Order The petitioner, a member of the Bar has filed the writ petition as party in person, praying for the issue of a writ of declaration to declare Sec.321 of Criminal Procedure Code as ultra vires to the Constitution, in particular to Art. 14 of the Constitution of India. 2. The petitioner claims that he joined the Police Department in June, 1958 as Sub-Inspector of Police and retired as Superintendent of Police in September, 1993, and that he secured a law degree in 1978 and had enrolled himself as an advocate in the Tamil Nadu Bar Council, during December, 1994. 3. The petitioner challenges Sec.321 of the Criminal Procedure Code as discriminatory and offends Art. 14 of the Constitution. The said provision confers power on the Government to withdraw even heinous criminal offences such as brutal murders, etc. from the court even during the pendency of cases violating the cardinal principles enshrined in Art.14. 4. It is alleged that the politicians including ministers, members of Legislative Assembly, Industrialists and others who are close to the seat of power go scot-free without punishment in heinous criminal cases. 5. The petitioner refers to the following incidents and submits that they will highlight the abuse of power and the Government had exercised powers in furtherance of some ulterior objects not contemplated by the provision but collateral under the guise of public interest and policy, that during 1965, the D.M.K party raised anti-hindi agitation and rioting wherein two Sub-Inspectors of Police in Tiruppur town were burnt to death, besides other incidents of heinous crimes, which prosecutions were withdrawn even after filling of chargesheet by the D.M.K party, which came to power during 1967. 6. The petitioner refers to the second incident and submitted that during 1976, the D.M.K Ministry led by Thiru M.Karunanidhi was dismissed by the Central Government and the C.B.I, formed the special investigation team to enquire into the corrupt practices of the then Chief Minister, his cabinet colleagues and other party functionaries, that an officer of the higher judiciary was also subjected to investigation and charge sheeted, that after some years, on the basis of some understanding and adjustment, all the cases pending against Thiru M.Karunanidhi has been withdrawn by the C.B.I., but the judicial officer had not been spared, and that this is discriminatory and this is nothing but abuse of discretion to fulfil its ulterior motive. 7. 7. The third incident put forth by the petitioner is that during the reign of late M.G. Ramachandran, a report submitted by C.J.R. Paul, who was appointed to enquire into the alleged death of Subramania pillai, a temple Jewel Verification Officer, was leaked out by some Secretariat Officials and certain others who were close to D.M.K party were found responsible and they were prosecuted and that after the fall of Government led by M.G. Ramachandran, the case was withdrawn against all the accused on public grounds and public policy. 8. The fourth incident alleged by the petitioner is that one Robin Moin, a relative of Thiru Kalimuthu, former A.I.A.D.M.K. Minister and former State Student Wing Secretary of D.M.K Party, cheated using fake motor vehicle permits to the tune of several lakhs, that this case was investigated by the C.B.I. Madras, that when the said Robin Moin was under C.B.I, custody in Egmore Police Station, the Former Chief Minister Mr.M.G. Ramachandran for the reasons best known to him, had visited the Egmore Police Station and had met Robin Moin and that the result of the case is not known. 9. The fifth incident alleged by the petitioner is that during 1986, a powerful time bomb was planted in a train bound for Karur, which exploded killing two innocent passengers and injuring several others in the compartment, that a criminal case was registered in C.R.No.1850 of 1986 by the Trichy Railway Police and it was investigated by the State C.B.C.I.D., Trichy Unit, that the investigation disclosed that Thiru L.Ganesan of Thanjavur, Thiru Malarmannan, the then M.L.A. of Trichy were responsible and they were also prosecuted, that the said Thiru L.Ganesan later became Parliamentary Secretary in 1989, and using his political connections, persuaded the then Railway Minister to instruct the General Manager, Southern Railway to give consent for the withdrawal of the case and that the case was withdrawn as against all the accused. 10. 10. The sixth incident set out by the petitioner is that Thiru K.Ramamurthy of Congress alongwith other trustees of Pallava Samooganala Arakkattalai, Salem and a bank official was charge-sheeted under Sec.409 of the Indian Penal Code by the State C.B.C.I.D. unit of Salem on 18.4.1990, that the petition tiled under Sec.482 of Criminal Procedure Code to quash the proceedings had been dismissed by this Court, that the prosecution was launched and continued when the D.M.K. was in power, that subsequently when Selvi J.Jayalalitha became the Chief Minister during 1991, for the reasons best known to her, ordered the withdrawal of criminal case against Thiru Ramamurthy and others and that the case was withdrawn. 11. The seventh incident alleged by the petitioner is that during 1989-90, Thiru A.C.Muthiah and his associates managed M/s. Agri Furane Industry, that certain irregularities were found, that a complaint was lodged with the C.B.C.I.D., Madras, that the then Chief Minister Selvi J.Jayalalitha had ordered to withdraw the criminal cases against Thiru A.C.Muthiah and others. 