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 Special Judge permitting withdrawal of the case by the Special Public Prosecutor. The Vigilance Department of the State submitted a charge-sheet against respondent No. 1 on the allegation that she had no assets prior to her election as a member of the Rajya Sabha in the year 1962. The Vigilance Department of the State submitted a charge-sheet against respondent No. 1 on the allegation that she had no assets prior to her election as a member of the Rajya Sabha in the year 1962. Subsequently she was re-elected and became a Union Deputy Minister from January 1966 to June 1970 and a Union State Minister from June 1970 to June 1972. She became the Chief Minister of Orissa from 15-6-72 to 28-2-1973 and again from 6-3-74 to 26-12-76. Even before becoming the Chief Minister of Orissa she had no assets save and except a thatched roof house at Pithapur, Cuttack and a bank balance of Rs. 18,000/-. It was alleged that during her incumbency as Chief Minister, the bank balance increased as well as her other assets swelled up and it was alleged that in 1977 her net assets were to the tune of Rs. 7,54,735.85 p. which were disproportionate to her known sources of income. 9. In 1977 the respondent No. 1 left the Congress Party and joined the Congress for Democracy. In the Parliamentary elections in 1977, the Congress was defeated and Janata Party came to power and also in the Assembly elections which followed, the Congress lost and the Janata Party came to power in the State. It appears that although the Congress for Democracy which respondent No. 1 had joined, merged with the Janata Party, still many leaders of the Janata Party had a grudge against her as during her regime as Chief Minister when emergency was clamped, a number of leaders who were prominent in the Janata Party were put behind bars and ultimately for having assets disproportionate to her known sources of income, a prosecution was launched against her under Section 5(1)(d) read with Sec. 5(2) of the Prevention of Corruption Act. 10. One of the allegations on the basis of which the charge-sheet was filed was that on 15-7-74, respondent No. 1 passed an order in favour of M/s Ferro Alloys Corporation. This order was passed by her in her official capacity and it is alleged that because of this order M/s Ferro Alloys made a huge profit of about Rs. 4 crores and on 3-10-75 and 7-10-75, cheques in the aggregate sum of Rs. 48,000/ were given by M/s Ferro Alloys Corporation to Dharitri a newspaper for an advertisement which was published in the newspaper. 4 crores and on 3-10-75 and 7-10-75, cheques in the aggregate sum of Rs. 48,000/ were given by M/s Ferro Alloys Corporation to Dharitri a newspaper for an advertisement which was published in the newspaper. It was therefore alleged that respondent No. 1 obtained Rs. 48,000/- from M/s Ferro Alloys Corporation. 11. The second allegation against respondent No. 1 was that on 14-6-76 the Prime Minister requested respondent No. 1 to indicate the approximate value of her recently completed house at Bhubaneswar and no reply to this query is found on the record of the Prime Minister. The construction of the house started in September 1974 and ended on 29th February, 1976. The investment in the construction of the house is said to be Rs. 3,32,000/- and odd whereas according to respondent No. 1 she had spent an amount of Rs. 2,68,000/- and the difference of Rs. 64,000/-, according to the allegation of the prosecution was the amount acquired by respondent No. 1 by illegal and corrupt means as Chief Minister. It was alleged that the whole sum of Rs. 3,27,614/- is surreptitious and not disclosed in income-tax return for the financial years 1974-75 and 1975-76. It is also alleged that Navjat Printers which is owned by Samajbadi Society received a sum of Rs. 3,94,540/- between 6-3-74 and 29-2-76 in respect of orders placed by U.P.C.C. The allegation is that U.P.C.C. between 6-3-74 and 29-2-76, paid only Rs. 60,964/- and as regards the balance of Rs. 3,33,576/- it must have been acquired by respondent No. 1 herself and paid to Navjat Printers. 12. It was alleged that Shri Nachiketa Satpathy, son of respondent No. 1 purchased a flat at Kailash Apartments, New Delhi and for this purpose respondent No. 1 paid Rs. 50,000/- to her son in three instalments. Similarly it was alleged that on 15-3-75 respondent No. 1 paid Rs. 15,000/- to her other son Tathagat Satpathy and managed to get invested a sum of Rs. 33,000/- in different names fictitiously in M/s Rosambi Private Limited. An amount of Rs. 15,000/- is said to have been a payment by cheque. 13. It was alleged that in the house of her husband, cash was contained in two bags which was to the tune of Rs. 51,766/-. One of the bags there had a visiting card of the First Secretary of the USSR Embassy. An amount of Rs. 15,000/- is said to have been a payment by cheque. 