Holding

Section 321 CrPC allows withdrawal of prosecution at any time before judgment, even after charges are framed, and the magistrate’s consent was proper.

Summary

The case concerned an alleged misappropriation of funds collected for party souvenirs by the former Chief Minister of Orissa, Nandini Satpathy. After a vigilance case was filed and charges under the IPC were framed, the state government decided to withdraw politically motivated prosecutions. The Special Public Prosecutor applied under Section 321 of the Criminal Procedure Code (CrPC) for withdrawal, and the Additional Chief Judicial Magistrate consented. The appellant challenged this withdrawal, arguing that once a charge is framed the prosecutor cannot seek withdrawal and that the court should not permit it on the ground of insufficient evidence. The Supreme Court held that Section 321 permits withdrawal at any stage before judgment, even after charges are framed, provided the court is satisfied that public interest is not prejudiced, and therefore upheld the magistrate’s consent and dismissed the appeal. The Court also noted that the charge against the respondent was groundless and could be quashed under Section 239 CrPC.

Issues considered

The scope of Section 321 CrPC: can a public prosecutor seek withdrawal after a charge has been framed?
Whether the court may give consent to withdrawal on the ground of insufficient evidence.
Whether political considerations justify withdrawal of prosecution.
Whether the charge should be quashed under Section 239 CrPC instead of permitting withdrawal.

Legislation cited

Code of Criminal Procedure, 1973s. 239, s. 321
Indian Penal Code, 1860s. 120, s. 406, s. 467, s. 471

Subjects

withdrawal of prosecutionSection 321 CrPCpublic prosecutorpolitical victimisationcharge framingcriminal breach of trustSection 239 CrPCquashing of charge

Judgment

MOHD. MUMTAZ A
~- v.
NANDINI SATPATHY AND ORS.

DECEMBER 20, 1986

[P.N. ·BHAGWATI CJ!, E.S. VENKATARAMIAH, B
V. KHALID, G.L. OZA AND S.NATARAJAN, JJ.]
+ Criminal Procedure Code, 1973: ss.321 & 329-Nolle prosequi-
Withdrawal from pro5ccution-Right of public prosecutor-Charge
framed against accused-Withdrawal whether legal.
- ·...C Section 321 Criminal Procedure Code, 1973 empowers a Public
c
Prosecutor incharge of a case to withdraw with the consent of the court
+ from the prosecution of any person in respect of any one or more of the
offences for which he is tried, at any time before the judgment is
pronounced.·
D
Respondent No. 1 Ex-Chief Minister of Orlssa, was alleged to
have misappropriated a huge sum, said to have been collected by
District Congress Committees from various companies for publication of
their advertisements io party's souvenirs before the 1971 General Elec-
lions. A case was registered by the Vigilance Department against her
and a charge-sheet submitted. The Addi. Chief Judicial Magistrate E
~ framed charges under ss.406,467 ,471 and 120 of the lPC.

After the 1980 General Election, the State Government took a
policy decision to withdraw cases against political leaders who were
" subjected to victimisation. The Special Public Prosecutor on being
satisfied that the charge of criminal breach of trust would fail against F
respondent No. 1 filed a petition under s.321 Cr.P.C. and sought the
permission of the court io public ioterest for withdrawal of the case,
!{ when the case was posted for consideration of charge.

After making an objective assessment of the merits of the applica-
tion and beiog satisfied that the withdrawai of the prosecution would in G
no way affect any public interest or improve any public confidence the
Addi. Chief Judicial Magistrate granted consent to,withdraw from the
prosecution. The appellant's revision petition having been dismissed by
--I, the High Court he appealed by special leave to this Court.

Dismissiog the appeal the Court, H

691
692 SUPREME COURT REPORTS [1987] l S.C.R.

HELD: Per Oza, J. (Bhagwati C.J.I. and Oza, J.)
A
l. Once a charge has been framed against the accused on the
basis ihat there was ground for presuming that be had committeill the
offence charged against him, the Public Prosecutor cannot make an
application for withdrawal from the prosecution and the Magistrate
B cannot give his consent to such withdrawal on the ground that there was +
insufficient or no evidence to sustain the_prosecution. [698H-699B]

2. The charge of criminal breach of trust framed against respon-
dent No. 1, however, was totally groundless. There was nothing on
record to indicate that the entrustment of funds to her was for the
specific purpose of being utilised only for the purpose of publication of
C advertisements in the souvenirs. It was not the case of the prosecution
that any of these amounts were handed ·over by any of the companies to
her. The entrustment of thes~ '!1110unts, if at all, was to the souv,enir
committee of the All India Congress Committee and respondent No. 1
could not he charged for utilising any of these amounts for the purpose
D other than that for which it was entrusted to her. The charge against
her, therefore, could not he sustained. [699E-G]

Instead of permitting the prosecution to he withdrawn under
s.321 the charge framed against respondent No. 1 is quashed under s.239
of the Code of Criminal Procedure, 1973. [699H-700A] Ji-
E
Per Venkataramiah, J.