12. The petitioner also referred to the news item reported in “The Frontline” dated 16.5.1997, where withdrawal of the cases against Bal Thackarey has been reported by the Maharashtra Government. The petitioner further referred to the reports in Tamil dailies, weeklies as well as T.V. channels that there is a move to withdraw cases against Sandalwood smuggler Veerapan, who had killed mercilessly Government servants and innocent public for his personal gains. 13. The petitioner points out that the reasons behind the withdrawal of the prosecution cases must be satisfactory, although in general terms and provisions of Sec. 321 of the Criminal Procedure Code do not require the Public Prosecutor or Assistant Public Prosecutor to seek the consent of the court in the matter of withdrawal of the prosecution. 14. It is further pointed out by the petitioner that reasons for withdrawal must satisfy the judicial conscience of the court, that any political offence where such a policy like, mass-agitations, community riots, industrial conflicts, students dissatisfaction, etc. there may be some justification not to prosecute the offenders, but for the offences against the society such as crimes, it is the bounden duty of the State to prosecute and it would be highly improper to get the case withdrawn. 15. there may be some justification not to prosecute the offenders, but for the offences against the society such as crimes, it is the bounden duty of the State to prosecute and it would be highly improper to get the case withdrawn. 15. The petitioner also points out that the courts can exercise its power to prosecute and call for records of evidence and interfere with such prosecution withdrawals. It is further pointed out that the court being the repository of justice, has to thoroughly satisfy itself for withdrawal of prosecution cases and that the prosecutor has acted as a free agent, without any undue influence or pressure from the Government or any outside body. 16. Prior to the amendment of Code of Criminal Procedure, Sec.494 of the Code of Criminal Procedure had no proviso and a proviso has been added to Sec.321 of the Criminal Procedure Code, which is being abused by the Government and it is a colourable exercise for purposes not contemplated by the provision and offends Art. 14 of the Constitution by abuse of its discretion selectively for one category, namely persons close to seat of power. 17. It is further pointed out that if the cases referred to above, were allowed to go before the criminal courts, all the accused would have definitely been convicted and imprisoned by due process of law, that to avoid the conviction, the accused persons had conveniently taken shelter under Sec.321 of Criminal Procedure Code and had used the said provision as a ploy, and that the said provision has been used as a tool by politicians to escape punishment. 18. According to the petitioner, double standards are being followed as the Government, so far, had not withdrawn any case pending in the criminal court for a lay person other than cases against politicians and the provision ofSec.321 of Criminal Procedure Code is discriminatory in character and violative of fundamental principles enshrined in the Constitution. 19. It is nowhere suggested by the petitioner that Sec. 321 of the Code of Criminal Procedure as such, is violative of Art.14 or Art.21 or any other provisions in Part III of the Constitution, nor it is contended that the said provision is ultra vires. 19. It is nowhere suggested by the petitioner that Sec. 321 of the Code of Criminal Procedure as such, is violative of Art.14 or Art.21 or any other provisions in Part III of the Constitution, nor it is contended that the said provision is ultra vires. The contents of the entire affidavit relate to alleged abuse in exercise of power conferred under Sec.321 of the Code of Criminal Procedure and only on that basis, the petitioner seeks for a declaration declaring thatSec. 321 of the Code of Criminal Procedure is ultra vires to the Constitution and violative of Art.14 of the Constitution. 20. It is also to be pointed out that the petitioner, who had appeared in person had not substantiated as to how Sec. 321 of the Code of Criminal Procedure is violative of Art.14 of the Constitution. The petitioner mainly pleaded that the power under Sec.321 of the Code of Criminal Procedure has been abused or misused and such an abuse in individual cases is violative of Art.14 of the Constitution. As according to the petitioner, in cases where the accused persons have nexus to the persons in power, the prosecution against them are being withdrawn but very many innocent, poor and those who had no nexus to the persons in power has to face the ordeals of trial. 21. The petitioner referred to the following cases: (i) Ramamurthy, K. v. State Ramamurthy, K. v. State, 1991 L. W. (Crl.) 98. (ii) Maulana Basha v. State Maulana Basha v. State, 1992 L. W. (Crl.) 499. (iii) Vaidyalingam v. Chockalingam Vaidyalingam v. Chockalingam, 1996 L.W. (Crl.) 309. 