ORDER 1. Petitioner has filed this revision against the order dated 2.8.2006, passed by Special Judge (Lokayukta), Jabalpur, in Special Case No.1/2003, whereby the application u/s 321 of CrPC, for withdrawal of prosecution of the petitioner, was dismissed. 2. Petitioner alongwith 10 other accused persons is being prosecuted for the offence u/ls 420, 467, 468, 471, 120B of IPC and section 13(1)(d) read with section 13(2) of Prevention of Corruption Act. 3. Brief facts of the case are that the petitioner was posted as Additional Collector, Jabalpur, during the period between 23.7.1983 to 30.5.1985. During his tenure Rashtriya Grih Nirman Sahkari Samiti Maryadit, Jabalpur, a registered Housing Cooperative Society, filed an application for grant of colonization licence on 15.7.1983 in the office of Collector. This application was filed by the President of the Society on its behalf. On the basis of application, a case No. 15-B/121-82-83 was registered in the Court of Additional Collector, Jabalpur. Said application was filed under the provisions of rule 3 of the Madhya Pradesh Vinirdist Bhrashta Acharan Niwaran (Registration and Development of Colony) Rules, 1982 (hereinafter referred to as "the Rules"). During the enquiry, as sought by rule 4, the case of society was sent to Nazul Officer for enquiry and report. After receipt of report of enquiry and on being satisfied, petitioner recommended for grant of colonization licence to aforesaid society and ultimately the colonization licence was issued to society on 25.2.1984. 4. According to prosecution, the aforesaid certificate was issued in respect to development of the land, survey No.152/1, area 44.70 acres, situated in Marhatal, Jabalpur. This land was purchased by the society in auction by Sales Tax Officer and Additional Tahsildar. From the years 1972-73 to 1975-76, this land was recorded in the revenue records in the name of Dashrath, Gokul, Moti, Omkar Prasad, Narayan Prasad and Chhotelal as Bhumi Swami. In respect of above land, a criminal case was pending against these persons before the Court of Chief Judicial Magistrate, Jabalpur, under the provisions of Urban Land (Ceiling and Regulations) Act, 1976 and this land was covered under Master Plan. Government Pleader C.K. Sharma who was representing the State in that case, conspired with the bhumiswamis and with a view to save the land from being vested in the Government under the provisions of the said Act, got the land transferred to Dwarka Dal Mill, Jabalpur. Government Pleader C.K. Sharma who was representing the State in that case, conspired with the bhumiswamis and with a view to save the land from being vested in the Government under the provisions of the said Act, got the land transferred to Dwarka Dal Mill, Jabalpur. It is said that partner of Dwarka Dal Mill and C.K. Sharma with the connivance of Sheel Chand Jain, the then Sales Tax Officer, Jabalpur, got the aforesaid land auctioned in lieu of recovery of taxes from Dwarka Dal Mill. The land was purchased by the aforesaid society in auction. It is alleged that C.K. Sharma conspired with petitioner K.C. Shrivastava and obtained the colonization for the society licence in the year 1984 and disposed the land. According to prosecution, in the said transaction the land owners and society earned huge profits, which resulted in financial loss to the Government. Since according to prosecution, petitioner under the conspiracy with other accused persons had participated in commission of the offence in granting licence of colonization to society, he was also liable to be prosecution. 5. After investigation, charge-sheet was filed on 31.1.2003, S.P. Gour, Special Public Prosecutor, Special Economic Offence Investigation Wing Bureau, Jabalpur (in short "Bureau"), on 1.11.2004 filed an application u/s 321 of CrPC for withdrawal of the prosecution against the petitioner on the following grounds : 1. That Mr. K.C. Shrivastava had merely granted a colonization licence to the registered housing society in respect to district Jabalpur. It was not in relation to any particular land. 2. That the permission for establishment of the colony was granted in the year 1986 when Shri Shrivastava was not posted at Jabalpur and it was granted by the then Collector Jabalpur. For any loss being caused to land, Mr. Srivastava was not liable. 3. The transaction of sale and purchase of the land by the society had taken place in the year 1981, when Mr. Shrivastva was not posted at Jabalpur. He had no concern with the said transaction. In the case of grant of licence for colonization, enquiry about the title of the land was not required. 4. Mr. Shrivastva was not the main culprit. He was made accused on the basis of suspicion, u/s 120B of IPC. 5. Mr. Shrivastva, in granting licence to society had acted as Presiding Officer of a Revenue Court and had performed quasi-judicial function in passing the order. 4. Mr. Shrivastva was not the main culprit. He was made accused on the basis of suspicion, u/s 120B of IPC. 5. Mr. Shrivastva, in granting licence to society had acted as Presiding Officer of a Revenue Court and had performed quasi-judicial function in passing the order. Taking any action or prosecuting him would amount to abuse of judicial process. Withdrawal of prosecution against Mr. Shrivastava would be in public interest. 6. That after due deliberation about the facts of the case at different levels of Government, it has been decided that withdrawal of prosecution against Mr. Shrivastava would be in the public interest and judicial administration. 6. The instructions for withdrawal of prosecution of the petitioner were given to District Magistrate by the M.P. Government, Department of Law and Legislative Affairs, Bhopal, through memorandum No.121 103/2003/16/82/21 Bhopal dated 16.10.2003. Accordingly, District Magistrate vide memo No.11734-SW/03 dated 20.10.2003 authorized Public Prosecutor, Jabalpur to proceed for withdrawal of prosecution. Public Prosecutor, viz., Mr. P.K. Tiwari moved an application for withdrawal of prosecution on 17.11.2003. The application for withdrawal of prosecution was objected by State Economic Offences Investigation Bureau, Jabalpur, but General Administration Department of the Government vide its letter F.22(3)/2oo3/1-10 dated 6.9.2004 directed bureau to proceed for withdrawal of prosecution against Mr. K.C. Shrivastava in terms of order dated 16.10.2003. It was clarified by letter dated 16.10.2003 that the prosecution against Mr. Shrivastava only was to be withdrawn. Vide letter dated 17th June, 2004, District Magistrate, Jabalpur in place of Public Prosecutor Mr. P.K. Tiwari, authorized Mr. S.P. Gour, Special Prosecutor for taking steps for withdrawal of the prosecution. Copies of the aforesaid memorandum were annexed with the application for withdrawal. Before the present application for withdrawal was filed by Special Prosecutor on 1.11.2004, another similar application was moved by Public Prosecutor Mr. P.K. Tiwari, but the same was withdrawn with the consent of both the Prosecutors, as being not maintainable. 