E.S.VENKATARAMIAH,J.

(1) 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 interpreting S. 494 of the Code of Criminal Procedure, 1898 and the decision in Rajender Kumar fain v. State interpreting S. 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

(3) I have just received (at 7.40 p.m. on 19/12/1986) 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 20/12/1986, I do not have time to write a detailed Judgment.

(4) THE question to be decided" in this appeal is the scope of S. 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 1 and the charges against respondent 1 appear to be groundless and respondent 1 would, therefore, in any event be entitled to be discharged under S. 239.

A cursory glance at S. 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 were directed to be posted before a Constitution bench to consider the scope of S. 321, Criminal Procedure Code. That being so, I do not think it proper to abandon that pursuit and take refuge under S. 239 of Criminal Procedure Code.

(6) IN a separate Judgment to be pronounced by me in Criminal Appeal.No. 241 of 1982 , I have outlined the scope of S. 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 Procedure 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.

(7) I adopt the reasons given by me in Criminal Appeal No. 241 of 1982 , relying upon the decisions State of Bihar v. Ram Naresh Pandey and Rajender Kumar 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

(8) (ON behalf of Bhagwati, C.J. and himself)-The present appeal by special leave is directed against the Judgment and Order of the High court of Orissa dated 14/05/1981 in Criminal Revision No. 22 of 1981 arising out of an order dated 20/12/1980 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 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 Special Judge permitting withdrawal of the case by the Special Public Prosecutor. The Vigilance Department of the State submitted a charge-sheet against respondent 1 on the allegation tha