13. It was alleged that in the house of her husband, cash was contained in two bags which was to the tune of Rs. 51,766/-. One of the bags there had a visiting card of the First Secretary of the USSR Embassy. This cash was discovered after respondent No. 1 ceased to be Chief Minister. The search was made on 8th July 1977 when respondent No. 1 had already ceased to be Chief Minister nearly nine months before that date. It was alleged that the cash must be deemed to have been of the ownership of respondent No. 1 and that it must have been acquired by her during the period when she was the Chief Minister. 14. It appears that when charge-sheet was filed against respondent No. 1, the Income-tax Department also issued notice for reopening of her assessments and examined the whole matter afresh and during the period that this case has been pending here, final orders have been passed by the Income-tax Department which explain in detail all the items of assets which according to the prosecution were disproportionate to the legitimate means of respondent No. 1. This matter came up before us along-with another case from Bihar, where we heard arguments at length on the question of withdrawal from the prosecution and its legal implications, but so far as the present case is concerned, in view of the facts as they emerge, we do not find it necessary to go into all these questions. The allegations can be broadly classified into three heads : 15. The first head relates to payments made to Dharitri and Navjat Printers or Samajbadi Society. These are clearly distinct institutions which could not be said to belong to respondent No. 1. It is not disputed that Dharitri is a newspaper which receives advertisements and payment for advertisement made to Dharitri could not possibly be correlated to respondent No. 1 or regarded as receipt of respondent No. 1. There is nothing at all to show that the payment received by Dharitri for advertisement (which in fact was published in Dharitri) had anything to do with respondent No. 1. 16. There is nothing at all to show that the payment received by Dharitri for advertisement (which in fact was published in Dharitri) had anything to do with respondent No. 1. 16. The second head of allegations relates to valuation of assets and the construction of the house and the third category to the monies received by the U.P.C.C. which are alleged to have been paid by respondent No. 1. Lastly there are similar items of monies paid to the sons and found in the possession of her husband. So far as these allegations are concerned, it may be pointed out that it was on the basis of these allegations that the income-tax Department reopened the assessments after giving notice and conducted detailed enquiries and ultimately passed a final order accepting her returns as correct and rejecting the allegations that she had suppressed any income from undisclosed sources. 17. It is also significant that the application for withdrawal was made by the Special Public Prosecutor in 1980 when respondent No. 1 had nothing to do with the party in power, as after the elections held in 1980, Congress-I came back to power in Orissa and J.B. Patnaik became the Chief Minister. Respondent No. 1 contested the Assembly election as a candidate of Congress (Urs) Party and was elected, defeating her Congress-I opponent Shri Profulla Bhanja and she was a member of Congress (Urs) (Opposition) during that period. This is to our mind a strong circumstance which indicates that the application for withdrawal was -made in furtherance of public justice and distinguishes the case of respondent No. 1 from that of Dr. Jagannath Misra in the Bihar case which is being disposed of by another judgment today. 18. The Income-tax Officer examined in detail each one of the items of assets said to have been unaccounted and suppressed and the order passed by the Income-tax Officer which has been placed on record clearly explains all the items as also entries pertaining to the house construction and other assets and shows that there is nothing to indicate that respondent No. 1 was possessed of assets disproportionate to his means. The application moved by the Special Public Prosecutor for withdrawal from the prosecution was therefore clearly bona fide and in furtherance of public justice and it was clearly a false and vexatious criminal prosecution which had been launched against respondent No. 1 which was sought to be halted. The learned Special Judge also on, these facts took the view that no useful purpose would be served by continuance of the prosecution and he accordingly permitted the withdrawal. The High Court too maintained the order of the learned Special Judge. We agree that in the light of the facts on record and the order passed by the Income-tax Officer which explains all the items of assets alleged to be unaccounted and suppressed, the charges against respondent No. 1 appear to be groundless. It is true that ordinarily when the exercise of considering the material on record for the purpose of determining whether there is sufficient material to sustain the prosecution can be performed by the Court under Section 239 of the Code of Criminal Procedure 1973 the Court should not allow the prosecution to be withdrawn under Section 321 as held by us in the judgment in Dr. Jagannath Misras case, which has been delivered today. 