22. All the above cited authorities, which relate to withdrawal of prosecution in individual cases and where the individuals have failed in their attempt to quash the proceedings by invoking the powers under Sec.482 of the Code of Criminal Procedure and thereafter, prosecutions were withdrawn. The above cited decisions in no way support the petitioner's plea that Sec.321 of the Code of Criminal Procedure is either ultra vires or offends Art.14 of the Constitution. 23. Sec.494 of the Code of Criminal Procedure, 1898 provided for withdrawal from prosecution by the Public Prosecutor. While repealing the Code of Criminal Procedure, 1898 and introducing the Code of Criminal Procedure, 1973, Sec.494 had been replaced with Sec.321 and a proviso had been introduced to Sec.321 of the Code Criminal Procedure. 24. 23. Sec.494 of the Code of Criminal Procedure, 1898 provided for withdrawal from prosecution by the Public Prosecutor. While repealing the Code of Criminal Procedure, 1898 and introducing the Code of Criminal Procedure, 1973, Sec.494 had been replaced with Sec.321 and a proviso had been introduced to Sec.321 of the Code Criminal Procedure. 24. In M.N.S. Nair v. P.V. Balakrishnan M.N.S. Nair v. P.V. Balakrishnan, A.I.R. 1972 S.C. 496: 1972 Crl.L.J. 301, the scope of Sec.494 was considered by a Division Bench of the Apex Court. The Apex Court has held thus: “The power constrained in the Section gives a general executive direction to withdraw from the prosecution subject to the consent of the court which may be determined on many possible grounds and is therefore wide and uncontrolled by any other provision in the code not is it in pari materia with Sec.333 which enables the Advocate General at any stage in a trial by the High Court and before the return of the verdict to inform the court if he thinks fit on behalf of the Government that he will not further prosecute the defendant upon the charge and on such information being given the case against the accused comes to an end. This power of entering a nolle prosecui under Sec.333, Criminal Procedure Code is not dependent upon any permission of the court. A reading of Sec.494 would show that it is the Public Prosecutor who is in-charge of the case that must ask for permission of the court to withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried. This permission can be sought by him at any stage either during the enquiry or after committal or even before the judgment is pronounced. The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court for permission not the grounds on which the court will grant or refuse permission. This permission can be sought by him at any stage either during the enquiry or after committal or even before the judgment is pronounced. The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court for permission not the grounds on which the court will grant or refuse permission. Though the section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. Nonetheless it is the duty of the court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law, directs the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest. A large number of cases have been referred to but it is unnecessary to consider them except for a few as typifying the approach in cases where permission to withdraw from the prosecution was sought on grounds extraneous to and not germane to the maintenance and enforcement of the law and which permission though given by the trial court was quashed by the High Court. It appears to us that the wide and general powers which are conferred under Sec.494 on the Public Prosecutor to withdraw from the prosecution though they are subject to the permission of the court have to be exercised by him in relation to the facts and circumstances of that case in furtherance of, rather than as a hindrance to the object of the law and justified on the material in the case which substantiate the grounds alleged, not necessarily from those gathered by the judicial method but on other materials which may not be strictly on legal or admissible evidence. The court also while considering the request to grant permission under the said section should not do so as necessary formality-the grant of it for the mere asking. It may do so only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice and the permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain. What then are the circumstances in which the permission has been sought in this case and the considerations that weighed with the courts in granting that permission. The Public Prosecutor as we have seen thought that the matter was of a civil nature, that the subject-matter of the case before the Magistrate had been decided in a civil suit, that witnesses are from far off places and their evidence will incur huge expenses for the state; that the case was registered as early as 1963 and the trial has not yet begun. It is clear that prima facie none of these grounds or even the cumulative effect of all these grounds would justify the withdrawal from the prosecution. It may be that the Acts of the respondent may make them both liable under the civil law as well as under the criminal law but it does not justify either the seeking of the permission to withdraw from the prosecution or granting of it unless the matter before the criminal court is of a purely civil nature.” 