I. I. Consent can he given under s.321 of the Code of Criminal ..
Procedure, 1973 for withdrawal from the prosecution of a case at any
time before the judgment is pronounced. The framing of the charge
F cannot he an impediment to give consent to such withdrawal.

1.2. In the instant case, the Public Prosecutor had applied his
mind to the case before applying for withdrawal and the Chief Judicial
Magistrate had not committed any error in giving his consent to such
withdrawal. The order was, therefore, fully justified.
G
2. The decision in State of Bihar v. Ram Naresh Pandey, [1957]
SCR 279, interpreting s.494 of the Code of Criminal Procedure, 1898
and the decision in R.K. Jain v. State through Special Police Establish-
ment & Ors., [1980] 3 SCR 982, interpreting s.321 of the Code of Crimi-
nal. Procedure, 1973 do not call for any reconsideration.[694C-E]
H
MOHD.MUMTAZv. NANDINISATPATHY 693
....__-.
I
Per Khalid, J. A
l. Order of withdrawal passed by the Additional Chief Judicial
Magistrate is upheld. [695D I

2. Consent can be given under s.321 of the Code of Criminal
Procedure for withdrawal from the prosecution of a case, not only when
+ the charge is not framed bot even after the charge is framed and at any
time before the judgment. [694H-695A]
B

3. Section 239 of the Code of Criminal Procedure 1973 is not.
attracted to the facts of the case for the propriety of the charge framed
was not at issue. [695B, Cl
c
,Sheo Nandan Paswan v. State of Bihar, Crimlnal Appeal No. 241 of
1983 decided on 20th December 1986, applied.

State of Bihar v. Ram Naresh Pandey, [1957] SCR 279 and R.K.
Jain v. State, [1980] 3 SCR 982, referred to. o
Per Natarajan, J.

I. The consent given by the Additional Chief Judicial Magistrate
to the ·S~ial Public Prosecutor for withdrawal of the prosecution
suffers from no error of law, patent or latent. [701G] E

2. There is no material in the case to show that the Special Public

- Prosecutor was influenced by any improper motives for filing the appli-
cation for withdrawal of the prosecution or that he had acted against h.is
will at the behest of anyone else. The Additional Chief Judicial Magis-
trate had bestowed judicial consideration over the matter and had F
-:r· •hereafter passed a reasoned order. Not only he hut also the High Court
I .. had found after a careful scrutiny of relevant factors and circumst-
ances, that the application for withdrawal of the prosecution made hy the
Special Pllblic Prosecutor fully satisfied the tests laid down hy the Supreme
Court inasm~ch as the Public Prosecutor had not exercised his executive
function improperly and also had not attempted to interfere with the nor- G
mal course of justice for illegitimate reasons or purp0ses. [700D-E, 701-E-F]

·-', State of Bihar v. Ram Naresh Pandey, [1957] SCR 279 and R, K.
Jain v. State, [1980] 3 SCR 982, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal H
No.49 of 1983.
694 SUPREME COURT REPORTS (1987] 1 S.C.R.

A
From the Jud~ent and Order dated May 14, 1981 of the Orissa ~
High Court in Crl. R. No. 21 of 1981.

V.J. Francis for the Appellant.

Anil B. Divan, D.P. Singh, G.S. Chatterjee, R.K. Mehta, Sala-
B man Khurshid, L.R. Singh and Vinoo Bhagat for the Respondents.
+
The Judgment
. .
of the Court was delivered by

VENKAT ARAMIAH, J: I agrre that this appeal has to be dis-
missed. I am of the view that the decision in The State of Bihar v. Ram ).
Naresh Pandey, [1957] SCR 279 interpreting section 494 of the Code
c of Criminal Procedure, 1898 and the decision in R.K. Jain etc. v. State
through Special Police Establishment and Others, (1980] 3. SCR v
982 interpreting section 321 of the Code of Criminal Procedure, 1973
do not call for any reconsideration. I am in full agreement with the
views expressed in these decisions. I am satisfied that the Public
D Prosecutor had applied his mind to the case before applying for with-
drawal and the Chief Judicial Magistrate has not committed any error
in giving his consent to such withdrawal. Such consent can be given at •
any time before the judgment is pronounced. The framing of the
charge cannot be an impediment to give consent to such withdrawal as
it is evident from section 32 l(b) of the Code of Criminal Procedure, J,r
E 1973.