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. We do not therefore think it necessary or expedient to interfere with the order made by the learned Special Judge and confirmed by the High Court. 19. The appeal will therefore stand dismissed. NATARAJAN, J.:- 20. In the withdrawal petition filed on 15-11-80 and the supplementary withdrawal petition filed on 16-12-80 the Special Public Prosecutor (vig.) C.D., Cuttak has set out the factors which have prevailed with him to seek the consent of the Court to withdraw the prosecution launched in V.C.R. Case No. 33 of 1977 against the accused therein, viz.. Smt. Nandini Satpathy & Anr. 21. Smt. Nandini Satpathy & Anr. 21. The Additional Chief Judicial Magistrate has passed a detailed and considered order on 20-12-80 wherein he has fully discussed the matter and thereafter given consent to the withdrawal of the prosecution. The conclusion of the learned Magistrate is contained in para 12 which reads as follows :- "Taking the facts and circumstances of the case into consideration, I am of the view that the ends of public justice be met if the consent be given for withdrawal of the case." 22. The order of the learned Magistrate has been critically assessed by a learned Judge of the Orissa High Court in Crl. Rev. Nos. 21 and 22 of 1981 filed before the High Court. The learned Judge upheld the order of the Magistrate and has summed up the High Courts view as under : - "The observations of the Supreme Court (in R. K. Jain v. State - AIR 1980 SC 15 10: (1980) 3 SCR 982 ) would not justify entertaining this application when a Public Prosecutor in his application had indicated that the evidence already collected did not support the prosecution, - there was no prospect of a conviction and the appropriate authority in the broad ends of justice need not continue." 23. Section 321 makes it clear that an application for withdrawal of a case can be made by a Public Prosecutor or Assistant Public Prosecutor who is in charge of the case concerned, at any time before the judgment is pronounced. In other words. it means that the application for withdrawal of prosecution may be made at any time ranging between the court taking cognizance of the case till such time the court actually pronounces judgment. Consequently, it follows that even where reliable evidence has been adduced to prove the charges, the Public Prosecutor can seek the consent of the Court to withdraw the prosecution. The Section does not, therefore, lay down that an application for withdrawal of the prosecution should necessarily be made at the earliest stages of the case or only if the evidence is of a weak and infirm nature. 24. In his application a Special Public Prosecutor had set out the reasons which justified his filing an application under Section 321 of the Code to seek the consent of the Court for the withdrawal of the prosecution. 24. In his application a Special Public Prosecutor had set out the reasons which justified his filing an application under Section 321 of the Code to seek the consent of the Court for the withdrawal of the prosecution. The learned Magistrate has considered the matter judicially in the light of the decision of this Court in R. K. Jain v. State (1980) 3 SCR 982 : ( AIR 1980 SC 15 10) which has followed the earlier decision in State of Bihar v. Ram Naresh Pandey, 1957 SCR 279 : ( AIR 1957 SC 389 ). The order of the learned Magistrate has been approved and affirmed by the High Court. 25. There are no materials in the appeal to persuade me to hold that the order passed by the Additional Chief Judicial Magistrate or the High Court suffers from any error of law, patent or latent. In that view the appeal has to be dismissed. JUDGMENT IN CRIMINAL APPEAL NO. 49 OF 1983 VENKATARAMIAH, J. : - 26. 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. Such consent can be given at any time before the judgment is pronounced. The framing of the charge cannot be an impediment to give consent to such withdrawal as it is evident from S. 321(b) of the Code of Criminal Procedure,1973. 27. The appeal is, therefore, dismissed. KHALID, J.:- 28. I have just received (at 3.45 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. 