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Review of judgments or orders by the Supreme Court-Constitution of India, 1950, Article 137 read with Rule 1 of order XL of the Supreme Court Rules, 1966--Nature of the power of Review by the Supreme Court-Whether the Supreme Court could interfere with the granting consent orders for "Nolles Prosequi" against the accused, when the orders of the Special Judge, of the High Court in Revision, and of the majority of the Judges of the Supreme Court in an appeal by special leave, were in favour of the accused. Review order is to the effect "the review petition should be admitted and the appeal should be reheard immediately after the decision of Nandini Satpathi's case Crl. Appeals 48 and 49 referred to a Constitution Bench"-Meaning and consequence of the order admitting the Review Petition- Whether the judgment sought to be reviewed was set aside or not Code of Criminal Procedure, 1973, .section 321-Withdrawal from the Prosecution-Scope and construction of the provisions of the section as to the power of the Public Prosecutor to withdraw and the power to grant consent to such withdrawal by the Magistrate-Whether on the face of the record, there was any error apparent-Whether the principle of administrative law be invoked for construing the section. Locus standi of a complainant in a criminal proceedings to file a revision before the High Court and an appeal by special leave before the Supreme Court under Article 136 of the Constitution, against an order granting consent to withdraw the criminal case. "Discharge" of an accused, consequent to the consent passed by the Magistrate under section 321 and "Discharge" of an accused made under section 227 or 239 of the Code of Criminal Procedure.Under Article 137 of the Constitution of lndia The Supreme Court shall have power to review any judgment pronounced or order made by it, subject to the provisions of any law made by Parliament or any rules made under Article 145. The Supreme Court, in exercise of the powers conferred by Article 145 of the Constitution and all other powers enabling it and with the approval of the President made the "Supreme Court Rules 1966". Under Rule 1 of Order XL thereof, the "Court may review its judgment or order but no application for review will be entertained . . . . . . in a criminal proceeding except on the ground of an error apparent on the face of the record."Patna Urban Cooperative Banks was registered in May 1970 :ind it commenced its banking business with Nawal Kishore Sinha as itsChairman, K.P. Gupta as its Honorary Secretary, M.A. Hydary as Manager and A.K. Singh as loan clerk. Dr. Jagannath Misra who wasthen a Member of the Legislative Council was closely associated with Nawal Kishore Sinha and helped the Cooperative Bank and NawalKishore Sinha in diverse ways in connection with the affairs of the Bank and assisted in mobilisation of the resources for the Bank. There weresome irregularities in the affairs of the Bank. The then Chief Minister Shri Abdul Ghafoor ordered the prosecution of the officers and staff ofthe Bank including its Honorary Secretary Shri K.P. Gupta, Manager, M.A. Haidary and the loan clerk. However, this was not done. On11.4.1975 Shri Abdul Ghafoor was replaced by Dr. Jagannath Misra as Chief Minister. On May 16, 1975 he passed an order that only sternaction should be taken for realisation of loans since on the perusal of the file it appeared there was no allegation of defalcation against the Chairman and members of the Board. This date is alleged to have been later changed to May 14, 1975 by a fresh order. As per the revised orderdirections for restoration of normalcy and holding of Annual General Meeting of the bank was made. On 15.4.1976 the Reserve Bank cancelled the banking licence issued to the Bank and a liquidator was appointed. Consequent to the report of the Estimates Committee and the debate in the Assembly, Dr. Jagannath Misra directed, on 4.8.76 the prosecution against those involved in the defalcation. Thus 23 criminal cases were filed against the office bearers and loanees but Nawal Kishore Sinha was excluded from being arraigned as an accused. InJune 1977 there was a change of Ministry at the Centre. ln June 1977 the Government headed by Dr. Jagannath Misra was replaced by the Government headed by Sri Karpoori Thakur. As a sequel to the memorandums submitted by the Patna Secretariat Non-gazetted Employees' Association to the new Chief Minister On 9. 7 .1977 requesting him to enquire into allegations against Dr. Jagannath Misra, after a detailed procedure and obtaining requisite sanction of the Governor, a criminal case was instituted by the vigilance ~ Department against Dr. Jagannath Misra and others.The charge sheet filed by the State of Bihar against the respondents on 19th February, 1979, was for offences under sections 420/466/ 471/109/120-B of Indian Penal Code and under Sections 5(1) (a), 5(a) B (b) & 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act, 1947. The charge against Dr. Jagannath Misra was that he, who at all material times, was either a Minister or the Chief Minister of Bihar abusing his position as a Public servant, in conspiracy with the other accused, sought to interfere with the criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others with a view to obtain to himself and to the other respondents pecuniary advantage to the detriment of Patna Urban Cooperative Bank. The Chief Judicial Magistrate took cognizance of the case on 29. 7. 1979. There was a change of ministry in Bihar in June 1980 and the second respondent became the Chief Minister again. A policy decision was taken on 10.6.1980, that criminal cases launched out of political vendetta and cases relating to political agitation be withdrawn. On 24.2.1981 the Government appointed Shri L.P. Sinha as a Special Public prosecutor. On 25.2.1981, the secretary to the Government of Bihar wrote a letter to the District Magistrate informing him of the policy decision taken by the Government to withdraw from prosecution of two vigilance cases including the case with which the Court is concerned. He was requested to take steps for the withdrawal of the case. On 17th June, 1981, Shri Sinha made an application under s.321 of the Cr.P.C. to the Special Judge seeking permission to withdraw from the prosecution of respondent Nos. 2, 3 and 4 on four grounds; (a) Lack of prospect of successful prosecution in the light of the evidence, (h) Implication of the persons as a result of political and personal vendetta; (c) Inexpediency of the prosecution for the reasons of the State and public policy and (d) Adverse effects that the continuance of the prosecution will bring on public interest in the light of the changed situation. The learned Special Judge gave consent sought, by his order dated 20th June, 1981 The appellant, thereupon, filed a criminal Revision Application No. 874/81 against the order permitting withdrawal of the prosecution. The said application was dismissed in ii mine by the High Court by an order dated 14.9.1981. The appellant therefore preferred Crl. Appeal No. 241/82 by special leave to this Court. In two well reasoned concurring judgments, Baharul Islam J and R.B. Misra J. dismissed the appeal by their judgments dated December 16, 1982 and H by an equally reasoned judgment, Tulzapurkar J. dissented from the main judgement and allowed· the appeal. (See Sheonandan Paswan v. A State of Bihar & Ors.,[(1983) 2 SCR 61] Baharul Islam J. demited office on 13. 1.1983. An application was filed on 17.1.1983 to review the judgment under Article 137 of the Constitution read with Order XI of the Supreme Court Rules. On 22.8.1983, the matter was heard in open court by a Bench consisting of Tulzapurkar J., A.N. Sen J. and R.B. Misra J, and A.N. Sen J. passed an order admitting the Review Petition B without disclosing any reason therefor and directed the rehearing of the petition immediately after the decision in Mohd. Mumtaz v. Smt. Nandini Satpathy [1983] 4 SCC 104, which was referred already to a. - Constitutional Bench of five Judges. Hence the rehearing of the case to review the two concurrent judgments. |
