Judgment

TULZAPURKAR, J. (Minority view):- By this appeal, preferred on the basis of the special leave granted to him, the appellant is challenging the withdrawal from the prosecution of respondents Nos. 2, 3 and 4 in a criminal case under S. 321 of the Criminal Procedure Code, 1973.

2. After obtaining the requisite sanction from the Governor, on 19th Feb., 1979 a charge-sheet in Vigilance P. S. Case No. 9 (2) 78 was filed by the State of Bihar against respondent No. 2 (Dr. Jagannath Misra), respondent No. 3 (Nawal Kishore Sinha), respondent No. 4 (Jiwanand Jha) and three others (K. P, Gupta, since deceased, M. A. Haidari and A. K. Singh, who later became approvers) for offences under Sections 420/466/471/109/120-B, I. P. C. and under S. 5 (1) (a), 5 (1) (b) and 5 (1) (d) read with S. 5 (2) of the Prevention of Corruption Act, 1947. Inter alia, the gravamen of the charge against the respondent No. 2 was that at all times material he was either a Minister or the Chief Minister of Bihar and in that capacity by corrupt or illegal means or by otherwise abusing his position as a public servant, he, in conspiracy with the other accused and with a view to protect Nawal Kishore Sinha in particular, sought to subvert criminal prosecution and surcharge proceedings against Nawal Kishore Sinha and others, and either obtained for himself or conferred on them pecuniary advantage to the detriment of Patna Urban Co-operative Bank, its members, depositors and creditors and thereby committed the offence of criminal misconduct under Section 5 (1) (d) read with S. 5 (2) of the Prevention of Corruption Act, 1947 and in that process committed the other offences specified in the charge-sheet, including the offence of forgery under S. 466. I. P. C. Cognizance of the case was taken on 21st Nov., 1979 by the learned Chief Judicial Magistrate-cum-Special Judge (Vigilance), Patna, who issued process against the accused but before the trial commenced the State Government, at the instance of respondent No. 2, who in the mean time had come to power and had become the Chief Minister, took a decision in Feb., 1981 to withdraw from the prosecution for reasons of State and public policy. Though initially Shri Awadhesh Kumar Dutt, Senior Advocate, Patna High Court, had been appointed as a Special Public Prosecutor by the previous Government for conducting the said case, the State Government (now headed by respondent No. 2) without cancelling Shri Dutts appointment as Special Public Prosecutor, on 24th Feb., 1981 constituted a fresh, panel of lawyers for conducting cases pertaining to Vigilance Department and Shri Lalan Prasad Sinha, one of the advocates so appointed on the fresh panel was allotted the said case and was informed of the Governments said decision and on 26th March, 1981 he was further requested to take steps for the withdrawal of the case after he had considered the matter and satisfied himself about it. On l7th June, 1981 Shri Lalan Prasad Sinha made an application under Sec. 321, Cr. P. C., 1973 to the Special Judge seeking permission to withdraw from the prosecution of respondents Nos. 2, 3 and 4 in the case on four grounds, namely, (a) lack of prospect of successful prosecution in the, light of the evidence, (b) 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; and the learned Special Judge by his order dated 20th June, 1981 granted the permission. A Criminal Revision 200 (No. 874/1981) preferred by the appellant against the said order was dismissed in limine by the High Court on 14th Sept., 1981. It is this withdrawal from the prosecution permitted by the learned Special Judge and its confirmation by the High Court that are being challenged in this appeal.

3. Counsel for the appellant raised three or four cont