27. The appeal is, therefore, dismissed. KHALID, J.:- 28. I have just received (at 3.45 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. 29. The question to be decided in this appeal is the scope of Section 321 of Criminal Procedure Code. Oza J. has set aside the permission granted by the Court to withdraw the prosecution under Section 321, Criminal Procedure Code, but allowed the appeal quashing the charge framed against respondent No. 1 under Section 239 of the Code of Criminal Procedure. I regret to state that I cannot re concile myself with this approach. 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. 30. This appeal along with Criminal Appeal No. 48 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. 31. In a separate judgment to be pronounced by me in Criminal Appeal No. 241 of 1983 : (reported in AIR 1987 SC 877 ), 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 Section 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. 32. What is to be decided in this case is whether the order passed by the Magistrate under Section 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. 32. I adopt the reasons given by me in Criminal Appeal No. 241 of 1983, relying upon the decision 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 Chief Judicial Magistrate, 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.) :- 33. The present appeal by special leave is directed against the judgment of the High Court of Orissa dated 14th May 1981 in Criminal Revision No. 21 of 1981 arising out of an order dated 20th September, 1980 passed by Additional Chief Judicial Magistrate, Bhubaneswar allowing an application filed by the Special Public Prosecutor wherein he prayed for withdrawal from the prosecution of the Vigilance Case No. 33 of 1977 against Respondent No. 1. By the impugned judgment, the High Court dismissed Criminal Revision filed by the appellant-petitioner and confirmed the order passed by Additional Chief Judicial Magistrate. 34. The Vigilance Department submitted a charge-sheet against respondent No. 1 on the allegation that All India Congress Party sometime before the General Election of the Parliament in the year 1971 set out a programme to raise funds for publication of Souvenir on behalf of the said party by each of the District Congress Committee under different provincial Congress Committees to educate people about the policy and programme of the Congress Party and the achievements in the context of 1971 Elections. It was alleged that the Souvenir Committee was formed and huge amount was collected from different companies at Delhi and Bombay for publication of advertisements in the Souvenirs. It is further alleged that Smt. Nandini Satpathy respondent No.1 misappropriated a sum of Rs. 1,02,200/- out of this amount collected from the companies and did not take steps for asking the Companies advertisements for publication in the Souvenirs. It is further alleged that Smt. Nandini Satpathy respondent No.1 misappropriated a sum of Rs. 1,02,200/- out of this amount collected from the companies and did not take steps for asking the Companies advertisements for publication in the Souvenirs. It is alleged that forgery was committed and Shri Ramanath Panda, respondent No. 2 was also alleged to have participated with respondent No. 1 in misappropriation of the aforesaid amount. On the information of Shri Shyamsunder Mohapatra, ex-Member of Parliament, a case was registered by the Vigilance Department and ultimately a charge-sheet was submitted against respondents Nos. 1 and 2. Shri B. M. Patnaik the then Advocate General of Orissa was appointed as a Special Public Prosecutor to conduct the case. By order dated 27-9-1979, the Additional Chief Judicial Magistrate framed charges under Sections 406, 467, 471 and 120 of the I. P.C. against respondent No. 1 and under Section 406 read with Section 34 of the I.P.C. against respondent No. 2. 35. After the General Elections of May/June, 1980, Shri Patnaik resigned from the office of Advocate General and also informed the State Government that he was not inclined to continue as Special Public Prosecutor in the case against Smt. Nandini Satpathy. In fact, though the case had been fixed on a number of dates between July and November, 1980 Shri Patnaik did not appear in the case on any one of these dates. 