the impugned judgment and order of the. Special Judge is set aside and both the petitions are allowed.