The appeal is, therefore, dismissed.

KHALID, J: I have just received (at 3.45 p.m. on 19th
December, i986) a draft Judgment by Oza. J. in the above case. I
F agree with the conclusion that the appeal has to be dismissed, but
not, with respect, with the reasoning contained in the Judgment. Since )-;
the case is listed for Judgment on 20th December, 1986, I do not have \
time to write a detailed Judgment.

The question to be decided in this appeal is the scope of Section
G 321 of Criminal Procedure Code. Oza, J. has set aside the permission
granted by the Court to withdraw the prosecution under" Section 321,
Criminal Procedure Code, but allowed the appeal quashing· the charge )>
framed agains.t respondent No. I under Section 239. of the Code of
Criminal Procedure. I regret to state that I cannot re-concile myself
with this approach. A cursory glance at Section 321 will satisfy anyone
H that consent can be given for withdrawal from the prosecution of a case,
MOHD. MUMTAZv. NA;NDINISATPATHY [OZA,J.I 695
.l· not only when the charge is not framed, but even after the charge is A
framed and at any time before the Judgment.

This appeal along with Criminal Appeal No. 48 of 1983 were
directed to be posted before a Constitution Bench to consider the
scope of Section 321, Criminal Procedure Code. That being so, I do

+ not think it proper to abandon that pursuit and take refuge under B
Section 239 of Criminal Procedure Code.

In a separate Judgment to be pronounced by me in Criminal
Appeal No. 241 of 1983, I have outlined the scope of Section 321 of
.... Criminal Procedure Code. What is to be decided in this case is whether
•
the order passed by the Magistrate under Section 321, Criminal Proce- c
dure Code, is proper or not. We are not called upon to consider the
+ propriety of the charge framed and then examine the evidence and see
whether the accused should be discharged or the charge framed should
be upheld.

.I adopt the reasons given by me in Criminal Appeal No. 241 of D
1983, relying upon the decision reported in [19571 SCR 279 (State of
Bihar v. Ram Naresh Pandey) and in [1980] 3 SCR 982 (R.K. Jain v.
State) and uphold the order of withdrawal passed by the Additional
Chief Judicial Magistrate, Bhubaneswar, and upheld by the High
¥.. Court in revision, and dismiss the appeal.
E
OZA, J:[For himself and on behalf of Bhagwati CJ.] The present
appeal by special leave is directed against the judgment of the High Court
.• of Orissa dated 14th May 1981 in Criminal Revision No. 21 of 1981
arising out of an order dated 20th September, 1980 passed by Additional
Chief Judicial Magistrate, Bhubaneswar allowing an application filed by
the Special Public Prosecutor wherein he prayed for withdrawal from the F
'
-;-<
/· prosecution of the Vigilance Case No. 33 of 1977 against Respondent
No. 1 By the impugned judgment, the High Couri dismissed Criminal
Revision filed by the appellant-petitioner and confirmed the order
passed by Additional Chief Judicial Magistrate.

The Vigilance Department submitted a charge-sheet against G
respondent No. I on the allegation that All hldia Congress Party some
'
. -·-<l time before the General Election of the Parliament in the year 1971 set
out a programme to raise funds for publication of Souvenir on behalf
of the said party by each of the District Cong_ress Committees under
different provinCial Congress Committees to .educate people about the
H
policy and programme of the Congress Party and the achieverre:cts it!
696 SUPREME COURT REPORTS [1987] !S.C.R.