36. Thereafter respondent No. 4 who had been appointed as Special Public Prosecutor to conduct the cases of the Vigilance Department under Section 24(6) of the Code of Criminal Procedure was instructed by the Government in the Vigilance Department to take charge of this case. On 5-11-80, Shri P. K. Mohanty, Advocate sent a letter to the then Advocate General Shri Gobind Das requesting him for withdrawal of this case and by letter dated 6-11-1980 the learned Advocate General Shri Gobind Das forwarded this letter of Shri P. K. Mohanty, Advocate to the Chief Secretary who endorsed the letter to Inspector General (Vigilance) asking him for his comments. I. G. of Police (Vigilance) suggested that it would be proper to obtain the views of the Law Department, and after receipt of the comments of I. G. of Police (Vigilance) the Chief Secretary referred the matter to the Law Department for advice and the Legal Remembrancer after considering the legal position regarding the withdrawal of the prosecution observed as under : "As it sometimes happens, Political leaders are subjected to victimisation. Resort is made to law courts to harass political rivals. In view of the law laid down by the Supreme Court Government may take a policy decision to curb such political victimisation through law Courts and direct withdrawal irrespective of the question whether or not there is sufficient evidence in support of the prosecution. The instant case is one instituted against Smt. Nandini Satpathy, ex-Chief Minister of Orissa. It is possible for Government to take notice of the intense political rivalry between Smt. Nandini Satpathy, on the one hand and the erstwhile leaders of Janata Party on the other and that motive behind institution of such cases was political victimisation rather than vindication of the law. Government may suggest withdrawal of such cases to the concerned Public Prosecutor." 37. On receipt of this opinion from the Law Department, the file was endorsed by the Chief Secretary to the Law Minister and the Law Minister endorsed the file to the Chief Minister. After considering the matter from all angles, the Chief Minister passed an order dated 13-11-1980 that the case be withdrawn. By letter dated 15-11-1980. the I. G, (Vigilance) communicated the decision of the Government to withdraw the prosecution to the Special Public Prosecutor Shri Dibakar Bhuyan and requested him to take necessary action in the matter. After considering the matter from all angles, the Chief Minister passed an order dated 13-11-1980 that the case be withdrawn. By letter dated 15-11-1980. the I. G, (Vigilance) communicated the decision of the Government to withdraw the prosecution to the Special Public Prosecutor Shri Dibakar Bhuyan and requested him to take necessary action in the matter. After respondent No. 4 was put in charge of the case, he examined the case diary and the connected papers and on being satisfied that the charge of criminal breach of trust would fail against Smt. Nandini Satpathy, he filed an application under Section 321 of the Code of Criminal Procedure for withdrawal from the prosecution on having found that the charged amounts in this case are contributions to Souvenir Committee of the All India Congress Committee and that none of the members of the Central Souvenir Committee has complained of any dishonest use or fraud or injury or wrongful loss to the Committee or AICC for such non-utilisation of the funds and that the offences charged would ultimately depend upon the proof of dishonest intention or fraud or wrongful loss to the Central Souvenir Committee or to the AICC. On 16-12-1980 the Special Public Prosecutor made an application for additional ground to be added in the application for withdrawal and the additional ground alleged was that in public interest and in the changed circumstances, the State Government desired to withdraw from the prosecution. 38. After consideration of the case, the Additional Chief Judicial Magistrate by order dated 20th December, 1980 recorded his consent and permitted the Special Public Prosecutor to withdraw from the prosecution. Thereafter One Mohd. Mumtaz, the present appellant who was not a party to these proceedings filed a revision petition in the High Court of Orissa challenging the order of the Additional Chief Judicial Magistrate permitting withdrawal of the case. But by an order dated 14-5-81 the High Court dismissed the revision petition. Hence this appeal by special leave. 39. The F. I. R. in this case was lodged by one Shyamsunder Mohapatra against respondents Nos. 1 and 2 alleging that in January and February 1971 certain companies had issued 49 cheques in the names of Presidents of the District Congress Committees of Orissa totalling Rs. 1,08,200/- for advertisements to be published in Souvenirs to be brought out in each district by the respective District Congress Committee. 