Judgement

VENKATARAMIAH, J.:- I agree that this appeal has to be dismissed. I am of the view that the decision in State of Bihar v. Ram Naresh Pandey, 1957 SCR 279 : (AIR 1957 SC 389) interpreting section 494 of the Code of Criminal Procedure, 1898 and the decision in R. K. Jain v. State through Special Police Establishment (1980) 3 SCR 982: (AIR 1980 SC 15 10) 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 Prosecutor had applied his mind to the case before applying for withdrawal and the Chief Judicial Magistrate has not committed any error in giving his consent to such withdrawal.

2. The appeal is, therefore, dismissed.

KHALID, J. :- 3. I have just received (at 7.40 p.m. on 19th December, 1986) a draft judgment by Oza. J. in the above case. I 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.

4. The question to be decided in this appeal is the scope of Section 321 of Criminal Procedure Code, and I do not agree with the following observation of Oza, J. since there is no question of setting aside of the order passed by the learned Additional Special Judge, Bhubaneswar :

"........But in the present case, there is no point in setting aside the withdrawal and sending the case back to the learned Special Judge because after considering the entire material on record in detail we are of the view that there is no material at all on the basis of which it could be said that there is a prima facie case against respondent No. 1 and the charges against respondent No. 1 appear to be groundless and respondent No. 1 would, therefore, in any event be entitled to be discharged under Section 239 ......."

A cursory glance at Section 321 will satisfy anyone that consent can be given for withdrawal from the prosecution of a case, not only when the charge is not framed, but even after the charge is framed and at any time before the judgment.

5. This appeal along with Criminal Appeal No. 49 of 1983 was 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 Section 239 of Criminal Procedure Code.

6. 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 S. 321, Criminal P.C., 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.

7. I adopt the reasons given by me in Criminal Appeal No. 241 of 1983, relying upon the decisions reported in 1957 SCR 279 : (AIR 1957 SC 389) (State of Bihar v. Ram Naresh Pandey) and in (1980) 3 SCR 982 : AIR 1980 SC 15 10 (R. K. Jain v. State) and uphold the order of withdrawal passed by the Additional Special Judge, Bhubaneswar, and upheld by the High Court in revision, and dismiss the appeal.

OZA, J. (For himself and on behalf of P. N. Bhagwati, C. J.) :- 8. The present appeal by special leave is directed against the judgment and order of the High Court of Orissa dated 14th May 1981 in Criminal Revision No. 22 of 1981 arising out of an order dated 20th December, 1980 of the Additional Special Judge, Bhubaneswar allowing an application filed by the Special Public Prosecutor praying for withdrawal from prosecution in Case No. 13 of 1979 against respondent No. 1. By the impugned judgment the Honble High Court dismissed the revision petition filed by the appellant and confirmed the order passed by the learned Additional S