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TMI Blog2000 (11) TMI 1257X X X X Extracts X X X X X X X X Extracts X X X X ..... who is a 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 8th July, 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 22nd June, 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 28th July, 2000 and they had not learnt of it until after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court against Justice Sathasivam Commission to enquire 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 Digits killed in Karnataka. RESPONSE: Will be considered favourably after collecting particulars. DEMAND: 8. Minimum procurement price of ₹ 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 ₹ 4.50 to ₹ 9.50. DEMAND: 9. Five persons now in Tamil Nadu prisons should be released. RESPONSE: Will be considered favourably. DEMAND: 10. Minimum daily wage of ₹ 150/- for coffee and Tea Estate Workers in Tamil Nadu and Karnataka. RESPONSE: Estate workers in Tamil Nadu g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmant Kamala Naika, who also died in the incident, and also had resulted killing of six police personnel and injuring others and damaging the vehicles and also removing of the weapons and wire-less set belonging to police Department. 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 at general and inhabitants of the particular village, the Prosecutor has decided to withdraw from the prosecution the charged under the offences of the provision punishable Under Section 3, 4 and 5 of the 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 Explosive Substances Act, to certain extent cover the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted. He, therefore, denied the submission in the statement of opposition that the Government of the State of Karnataka had yielded to blackmail by Veerappan. 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 30th July, 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 19th August, 2000 the learned Judge passed on the Special Public Prosecutor's application the order that is impugned in these appeals, he set out in paragraphs 2 to 6 the details of the cases before him, thus: 2. The Special Cases in nos. 44/1994, 11/1997 and 3/1998 arise out of a charge sheet in Crime No. 70/1992 of Ramapura Police Station against Veerappan and others for offences Under Sections 143, 147, 148, 341, 342, 120-B, 326, 307, 302, 396 r/w 149 of I.P.C., Sections 3, 4 and 5 of Indian Explosives Act, Sections 3 and 25 of the Arms Act and also Under Sections 3, 4 and 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused persons alleging that on 9-4-1993 at Sorekayee Madu the accused had attacked and killed 22 persons belonging to both 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 Section 143, 147, 148, 341, 342, 120B, 324, 326, 307, 302 and 396 r/w 149 of IPC, Sections 3 and 25 of the Arms Act, 3, 4 and 5 of Indian Explosives Substances Act and also 3, 4 and 5 of Terrorist and Disruptive Activities 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 in Nos. 119/1995 and 79/1999 arise out of a charge sheet submitted by Ramapura Police in Cr. No. 5/1994 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 r/w 149 IPC, Sections 3 and 25 of the Indian Arms Act and also Sections 3, 4 and 5 of Terrorist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic 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 a ulterior purpose unconnected with the vindication of law, which the executive organs are in duty-bound to further and maintain . 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 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 discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment 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 16th August, 2000 the Special Public Prosecutor before the Designated Court (TADA 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 Section 3(1), 3(3), 4(1) 5 of Tamil Nadu Terrorist Disruptive Activities Preventive Act 1987 against the accused Venkatesan @ Radio Venkatesan and thus rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 29th August, 2000 directing that none of the accused respondents 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 the Designated Court of the State of Tamil Nadu have also not been released. 17. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 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 over all 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 property 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 Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rges under the T.A.D.A. 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 at 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 and that he would have to take notice of this aspect. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enkatesan @ 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 19th October, 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: 1. xxxxxxx. 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 8th August, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorized 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 4-5th August, 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 the TADA charges against Veerappan and his associates, including the accused respondents. In this context, the Special Public Prosecutor should have considered and answered the following questions for himself before he decided to exercise his discretion in favour of such withdrawal from prosecution of the TADA charges. 1. Was there material to show that the police and intelligence authorities and the State Government had a reasonable apprehension of such civil disturbances as would justify the dropping of charges against Veerappan and others accused of TADA offences and the release on bail of those in custody in respect of the other offences they were charged with? 2. What was the assessment of the police and intelligence authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this incident of kidnapping also showed that the abduction was being constructed 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 Para Military 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 the TADA charges. 9. On 8th August, 2000, the G.O. issued by the Government along with its covering letter was duly forwarded to me through the Law Department. A copy of the said G.O. 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 bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and deciding upon the basis thereof, whether he should exercise his discretion in favour of the withdrawal of TADA charges. Acting upon 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 the 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 the TADA charges against the accused respondents and their release on bail on applications filed by them. This indicates complicity with the accused respondents. It will have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the accused respondents. 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 accused respondents 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 poly 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet the requirements of Section 321 of the CrPC (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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erappan'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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 out burst and the authorities may have been taken unaware bu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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