1 and 2 alleging that in January and February 1971 certain companies had issued 49 cheques in the names of Presidents of the District Congress Committees of Orissa totalling Rs. 1,08,200/- for advertisements to be published in Souvenirs to be brought out in each district by the respective District Congress Committee. These cheques were deposited in the account of Chairman, Souvenir Committee in Canara Bank, Bhubaneswar. It is alleged that respondent No. 1 misappropriated the amount by drawing in favour of self-bearer 9 cheques aggregating to Rs. 95,000/- and two bearer cheques aggregating to Rs. 32,854/- in the name of respondent No. 2. It was alleged that neither advertisements were published nor the amounts returned to the companies. It is significant to note that Shri Shyamsunder Mohapatra was neither an office-bearer of the U. P. C. C. nor of the A. I. C. C. Admittedly he was neither a member of the Central Souvenir Committee to which the money was entrusted for transmission to the State or the District Congress Committee nor was he in any manner connected with any of the companies which paid the money for publication of the advertisements. Shri Shyamsunder Mohapatra lodged the complaint when respondent No. 1 was not the Chief Minister of the State. He had been suspended from the Congress Party for his anti-party activities when respondent No. 1 was the President of the U. P. C. C. and the Chief Minister of Orissa. It is significant that these monies were paid by various companies in the name of All India Souvenir Committee and there is no material to indicate how the All India Souvenir Committee transferred these cheques to the respective State Congress Committees or the District Congress Committees. There is no complaint also from any one of the companies that the monies paid by them were not utilised for the purpose for which they were given or were utilised for a different purpose without their consent. 40. There is no complaint also from any one of the companies that the monies paid by them were not utilised for the purpose for which they were given or were utilised for a different purpose without their consent. 40. Now it is difficult to appreciate how the learned Special Public Prosecutor could make an application for withdrawal from the prosecution and the learned Chief Judicial Magistrate gave his consent to such withdrawal on the ground that there is no evidence to sustain the prosecution when a charge was already framed against respondent No. 1 on the basis that in the opinion of the learned Chief Judicial Magistrate who framed the charge there was ground for presuming that respondent No.1 had committed the offences charged. against her. There can therefore be no doubt that the withdrawal from the prosecution could not be permitted on the ground that there was insufficient or no evidence to sustain the prosecution. But since entire record is before us and the matter has been argued at great length on the basis of the material on record we propose to consider whether the charge was rightly framed and if we take the view that on the basis of the material on record no charge could be framed we must quash the charge against respondent No. 1. 41. It is clear from the material on record that various companies all over India gave monies by way of cheques to the Souvenir Committee of the All India Congress Committee. We will assume for the purpose of argument that these amounts were given by the companies for the purpose of publication of advertisements in the souvenirs which were entitled to be brought out by each District Congress Committee, but there is no material on record at all to show that when these amounts were distributed by the All India Congress Committee to the respective provincial Congress Committees and by the provincial Congress Committees in their turn to the respective District Congress Committees, the entrustment of these amounts by the All India Congress Committee was expressed to be for the specific purpose of publication of advertisements in the souvenirs. When there is nothing to indicate that the entrustment of these amounts to respondent No. 1 was for the specific purpose of being utilised only for the purpose of publication of advertisements in the souvenirs. When there is nothing to indicate that the entrustment of these amounts to respondent No. 1 was for the specific purpose of being utilised only for the purpose of publication of advertisements in the souvenirs. It is difficult to see how any charge of criminal breach of trust can be sustained against respondent No. 1. It is not the case of the prosecution that any of these amounts were handed over by any of the companies to respondent No. 1. The entrustment of these amounts, if at all, was to the Souvenir Committee of the All India Congress Committee and respondent No. 1 could not therefore possibly be charged for utilising any of these amounts for a purpose other than that for which it was entrusted to her. We are therefore of the view that the charge framed against respondent No. 1 was totally groundless and we would therefore quash it. 42. We accordingly dismiss the appeal but instead of permitting the prosecution to be withdrawn under Section 321 we quash the charge framed against respondent No. 1 under Section 239 of the Code of Criminal Procedure, 1973. NATARAJAN, J.:- 43. This is a case where the Special Public Prosecutor (Vig.) C. D., Cuttack had filed a petition under Section 321, Cr. P.C. and sought the permission of the Court for withdrawal of the case against the first respondent when the case was posted for consideration of charge. Under Section 321, Cr. P.C. a Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the court, at any time 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. 