25. It may be that the Acts of the respondent may make them both liable under the civil law as well as under the criminal law but it does not justify either the seeking of the permission to withdraw from the prosecution or granting of it unless the matter before the criminal court is of a purely civil nature.” 25. In Rajendra Kumar Jain v. State Rajendra Kumar Jain v. State, (1980)3 S.C.C. 435 Chinnappa Reddy, J., speaking for the Bench, after analysing the precedents summarized the scope of powers regarding withdrawal of prosecution as hereunder: “Thus, from the precedents of this Court, we gather: 1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the executive. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. 4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public will certainly include appropriate social, economic and we add, political purposes says summary hall enterprises. 6. The Public Prosecutor is an officer of the court and responsible to the court. 7. The court performs a supervisory function in granting its consent to the withdrawal. 8. The court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution. We may add it shall be the duty of the Public Prosecutor to inform the court and it shall be the duty of the court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. We may add it shall be the duty of the Public Prosecutor to inform the court and it shall be the duty of the court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its ‘Minister of Justice’. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the executive by resort to the provisions of Sec.361, Criminal Procedure Code. The independence of the judiciary requires that “once the case has travelled to the court, the court and its officers alone must have control over the case and decide what is to be done in each case.” 26. Towards the penultimate paragraph, Chinnappa Reddy, J. had warned that political fervor should not convert prosecution into persecution, nor political favour reward wrongdoer by withdrawal from prosecution. Their Lordship observed thus: “Before bidding farewell to these cases it may be appropriate for us to say that criminal justice is not a plaything and a criminal court is not a playground for ploiticking. Political fervour should not convert prosecution into persecution, nor political favour reward wrongdoer by withdrawal from prosecution. If political fortunes are allowed to be reflected in the processes of the Court very soon the credibility of the rule of law will be lost. So we insist that courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should appraise himself from the Government and thereafter appraise the Court the host of factors relevant to the question of withdrawal from the cases. But under no circumstances should be allow himself to become anyone's stage.” 27. Sec.321 of the Code of Criminal Procedure was once again the subject-matter of consideration before a five Judges Bench in Sheonandan Paswan v. State of Bihar Sheonandan Paswan v. State of Bihar, (1987)1 S.C.C. 288. Venkararamiah, J, while concurring with the majority of judges and with reference to the earlier decision reported in Rajendra Kumar Jain v. State Rajendra Kumar Jain v. State, (1980)3 S.C.C. 435 has agreed with the legal position flowing from Sec.321 of the Code of Criminal Procedure. Venkararamiah, J, while concurring with the majority of judges and with reference to the earlier decision reported in Rajendra Kumar Jain v. State Rajendra Kumar Jain v. State, (1980)3 S.C.C. 435 has agreed with the legal position flowing from Sec.321 of the Code of Criminal Procedure. Bhagwati, C.J., while speaking for himself and Oza, J., held that the discretion to prosecute is not absolute or unfettered and further held thus: “It will thus be seen that the police has not absolute and uncanalised discretion would be violative of the equality clause of the Constitution. The Magistrate is therefore given the power to structure and control the discretion of the police. If the Magistrate finds from the report made by the police either on initial investigation or on further investigation directed by the Magistrate, that prima facie an offence appears to have been committed, the Magistrate is empowered to take cognizance of the offence notwithstanding the contrary opinion of the police and equally if the Magistrate forms an opinion that on the facts set out in the report no offence prima facie appears to have been committed though the police might have come to a contrary conclusion, the Magistrate can decline to take cognizance of the offence. The discretion of the police to prosecute is thus ‘cabinet and confined’ and, subject to appeal or revision, and the Magistrate is made the final arbiter on this question. The legislature has in its wisdom taken the view that it would be safer not to vest absolute discretion to prosecute in the police which is an executive arm of the Government but to subject it to the control of the judicial organ of the State.” 28. A Full Bench of the Kerala High Court in Dy.Acctt General v. State Dy.Acctt General v. State, A.I.R. 1970 Ker. 158 had occasion to consider the scope of Sec.494 of the Code of Criminal Procedure, 1898 and held thus: “It is difficult to formulate a general principle for determining the grounds on which a Public Prosecutor may legitimately seek withdrawal, or looked at from another angle, the grounds on which the court can properly grant or withhold its consent. 