JUDGMENT

GUPTA, J.:- By his order dated November 19, 1974 the First Additional Sessions Judge, Etawah, allowed the application of the Public Prosecutor, Ethawah, to withdraw the prosecution against respondents Chandan Lal and Baldeo Prasad. A revisional application directed against the order was dismissed in limine by the Allahabad High Court. In this appeal by special leave the propreity of the order allowing withdrawal of the prosecution is in question.

2. The facts of the case, relevant for the present purpose, are as follows. On the morning of May 27, 1970 two reports concerning the same incident were lodged in quick succession by two persons; the first report was made by one Ram Narayan at 6.15 A. M. and the next at 6.30 A.M. by the appellant Bansi Lal at Etawah police station. The reports said that respondent Chandan Lal and several others had forcibly caught hold of Bansi Lal s sister s husband Mewa Ram and dragged him inside Chandan Lal s house and when attracted by his screams several persons attempted to rescue Mewa Ram, the other respondent Baldeo Prasad and one Sukh Lal closed the door from inside. Bansi Lal s report added that one of the inmates of the house standing on the roof was threatening the crowd outside with a gun. On receipt of this information. Sub-Inspector K. K. Sharma accompanied by some constables hastened to Chandan Lal s house which they found closed from inside and surrounded by a crowd. Someone from the roof of the house started firming at the crowd and the police party. This man who was later identified as one Rameshwar was killed when the police returned fire. Entering Chandan Lal s house the police party found Mewa Ram lying seriously injured in a room where Chandan Lal, Baldeo Prasad and Sukh Lal were present. Chandan Lal, Baldeo Prasad and three other persons found inside the house, Sukh Lal, Gaya Prasad Damodar and Sitaram were all arrested and Mewa Ram was sent to the District Hospital for treatment. Mewa Ram died the same evening without gaining consciousness.

3. On the report of Sub-Inspector K. K. Sharma, a case under Sections 147, 148, 302, 342 and 149 of the Indian Penal Code was registered against the said five persons. Deputy Superintendent of Police, R. B. Malik who was deputed to investigate the case submitted charge-sheet against the accused in the Court of Additional District Magistrate (Judicial) on July 7, 1970. On May 22, 1974 the Additional District Magistrate (Judicial) committed the case to the Court of Session. On July 7, 1974 the Additional Sessions Judge, Etawah, on the application of the Public Prosecutor allowed the case against Sukh Lal to be withdrawn. On the next day, July 8, charges were framed against the remaining accused persons including the respondents under Sections 147, 342 and 302/149 of the Indian Penal Code. On November 18, 1974 the Public Prosecutor made an application before the Additional Sessions Judge, Etawah, praying for permission to withdraw the case against respondents Chandan Lal and Baldeo Prasad. The material part of the application reads :

"The prosecution does not want to produce evidence and continue the criminal matter against these accused (Chandan Lal and Baldeo Prasad)". On the next day, November 19, the Additional Sessions Judge allowed this application and acquitted Chandan Lal and Baldeo Prasad of the charges framed against them. Referring to certain facts which he described 372 as the defence case , the Additional Sessions Judge held that the case against Chandan Lal and Baldeo Prasad should be allowed to be withdrawn "because the prosecution is reluctant to prove its case against the said two accused persons" and it appeared "futile to refuse permission to the State to withdraw the prosecution". The correctness of this order is the only question for determination in this appeal.

4. Section 321 of the Code of Criminal Procedure, 1973 which corresponds to Section 494 of the earlier Code of 1898 and is in identical terms empowers the P