44. In this case the Special Public Prosecutor had set out in paras 5 and 6 of his application the relevant materials which had prevailed upon him to seek withdrawal of prosecution of the case, after obtaining the consent of the Court, to subserve the interests of justice better. There is no material in the case to show that the Special Public Prosecutor was influenced by any improper motives for filing the application for withdrawal of the prosecution or that he had acted against his will at the behest of any one else. 45. There is no material in the case to show that the Special Public Prosecutor was influenced by any improper motives for filing the application for withdrawal of the prosecution or that he had acted against his will at the behest of any one else. 45. The learned Additional Chief Judicial Magistrate has bestowed judicial consideration over the matter and has thereafter passed a reasoned order. While giving his consent for the withdrawal of the prosecution the learned Magistrate has borne in mind the principles laid down by this Court in R. K. Jain v. State (1980) 3 SCR 982 : ( AIR 1980 SC 15 10) which has followed the earlier decision of this Court is State of Bihar v. Ram Naresh Pandey 1957 SCR 279 : ( AIR 1957 SC 389 ). Before passing the order, the learned Magistrate has been fully alive to the responsibility of the Court before it grants consent to an application made under Section 321, Cr. P.C. The portion extracted below from the order of the learned Additional Chief Judicial Magistrate fully reveals this position :- "While mentioning the facts in the petition, I have already indicated the reasons for which the prosecutor does not want to prosecute. Now the Court has to consider whether consent should be given or not. The discretion as to whether consent should be given to withdraw is with the Court but it should be exercised judiciously and on correct legal principles. It is not to be given as a matter of course nor the court shall surrender its own independence of judgment." After making an objective assessment of the merits of the, application, the learned Additional Chief Judicial Magistrate held that the withdrawal of the prosecution "would in no way affect any public interest or improve any public confidence" and concluded as follows :- "Considering all these circumstances if the public prosecutor most judiciously thought it proper to withdraw from the case in my opinion, the court should not be a stumbling block by disallowing its consent. I feel it just and proper to allow the petition". 46. The order of the learned Additional Chief Judicial Magistrate was affirmed, after a careful scrutiny by a learned Judge of the Orissa High Court in Crl. Rev. No. 21 of 1981 filed in the High Court. I feel it just and proper to allow the petition". 46. The order of the learned Additional Chief Judicial Magistrate was affirmed, after a careful scrutiny by a learned Judge of the Orissa High Court in Crl. Rev. No. 21 of 1981 filed in the High Court. The learned Judge observed that the ratio laid down in R. K. Jain v. State (supra) "would not justify entertaining this application when a public prosecutor in his application had indicated that the evidence already collected did not support the prosecution and there was no prospect of a conviction and the appropriate authority had taken the view that the prosecution in the broad ends of justice need not continue". 47. It may be thus seen that not only the learned Magistrate but also the High Court has found, after a careful scrutiny of relevant factors and circumstances, that the application for withdrawal of the prosecution made by the Special Public Prosecutor fully satisfied the tests laid down by this Court in State of Bihar v. Ram Naresh Pandey ( AIR 1957 SC 389 ) (supra) reiterated in R. K. Jain v. State ( AIR 1980 SC 15 10) (supra) for its being allowed viz. that the executive function of the public prosecutor in applying for withdrawal of the prosecution has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. 48. The appellant has failed to establish in this appeal that the consent given by the learned Additional Chief Judicial Magistrate to the Special Public Prosecutor for withdrawal of the prosecution suffers from any error of law, patent or latent. Consequently, the appeal fails and has, therefore, to be dismissed. Appeals dismissed.