the context of 1971 Elections. It was alleged that the Souvenir ~
A Committee was formed and huge amount was collected from different
companies at Delhi and Bombay for publication of advertisements in
the Souvenirs. It is further alleged that Smt. Nandini Satpathy respon-
dent No. 1 misappropriated a sum of Rs.1,02,200 out of this amount
collected from the companies and did not take steps for asking the
B
Companies' advertisements for publication in the Souvenirs. It is -.+-
alleged that forgery was committed and Shri Ramanath Panda, respon-
dent No. 2 was also alleged to have participated with respondent No. 1
in misappropriation of the aforesaid amount. On the information of
Shri Shyamsunder Mohapatra, Ex-Member of Parliament, a case was
registered by the Vigilance Department and ultimately a charge-sheet ~
was submitted against respondent Nos. 1 and 2. Shri B.M. Patnaik the ·
c then Advocate General of Orissa was appointed as a Special Public
Prosecutor to conduct the case. By order dated 27.9.1979, the Addi- +-
tional Chief Judicial Magistrate framed charges under Sections 406,
467, 47111nd 120 of the l.P.C. against respondent No. l and under
Section 406 read with Section 34 of the I.P.C. against respondent
No. 2.
D
After the General Elections of May/June, 1980, Shri Patnaik
resigned from the office of Advocate General and also informed the
State Government that he was not inclined to continue as Special
Public Prosecutor in the case against Smt. Nandini Satpathy. In fact, ,.!(
though the case had been fixed on a number of dates between July and
E
November, 1980 Shri Patnaik did not appear in the case on any one of
these dates.
...
Thereafter respondent No. 4 who had been appl'ointed as
Special Public Prosecutor to conduct the cases of the Vigilarice
Department under Section 24(6) of the Code of Criminal .Proce< ue
F
was instructed by the Government in the Vigilance Department to ')-:-
take charge of this case. On 5..Jl.80, Shri P.K. Mohanty, Advocate · 1.
sent a letter tu the then Advocate General Shri Gobind Das requesting
him for withdrawal of this case and by letter dated 6. 11. 1980 the
learned Advocate General Shri Gobind Das forwarded this letter of
Shri P. K. Mohaniy, Advocate to the ChiefSecretary who endorsed the
G letter to Inspector General (Vigilance) asking him for his comments.
I. G. of Police (Vigilance) suggested that it would be proper to obtain
the views of the Law Department, and after receipt of the comments of
I. G. of Police (Vigilance) the Chief Secretary referred the matter to
the Law Department for advice and the Legal Remembrancer after
considering the legal position regarding !he withdrawal of the prosecu-
H
tion observed as under:
MOHb. MUMTAZ v. NANDINI SATPATHY (OZA. J.) 697

~··
"As it sometimes happens, Political leaders are subjected A
to victimisation. Resort is.had to law courts to harass politi-
cal rivals. In view of the law laid down by the Supreme
Court Government may take a policy decision to curb such
poli!ical victimisation through law Courts and direct with-
drawal irrespective of the question whether or not there is B
sufficient evidence in support of the prosecution.

The instant ca.se is one instituted against Smt.
Nandini Satpathy, Ex-~hief Minister of Orissa.'It is possi-
ble for Government to take notice of the intense political
rivalry between Smt. Nandini Satpathy, on the one hand
and the erstwhile leaders of Janta Party on the other hand C
that motive behind institution of such case'S was political
· victimisation rather than vindication of the law. Govern-
ment may suggest withdrawal of such cases to the con-
cerned Public Prosecutor."

On the receipt of this opinion from the law Department, the file D
was endorsed by the Chief Secretary to the Law Minister and the. Law
Minister endorsed the file to the Chief Minister. After considering
the matter from all angles, the Chief Minister passed an order dated
13. 11. 1980 that the case be withdrawn. By letter dated 15.11.1980, the
LG. (Vigilance) communicated the decision of the Government to
withdraw the prosecution to the Special Public 'Prosecutor Shri E
Dibakar Bhuyan and requested him to take necessary action in the·
matter. After respondent No. 4 was put in charge of the case, he
examined the case diary and the connected papers and on being satis-
fied that the charge of criminal breach of trust would fail against Smt.
N andini Satpathy, he filed an application under Section 321 of the
Code of Criminal Procedure for withdrawal from the prosecution on F
having found that the charged amounts in this case are contributions to
Souvenir Committee of the All India Congress Committee and that
none of the members of the Central Souvenir Committee has comp-
lained of any dishonest use or fraud or injury or wrongful loss to the
Committee or AICC for such non-utilisation of the funds and that the
offences charged would ultimately depend upon tlie proof of dishonest G
intention or fraud or wrongful loss to the Central Souvenir Committee
or to the AICC. On 16.12.1980 the Special Public Prosecutor made an
application for additional ground to be added in the application for
withdrawal and the additional ground alleged was that in public
interest and in the changed circiimstances, the State Government
desired to withdraw from the prosecution. H
698 SUPREME COURT REPORTS [1987] 1 S.C.R.