158 had occasion to consider the scope of Sec.494 of the Code of Criminal Procedure, 1898 and held thus: “It is difficult to formulate a general principle for determining the grounds on which a Public Prosecutor may legitimately seek withdrawal, or looked at from another angle, the grounds on which the court can properly grant or withhold its consent. The only general test we can think of, namely, that consent should be withheld if the withdrawal would tend to further the mischief the law seeks to prevent and that it should be granted if it is likely to have the opposite effect, is too general to be or much use in practice. But, as in most such matters, there might be no great difficulty in reaching a decision on the facts of a particular case there is none here. The court gives its consent in the exercise of its judicial discretion and before granting consent, it must be satisfied that the grounds stated for the withdrawal are proper grounds, grounds which, if true, would make the withdrawal a furtherance of, rather than an hindrance to, the object of the law. Further, that there is material to substantiate the grounds alleged, though not necessarily material gathered by the judicial method.” 29. Thus, it has been well laid down by a catena of decisions of the Apex Court as well as various other courts as to how the power under Sec.321 of the Code of Criminar Procedure has to be exercised and an exercise of power under Sec.321 of the Code of Criminal Procedure could be challenged even by a third party and it is the ultimate decision of the court that is being challenged therein. 30. Each case has to be considered on merits as whether the decision to withdraw the prosecution is valid in he light of those judgments and reported decisions wherein Sec.321 was the subject-matter of consideration. Had there been an abuse, it is well open to the petitioner and others to challenge the withdrawal of the prosecution in individual cases. Merely because in certain cases there has been a withdrawal, it cannot be assumed that the power conferred under Sec.321 of the Code of Criminal Procedure is violative of Art.14 of the Constitution or discriminatory. 31. Had there been an abuse, it is well open to the petitioner and others to challenge the withdrawal of the prosecution in individual cases. Merely because in certain cases there has been a withdrawal, it cannot be assumed that the power conferred under Sec.321 of the Code of Criminal Procedure is violative of Art.14 of the Constitution or discriminatory. 31. It cannot be held that Sec.321 is violative of Art.14 of the Constitution nor such an argument could be advanced by the petitioner nor it has been established that Sec.321 of the Code Criminal Procedure is ultra vires of the Constitution. All that the petitioner points out that there has been an abuse of powers conferred under Sec.321 of the Code of Criminal Procedure and hence it is violative of Art.14 and ultra vires to the Constitution. I am afraid such a contention can neither be appreciated nor could be sustained. 32. The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The Constitutional validity of the statute or provision would have to be determined on the basis of the provisions and on the ambit of its operations as reasonably construed. 33. In Collector of Customs v. Sampathu Chetty Collector of Customs v. Sampathu Chetty, A.I.R. 1962 S.C. 316 a Constitutional Bench of the Supreme Court had occasion to go into the unconstitutionality or legislation and held that the possibility of abuse of a statue otherwise valid does not impart to it any element of invalidity. The Apex Court held thus: “This Court has held in numerous rulings, to which it is unnecessary to refer, that the possibility of the abuse of the powers under the provisions contained in any statute is no ground for declaring the provision to be unreasonable or void. The Apex Court held thus: “This Court has held in numerous rulings, to which it is unnecessary to refer, that the possibility of the abuse of the powers under the provisions contained in any statute is no ground for declaring the provision to be unreasonable or void. Commenting on a passage in the judgment of the Court of Appeal of Northern Ireland which stated: ‘If such powers are capable of being exercised reasonably it is impossible to say that they may not also be exercised unreasonably.‘and treating this as a ground for holding the statute invalid Viscount simonds observed in Belfast Corpora-Hon v. O.D.Cars Ltd. Hon v. O.D.Cars Ltd., 1960 A.C 490 at 520-521: 1960 A.C 520-5211960 A.C 521.‘It appears to me that the short answer to this contention (and I hope its shortness will not be regarded as disrespect) is that the validity of a measure is not to be determined by its application to particular cases/ If it is not so exercised (i.e., if the powers are abused) it is open to challenge and there is no need for express provision for its challenge in the statute.’ The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used in no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements. In saying this we are not to be understood as laying down that a law which might operate harshly but still be constitutionally valid should be operated always with harshness or that reasonableness and justness ought not to guide the actual administration of such laws.” 34. In saying this we are not to be understood as laying down that a law which might operate harshly but still be constitutionally valid should be operated always with harshness or that reasonableness and justness ought not to guide the actual administration of such laws.” 34. In Virendra v. The State of Punjab Virendra v. The State of Punjab A.I.R. 1957 S.C. 896 :1956 S.C.J. 88 a Five Judges Bench of the Apex Court held thus: “It is next said that an executive officer may untruthfully say, as a matter of form, that he has been satisfied and there is nothing in the section which may prevent him from causing the power so conferred by these sections. But, as pointed out in Khare ‘s case, the exercise of a discretionary preventive power to be exercised in anticipation for preventing a breach of the public order must necessarily be left to the State Government or its officers to whom the State Government may delegate the authority. No assumption ought to be made that the State Government or the authority will abuse its power. To make the exercise of the power justiciable will defeat the very purpose for which the power is given. Further, even if the officer may conceivably abuse the power, what will be struck down is not the statute but the abuse of power.” 35. In Gannon Dunkerley and Co. v. State of Rajasthan Gannon Dunkerley and Co. v. State of Rajasthan, (1993)1 S.C.C. 364 a Constitutional Bench of the Apex Court had applied the very same principle laid down in Collector of Customs v. Sampathu Chetty Collector of Customs v. Sampathu Chetty, A.I.R. 1962 S.C. 576 and held thus: “The Constitutional validity of a statute has to be determined on the basis of its provisions and on the ambit of the operation as reasonably construed and if, so judged, it does not pass the test of Constitutionality it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the Constitutional requirements.” 36. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress Delhi Transport Corporation v. D.T.C. Mazdoor Congress, (1991)1 S.C.C. (Supp.) 600 the principle laid down in Collector of Customs v. Nathella Sampathu Chetty Collector of Customs v. Nathella Sampathu Chetty, A.I.R. 1962 S.C. 376 had been reiterated as hereunder: “Of similar nature is the reliance placed on the decision in Collector of Customs, Madras v. Nathella Sampathu Chetty for the proposition that the possibility of the abuse of the powers is no ground for declaring the provision to be unreasonable or void. The relevant observations are made while repelling the contention there that the burden thrown under provisions of Sec.178-A of the Sea Customs Act, 1878 on the possessor of the goods to show that they were not smuggled was violative ofArt.19(1)(f) and (g) of the Constitution. The observation are as follows: (S.C.R. page 825-838) ‘The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that a statute which is otherwise invalid as being administered in a reasonable manner. The Constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the Constitutional requirements. In saying this we are not to be understood as laying down that law which might operate harshly but still be constitutionally valid should be operated always with harshness or that reasonableness and justness ought not to guide the actual administration of such laws.‘ The statute there was saved by the provisions of Art.19(6) of the Constitution and was otherwise valid. It was not a case of a provision which was constitutionally invalid being saved by recourse to the specious assumption of its reasonable exercise in individual cases.” 37. It was not a case of a provision which was constitutionally invalid being saved by recourse to the specious assumption of its reasonable exercise in individual cases.” 37. The petitioner referred to the decision of David Annoussamy, J., in V.Krishnaswami v. State of Tamil Nadu V.Krishnaswami v. State of Tamil Nadu, 1987 L.W. (Crl.) 45 and Centre for Public Interest Litigation v. Union of India and others Centre for Public Interest Litigation v. Union of India and others (1995)3 S.C.C. (Supp.) 382 and State of Haryana v. Rama Diya State of Haryana v. Rama Diya, 1991 L. W. (Crl.) 9. These three citations relied upon by the petitioner had no relevancy nor the point, which is urged before this Court in this writ petition had been decided therein. 38. In the foregoing circumstances and in the absence of any material, it cannot be held that Sec.321 of the Code of Criminal Procedure is unconstitutional or violative of Art. 14 or it is ultra vires of the Constitution. Identical provision, namely, Sec.494 of the Code of Criminal Procedure, 1898 had stood the test of time and merely because in some cases there has been an abuse or misuse of power conferred under Sec.321 of the Code of Criminal Procedure, the petitioner will not be justified in contending that Sec.321 of the Code of Criminal Procedure is violative of Art.14 of the Constitution. Individual cases of abuse or arbitrary exercise of power has to be challenged by filing a revision or appropriated proceedings and on that score, it cannot be contended that Sec.32 of the Code of Criminal Procedure is violative of Art.14 of the Constitution. 39. The writ petition is dismissed. Consequently, W.M.P.No.20732 of 1997 is also dismissed. B.S. ----- Petitions dismissed.