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Ranjana Agnihotri & Others v/s Union of India &

Others
    Misc. Bench No. 4683 of 2013
    Decided On, 12 December 2013
    At, High Court of Judicature at Allahabad
    By, THE HONOURABLE MR. JUSTICE DEVI PRASAD SINGH
    By, THE HONOURABLE MR. JUSTICE ASHOK PAL SINGH & THE
HONOURABLE MR. JUSTICE AJAI LAMBA
    For the Appellants: H.S. Jain, Ausaf Ahmad Khan, C.B. Pandey,
Rohit Tripathi, Advocates. For the Respondents: Anoop George
Chaudhary, Bulbul Godiyal, AAG, C.S.C., Mr. K.C. Kaushik, A.S.G.,
Asit Kumar Chaturvedi, Jayant Singh Tomar, Manish Kumar,
Advocates.

Judgment Text
Devi Prasad Singh, J.

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

In pursuance of instructions issued by the State Government, the Public

Prosecutors, Incharge of those cases, moved applications for withdrawal from
the prosecution of the accused in the said cases.

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

Division Bench of this Court, after providing opportunity of hearing to learned

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

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

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

(iii) Whether the prosecution of offence relating to Central Act be withdrawn

without taking permission from the Central Government?

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

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

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

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

(i) Facts

(ii) Preliminary Objection

(iii) Maintainability of the Reference to Larger Bench

(iv) Terrorism

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

(vi) Role of State and Central Govt.

[A] U.P. Amendment

[B] Proviso

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

(viii) Conclusive discussion and finding over the issues involved

(ix) Opinion on Questions referred

(i) FACTS

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

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

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

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

9. Mr. Anoop George Chaudhary, learned Senior Counsel has vehemently

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

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

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

11. In pursuance to the afore-mentioned letter, the District Magistrates, SSPs

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

[A] BIJNOR

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

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

[C] GORAKHPUR

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

[D] LUCKNOW

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

[E] KANPUR NAGAR

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

[F] RAMPUR

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

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

[G] MORADABAD

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

[H] BARABANKI

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

Apart from the Presenting Officer, the Superintendent of Police, Barabanki

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

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

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

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

Subject to aforesaid backdrop, the Prosecuting Officers moved applications in

different courts for withdrawal of cases and admittedly in one such case of
district Barabanki, the Sessions Judge has rejected the application.

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

The affidavit filed in support of aforesaid reproduced as under:

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

Thus, it appears that in spite of dissenting notes of the Presenting Officers,

the government took a decision for withdrawal of cases, in pursuance of
which, the applications were moved.

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

(ii) PRELIMINARY OBJECTION

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

(iii) MAINTAINABILITY OF THE REFERENCE TO LARGER BENCH

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

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

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

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

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

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

22. Hon'ble Supreme Court in a case reported in Shri Bhagwan and Another
Vs. Ram Chand and Another, , had upheld the power of Hon'ble Chief Justice
to constitute larger Bench on the reference made by the Single Judge in the
following words:

It is hardly necessary to emphasise that considerations of judicial propriety

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

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

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

25. Keeping in view rival arguments advanced by the parties and subject to
settled proposition of law, we proceed to consider these two submissions as
prelimin

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