The judgment established that the power to withdraw from prosecution must be exercised by the Public Prosecutor and with the consent of the court to prevent abuse, and the withdrawal should further the object of the law and be based on proper grounds supported by material.

1. In August 1968, various unions of employees of the Central Government gave notice of a one-day strike on the 19th September to press some demand of theirs, a token strike as it is called, being in token or earnest of what they could and would do if the demand was not met. The Central Government, it would appear, chose to meet the threat rather than the demand. On the 13th September, the President promulgated the Essential Services Maintenance Ordinance, 1968, S.3 whereof empowered the Central Government to prohibit strikes in any essential service as defined in S.2, and S.4, 5 and 6 whereof provided for penalties for persons participating in any such prohibited strike as well as for persons instigating and financing such strikes. On the same day the Central Government issued an order under S.3 of the Ordinance, in effect prohibiting strikes in any service in connection with the affairs of the Union, although some services, like the postal, telegraph or telephone service, were specifically mentioned. This notwithstanding, the threatened strike did take place it is claimed that it was a signal success in this State as elsewhere in the country. As a result, numerous complaints (information, in the language of the Criminal Procedure Code; but we are using the words, "complaint" and, "complainant" in the popular sense, not in the sense in which, "complaint" is defined in S.4 (h) of the Code) were made to the police throughout the State by various officers of the Central Government departments concerned, of offences under the Ordinance and under other laws. These were investigated, and, in due course, a large number of charge-sheets were filed by the police before the magistrates having jurisdiction against the strikers for offences under S.4 or 5 or both of the Ordinance, some of them also for offences under other laws, such as S.143,147, 294, 323, 341, 353, 448 and 506 of the Indian Penal Code and S.25 of the Indian Telegraph Act. On the 24th December, the State Government decided to withdraw cases not involving serious personal violence or destruction of property and it directed the Inspector-General of Police to "take immediate action for the withdrawal of the cases accordingly through the Public Prosecutors concerned" Accordingly, towards the end of January or early in February 1969, applications were made to the several courts by the Public Prosecutors concerned (namely, the Assistant Public Prosecutors in charge of the cases) under S.494 of the Criminal Procedure Code for the necessary consent. In most of the cases the applications were allowed despite opposition by the complainants who appeared by counsel; and the accused persons were acquitted. The complainants have come up in revision against the grant of the consent and the consequent acquittal. We are here dealing with sixteen such cases, Crl. R. P. Nos. 201 to 206 being in respect of employees of the Accountant General's Office, Trivandrum, and the rest, of employees of the Posts and Telegraphs department.

2. S.494, Criminal Procedure Code, runs as follows:

"Any Public Prosecutor may, with the consent of the Court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences." As pointed out by the Supreme Court in State of Bihar v. Ram Naresh Pandey AIR. 1957 SC. 389, two things are clear from a plain reading of the section. The first is that the power to withdraw is conferred on the Public Prosecutor and on no one else; and, although this is an executive power, it is a power