After consideration of the case, the Additional Chief Judicial ~
A Magistrate by order dated 20th December, 1980 recorded his consent
and permitted the Special Public Prosecutor to withdraw from the
prosecution. Thereafter one M.ohd. Mumtaz, the present appellant
who was not a party to these proceedings filed a revision petition in the
High Court of Orissa challenging the order of the Additional Chief
8 Judicial Magistrate permitting withdrawal of the case. But by an order +
dated 14.5.81 the High Court dismissed the revision petition. Hence
this appeal by special leave.

The F.I.R. in this case was lodged by one Shyamsunder
Mahapatra against respondents Nos. 1 and 2 alleging that in January
and February 1971 certain companies had issued 49-cheques in the
-
c names of Presidents at' the District Congress Committees of Orissa
totalling Rs.1,08,200 for advertisements to be published in Souvenirs
to be brought out in each district by the respective District Congress
Committee. These cheques were deposited in the account of
Chairman, Souvenir Committee in Canara Bank, Bhubaneswar. It is
D alleged that respondent No. 1 misappropriated the amount by drawing
in favour of self-bearer 9 cheques aggregating to Rs.95,000 and two
bearer cheques aggregating to Rs.32,854 in the name of respondent
No. 2. It was alleged that neither advertisements were published nor
the amounts returned to the companies. It is significant to note that
Shri Shyamsunder Mahapatra was neither an office-bearer of the
E U.P.C.C. nor of the A.I.C.C. Admittedly he was neither a member of
the Central Souvenir Committee to which the money was entrusted for
transmission to the State or the District Congress Committee nor was
he in any manner connected with any of the companies which paid the
money for publication of the advertisements. Shri Shyamsunder
Mahapatra lodged the complaint when respondent No. 1 was not the
F Chief Minister of the State. He had been suspended from the Congress
Party for his anti-party activities when respondent No. 1 was the Presi-
dent of the U.P.C.C. and the Chief Minister of Orissa. It is significant
that these monies were paid by various companies in the name of All
India Souvenir Committee and there is no material to indicate how the
All India Sauve.air Committee transferred these cheques to the respec-
G tive State Congress Committees or the District Congress Committees.
There is no complaint also from any !JDe of the companies .that the
monies paid by them were not utilised for the purpose for which they
were given or were utilised for a different purpose without their
consent.

H Now it is difficult to appreciate how the leamecl Special Public
MOHD. MUMfAZv. NANDINISATPATHY (OZA,J.] 699

Prosecutor could make an application for withdrawal from the pm- A
secution and the leam.ed Chief Judicial Magistrate. gave his consent to
such withdrawal on the ground that there is no evidence to sustain the
prosecution when a charge was already framed against respondent No. I
on the basis that in the opinion of the learned Chief Judicial Magis-
trate who framed the charge there was ground for presuming that
respondent No. 1 had committed the offences charged against her. B
There can therefore be no doubt that the withdrawal from the prosecu-
tion could not be permitted on the ground that there was insufficient'
or no evidence to sustain the prosecution. But since entir~ record is

- -.(
before us and the matter has been argued at great length on the basis
of the material on record we propose to consider whether the charge
was rightly framed and if we take the view that on the basis of the
material on record no charge could be framed we must quash the c
+ charge against respondent No. I.

It is clear from the material on record that various companies all
over India gave monies by way of cheques to the Souvenir Committee
of the All India Congress Committee. \Ye will assume for the purpose D
of argument_ that these amounts were given by the companies for the
purpose of publication Of advertisements in thf souvenir which were
entitled to be brought out by each District Congress Committee, but
there is no material on record at all to sh.ow that when these amounts
were distributed by the All India Congress Committee to the respec-
tive provincial Congress Committees and by the provincial Congress E
Committees in their tum tp the respective District Congress Commit-

--
tees, the entrustment ·of these amounts by the All India Congress
Committee was expressed to be for the specific purpose of publication
of advertisements in the souvenirs. When there is nothing to indicate
that the entrustment of these amounts to respondent No. I was for the
specific purpose of being utilised only for the purpose of publication of F
-:1
I \
advertisements in the souvenirs, it is difficult to see how any charge of
criminal breacli of trust can be sustained against respondent No. I. It is
not the case of the prosecution that any of these amounts were handed-
over by any of the companies to respondent No. l. The entrustment of
these amounts, if at all, was to the Souvenir Committee of the All
India Congress Committee .and respondent No. I could not therefore G
possibly be charged for utilising any of these amounts for a purpose
other than that for which it was entrusted to her. We are therefore of
the view that the charge framed against respondent No. I was totally
groundless and we would therefore quash it.

