Judgment This matter arises from a petition filed under section 494 , Criminal Procedure Code in C.C.No. 734 of 1967 on the file of the Munsif and Judicial Magistrate, First Class, Navaigund. The application was filed by the Assistant Public Prosecutor seeking permission to withdraw from the prosecution launched against the accused. The accused are the President and the Secretary of ‘Tadahal Yanne Utpadak Sahakari Sangha-. The Society is a co-operative society consisting of 10 members most of whom are related to each other. The society's accounts were audited in 1966 and a cash balance of Rs. 1,879-51 had not been credited to the Bank as required under the bye-laws of the society. Though the society had not transacted any business subsequent to 13th July, 1963, certain debit entries, were found regarding the purchase of , Ghana,- which were not supported by proper vouchers. The vouchers were disbelieved by the auditor in coming to the conclusion that a sum of Rs. 2,179.51 had been misappropriated by the accused. This is how the prosecution came to be launched at the instance of the departmental authorities. According to the prosecution, two sums of Rs. 1,400 and Rs. 800 were credited by the accused to the Karnatak Central Co-operative Bank, Ltd., and the Canara Bank Ltd., on 5th December, 1966 and 12th May, 1967, respectively. Thereafter, presumably on a request by the accused and also by the members of the society the concerned Assistant Registrar of Co-operative Societies, opined that it would be better to withdraw the prosecution in the. interests of the society. On 17th October, 1967, the concerned Superintendent of Police issued a memo. to the Assistant Public Prosecutor of the accused. This was followed up by an application by the Assistant Public Prosecutor with which we are concerned here. The learned Magistrate after addressing himself to the principle applicable to such cases and enunciated in a decision reported in The State of Bihar v. Ram Naresh Pandey1 came to the conclusion that the allowing of the application in question would be tantamount to an abuse of process of Court and thus dismissed the application. Against this order the present revision has been preferred. Against this order the present revision has been preferred. Sri J.S. Gunjal, the learned Counsel appearing in support of the petition, submitted that the lower Court while adverting to one of the principles enunciated in the decision of the Supreme Court above referred to had not fully appreciated the scope and ambit of section 494 , Criminal Procedure Code as clearly enunciated in the aforesaid decision. It was also his submission that he had not examined the relevant facts and circumstances relating to the case at all. According to him, the learned Magistrate had merely given expression to his feeling that it was an attempt to interfere with the normal course of justice for illegitimate reasons without actually stating what those reasons were. He proceeded to argue that it was implicit in some of the observations of the learned Magistrate that he had addressed himself to the question of the merits of the case, which was not permissible in the facts and circumstances of the case. Section 494 of the Criminal Procedure Code is an enabling provision which vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. It is also provided therein that on consent being granted, it had to be followed up by the di charge or acquittal of the accused, as the case may be. It has to be remembered that this section docs not lay down any guide-lines as to the ground on which a Public Prosecutor might apply for the consent of the Court. As to the nature of power exercisable by a Court in according or withholding consent, it is stated thus in the decision of the Supreme Court earlier referred to, namely, Ram Naresh Pandey's case1: “…………The function of the Court therefore, in granting its consent may well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of section 49, Criminal Proa dure Code would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of section 49, Criminal Proa dure Code would become considerably narrowed down in its application. In understanding and applying the section, two main features thereof have to be kept in mind. The initiative is that of the public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially.” (italics are mine). Again it is observed as page 393 thus: “The judicial function, therefore implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes…………..” After referring to the executive nature of the function exercisable by the Public Prosecutor in the context of section 494 , Criminal Procedure Code, their Lordships of the Supreme Court observed again as follows: “………………In all these matters he exercises discretionary function-in respect of which the initiative is that of the executive but the responsibility is his. His discretion in such matter has necessarily to be exercised with reference to such material as is by then available and is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse……It cannot be taken to place on the Court the responsibility for a prima facie determination of a triable issue. For instance the discharge that results there from need not always conform to the standard of”no prima facie case“under sections 209(1) and 253(1) , Criminal Procedure Code or of” groundlessness“under sections 209(2) and 253(2) Criminal Procedure Code this is not to say that a consent is to be lightly given on the application of the Public Prosecutor without a careful and proper scrutiny of the grounds on which the application for consent is made.” It is clear from the above enunciations of the Supreme Court that circumstances which do not clearly relate to the merits of the case would