JUDGMENT

KRISHNA IYER, J.: —What constrains us to explain at some length our reasons for rejection of leave to appeal in this case is the desideratum that every executive challenge to justice-in-action is a call to the court to strengthen public confidence by infusing functional freshness into the relevant law sufficient to overpower the apprehended evil.

2. The house of the petitioner is said to have been burgled and he alleges that he lost many valuables. The police, on information being laid, searched and recovered the property. Eventually, charges were framed by the trial court against one Hussan Lal, a jeweller, and one Madan Lal, an alleged collaborator (respondents Nos. 2 and 3 in this petition) under S. 411 I.P.C. and one Ashok Kumar under S. 380, I.P.C. During the pendency of the criminal case, the Assistant Public Prosecutor applied for withdrawal from prosecution under Section 321, Cr. P. C. on the ground that on fresh investigation by a senior officer the alleged search and seizure were discovered to be a frame-up by the concerned police officer in order to pressure the accused Hussan Lal to withdraw a certain civil litigation. On the court requiring a fuller application, the Assistant Public Prosecutor made a fresh and more detailed petition for withdrawal which was eventually granted by the trial court, despite the petitioners remonstrance that the withdrawal was prompted by the political influence wielded by Hussan Lal leading to instructions from high quarters to the Assistant Public Prosecutor to withdraw from the case concerning that accused. It was alleged that in carrying out the instructions the Assistant Public Prosecutor did not apply an independent mind. The court nevertheless accepted the request of the Assistant Public Prosecutor and directed acquittal of Hussain Lal, while continuing the case against the remaining two accused. The order was unsuccessfully assailed in revision before the High Court by the petitioner. Undaunted by that dismissal, he has moved this court under Art. 136 of the Constitution. In view of the starting disclosure on either side we have listened at some length to the oral submissions in supplementation of the affidavits in the record.

3. The three focal points of argument are whether (i) a case which pends in court can be subject to a second police investigation without the judge even knowing about it, (ii) political considerations of the executive vitiate the motion for withdrawal of pending proceeding, and (iii) the District magistrates order to withdraw from a case communicated to the Public Prosecutor and carried out by him, is compliance with S. 4.

4. When a crime is committed in this country, the assessment of guilt and the award of punishment or, alternatively the discharge or acquittal of the accused are part of the criminal justice process administered by the Courts of the land. It is not the function of the executive to administer criminal justice and in our system, judges are not fungible, as Justice Douglas in Chandler v. Judicial Council of the Tenth Circuit of the U. S. (1970) 398 US 74, asserted;

"Judges are not fungible; they cover the constitutional spectrum; and a particular Judges emphasis may make a world of difference when it comes to rulings on evidence, the temper of the courtroom, the tolerance for a proffered defence, and the like. Lawyers recognize this when they talk about "shopping" for a Judge; Senators recognize this when they are asked to give their advice and consent to judicial appointments; laymen recognize this when they appraise the quality and image of the judiciary in their own community."

When a case is pending in a criminal court, its procedure and progress are governed by the Criminal Procedure Code or other relevant statute. To intercept and recall an enquiry or trial in a court, save in the manner and to the extent provided for in the law, is itself a violation of the law. Whatever needs to be done in accordance with the law. The funct