We .accordingly dismiss the appeal but instead of permitting the H
700 SUPREME COURT REPORTS [ 1987] 1 S.C.R.

A prose, ~tion to be withdrawn under Section 321 we ,quash the charge ~
frame,' against respondent No. 1 under Section 239 of the Code of
Criminal Procedure, 1973.

NATARAJAN, J: This is a case where the Special Public
Prosecutor (Vig.) C.D. Cuttack had filed a petition under Section 321
B Cr.P .C. and sought the permission of the Court for withdrawal of the
case against the first respondent when the case was posted for consi- +
. deration of charge. Under Section 321 Cr.P.C. a Public Prosecutor or
Assistant Public Prosecutor incharge of a case may, with the consent of
the court, at any time before the judgment is pronounced, withdraw
from the prosecution of any person either generally or in respect of -
c any one or more of the offences for which he is tried.

In this case the Special Public Prosecutor had set out in paras 5
and 6 of his application the relevant materials which had prevailed·
upon him to see~ withdrawal of prosecution of the case, after obtain-
ing the consent of the Court,. to subserve the interests of justice better.
D There is no material in the. case to show that the Special Public
Prosecutor was influenced by any improper motives for filing !he
application for withdrawal of the prosecution or that he had acted
against his will at the behest of any one else.

The learned Additional Chief Judicial Magistrate has bestowed
E judicial consideration over the matter and has thereafter passed a
reasoned order. While giving his consent for the withdrawal of the
prosecution the learned Magistrate has borne in mind the principles
laid down by this Court in R.K. Jain v. State, [1980] 3 SCR 982 which
has followed the earlier decision of this Court in State of Bihar v. Ram
Naresh Pandey, [ 1957] SCR 279. Before passing the order, the learned
F Magistrate has been fully alive to the responsibility of the Court before
it grants consent to an application made under Section 321 Cr.P.C. ..,,__
The portion extracted below from the order of the learned Additional : '
Chief Judicial Magistrate fully reveals this position:- ·

"While mentioning the facts in the petition, 1 have already
G indicated the reasons for which the prosecutor does not want
to prosecute. Now the Court has to consider whether con-
sent should be given or not. The discretion as to whether
consent should be given to withdraw is with the court but it
should be exercised judiciously and on correct legal princi-
ples. It is not to be given as a matter of course nor the court
H shall surrender its own independence of judgment."
MOHD. MUMTAZ v. NANDINI SATPATHY [NATARAJAN, J.] 701

}-- After making an objective 'assessment of the merit of the application, A
tbe learned Additional Chief Judicial Magistrate held that. the with-
drawal of the prosecution "would in no way affect any public interest
or improve any public confidence" and concluded as follows:-
'
"Considering all these circumstances if the public prose-
cutor most judiciously thought it proper to withdraw from B
--+- the case in my opinion, the court should be not a stumbling
block by disallowing its consent. I feel it just and proper to
allow the petition" .
... ,..(" The order. of the learned Additional Chief Judicial Magistrate
was affirmed, after a careful scrutiny by a learned Judge of the Orissa c
High Court in.Cr!. Rev. No. 21of1981 filed in the High Court. The
--..+- learned Judge observed that the ratio laid dow_n in R.K. Jain v. State
(supra) "would not justify entertaining this application when a public
prosecutor in his application had indicated that the evidence already
collected did nolsupport the prosecution and there was no prospect of
a conviction and 1he appropriate authority had taken the view that the D
prosecution in the broad ends of justice need not continue".

It may be thus seen that not only the learned Magistrate but also
the High Court has found, after a careful scrutiny of relevant factors
~ and circumstances, that the application for withdrawal of the prosecu-
tion made by the Special Public Prosecutor fully satisfied the tests laid E
down by this Court in State of Bihar v: Ram Naresh Pandey (supra)
reiterated in R.K. Jain v. State (supra) for its being allowed viz. that
... the executive function of the public prosecutor in applying for with-
· drawal of the prosecution has not been improperly exercised and that
it is not an attempt to interfere with the normal course of justice for
illegitimate reasons or purposes. F
-;·~
The appellant has failed to establish in this appeal that the con-
sent given by the learned Additional Chief Judicial Magistrate to the
Special Public Prosecutor for withdrawal of the prosecution suffers
from any error of law, patent or latent. Consequently, the appeal fails
and has, therefore, to be dismissed. G

. -J, P.S.S. Appeal dismissed .
'