also become relevant under certain circumstances. In conceivable cases it may become necessary for a Public Prosecutor to withdraw from the prosecution on the ground of insufficient or total want of evidence against any or all of the accused before Court. In such cases it may perhaps become necessary to examine the evidence available thus far, for the purpose of finding out whether the grounds stated by the Public Prosecutor are based on a reasonable assessment of the position. Even such an examination is done only for the purpose of finding out that the discretion exercised by him is reasonable or proper. As already mentioned, such a scrutiny would not be strictly relevant in cases where the grounds on which the Public Prosecutor wants to withdraw from the prosecution arc dependent on the. exercise of his discretionary functions in respect of which, the initiative is that of the executive but the responsibility being his. Keeping in view the above principles, I shall now proceed to examine the facts and circumstances available in this case. As mentioned earlier, the discussion contained in the impugned order does not, in my opinion, satisfy the above tests. The learned Magistrate has briefly adverted to the ground of public policy being subserved by the withdrawal from the prosecution and rejected the application on the ground that a mere payment of the misappropriated amount by the accused would not amount to waiver of the offence, if any, committed. It is clear from this view of the learned Magistrate, that he had examined the question from the point of view of the merits of the case on the evidence already recorded by him. This is impermissible in the light of the principles enunciated by the Supreme Court. I am also satisfied from the facts and circumstances of the case that the order of the learned Magistrate cannot be sustained, even otherwise. It is not disputed that the society consists of 10 members, most of whom are relatives. The Society ceased to function as far back as 1963. Only on an audit conducted by the Department, after 3 years, a complaint was launched by them, the complaint was not made by any of the members of the Society. It is reasonable to assume that the members belong to a community of indigenous oil-millers. A high degree of literacy or understanding could not be readily attributed to them. Only on an audit conducted by the Department, after 3 years, a complaint was launched by them, the complaint was not made by any of the members of the Society. It is reasonable to assume that the members belong to a community of indigenous oil-millers. A high degree of literacy or understanding could not be readily attributed to them. It is possible that after the cessation of business in the year 1965, they ceased to take any serious interest in the matter. Some time after coming to know of the prosecution they took action to pass a resolution to safeguard the interest of the Society as well as the accused. This is a clear indication of the fact that the members of the Society had not viewed this matter of retention of cash balance and the purchase of “Ghana” seriously. In fact, by their silence for a period of over 3 years from 1963, they have tacitly acquiesced in that state of affairs. Moreover a mere contravention of the bye-law relating to the deposit of monies is one relating to the internal management of the Society. Further, if really something serious like a case of misappropriation or breach of trust were to occur it is primarily the concern of those who were in charge of the Society or its members. It is also clear from the opinion of the Assistant Registrar, who can be accepted as one knowing the real state of affairs, that it would be in public interest not to proceed with the prosecution further. This opinion is all the more entitled to weight when one remembers that it was at the instance of his Department that the prosecution was instituted. By this I do not mean to lay it down that the views of a complainant should necessarily be ascertained in matters relating to such withdrawals. When the Public Prosecutor was moved to take action under section 494 , Criminal Procedure Code. It was clear that the departmental authorities concerned with the co-operative movement and the investigation of offences had exercised their discretion in the discharge of their executive responsibilities in taking a decision as regards the withdrawal from prosecution. When the Public Prosecutor was moved to take action under section 494 , Criminal Procedure Code. It was clear that the departmental authorities concerned with the co-operative movement and the investigation of offences had exercised their discretion in the discharge of their executive responsibilities in taking a decision as regards the withdrawal from prosecution. In view of these facts and circumstances it is not reasonable or proper to conclude that the Public Prosecutor was actuated by any illegitimate motives in making the request for consent in accordance with the relevant provisions of the Criminal Procedure Code. I am therefore, clearly of the view that it is a fit case in which the learned Magistrate ought to have granted his consent to the withdrawal from prosecution of the case. For the above reasons, I set aside the order of the learned Magistrate. I am informed that a charge has been framed against the accused in respect of an offence under section 409 , Indian Penal Code. It is, therefore, necessary to remit the matter back to the lower Court concerned, with a direction that he should grant consent prayed for by the Assistant Public Prosecutor and make necessary further orders in accordance with section 494(2) , Criminal Procedure Code. It is ordered accordingly. S.V.S.-----Ordered accordingly.