7. Learned trial Court by the impugned order dismissed the withdrawal application filed by the prosecution holding that it was not bona fide as the Special Prosecutor Mr. Gour, in the past, had opposed the similar application filed by Public Prosecutor Mr. P.K. Tiwari, which indicates that he did not apply his mind and filed the subsequent application without going through the facts of the case. Gour, in the past, had opposed the similar application filed by Public Prosecutor Mr. P.K. Tiwari, which indicates that he did not apply his mind and filed the subsequent application without going through the facts of the case. Learned Special Judge held that the petitioner did not take into consideration the report dated 2.2.1984 submitted by Smt. Anju Baghel, Nazul Officer, which mentioned that in respect of the land held by the society a case under the provisions of Urban Land (Ceiling and Regulation) Act was pending. It was also held that at the time of granting licence of colonization under rule 4, it was necessary to hold enquiry in respect to land held by the society for developing colony. Merely because function of the petitioner was quasi-judicial, it cannot be held that he was exempted from prosecution, in case he committed the offence of misconduct and abused the judicial process. Besides that, it was also held that there was sufficient material on record against the petitioner prima facie making him liable for the offence. 8. Learned counsel for the petitioner submits that when the case for grant of licence to society was sent for enquiry to Nazul Officer, Jabalpur, the then Nazul Officer Mr. S.K. Shrivastava submitted his report on 1.9.1983 and after being satisfied on three points mentioned in rule 4, recommended for grant of licence to the society for Jabalpur district in form II of rule 5. Though the report of the Nazul Officer dated 1.9.1983 was not filed alongwith the charge-sheet, yet the petitioner moved application u/s 91 for production of the aforesaid document and also submitted its photocopy for the perusal of the Court. The report of the Nazul Officer was made the basis of passing the order of grant of licence. Since two Nazul Officers were posted at Jabalpur, one after other, in the licence case, subsequently, Nazul Officer Smt. Anju Baghel also conducted enquiry and submitted her report on 2.2.1984. Report of Nazul Officer dated 2.2.1984 was taken into consideration before passing the order, but was not found correct and acceptable. Petitioner had passed the order of grant of licence as per rule 5 of the Rules of 1982. Report of Nazul Officer dated 2.2.1984 was taken into consideration before passing the order, but was not found correct and acceptable. Petitioner had passed the order of grant of licence as per rule 5 of the Rules of 1982. Under rule 4, the petitioner was required to conduct enquiry in order to satisfy himself only on three counts, firstly, the application should be bona fide, secondly, the applicant's financial status should be adequate and he should be solvent to the extent at least 10% of the total cost of the development and thirdly, the applicant was not convicted for any offence involving moral turpitude. Learned counsel further submits that while acting under the Rules, petitioner performed quasi-judicial fuction. Even if he had mistaken, yet he acted judicially therefore, no action shall lie against him. The wrong, if any, committed by him could be corrected in appeal. His action, in the circumstances of the case, cannot form a basis for initiating criminal proceedings against him. It was further submitted that the petitioner had simply granted licence of colonization to the society and not the licence for establishment of colony for which permission was required under rule 9. Permission to establish colony was granted by some other authority in the year 1986, when petitioner was not posted at Jabalpur. 10. Learned Government Advocate has supported and seconded the submissions made by the learned counsel for the petitioner. He submitted that the withdrawal of the prosecution against the petitioner was in public interest. Petitioner had acted judicially and his function in granting licence of colonization was a quasi-judicial function. Therefore, he was not liable to be prosecuted. He submitted that since the first application for withdrawal of prosecution filed by Public Prosecutor P.K. Tiwari was dismissed as not maintainable, it cannot be said that the subsequent application suffered with non-application of mind. The order dated 17th June 2004, District Magistrate had authorized Mr. S.P. Gour to conduct the prosecution in the case in place of Public Prosecutor P.K. Tiwari, as such he was incharge of the case. 11. Learned counsel for both the sides submit that when an application u/s 321 of the Code of Criminal Procedure is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. The Court's function is to give consent. 11. Learned counsel for both the sides submit that when an application u/s 321 of the Code of Criminal Procedure is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. The Court's function is to give consent. All that is necessary to satisfy the requirement of section is to see that the Public Prosecutor acts in good faith and that exercise of discretion by the Public Prosecutor is proper. They placed reliance on decisions of the apex Court in Sheonandan Paswan v. State of Bihar and others [ AIR 1983 SC 194 ], Sheonandan Paswan v. State [ AIR 1987 SC 877 ], Abdul Karim etc. v. State of Karnataka and others etc. [ 2001 CrLJ 148 ]. 12. Perusal of the record shows that the first application for withdrawal of prosecution was filed by Public Prosecutor P.K. Tiwari on 17.11.2003. At that time the prosecution was being conducted by Special Public Prosecutor for State Economic Offence Investigation Bureau Ms. Archana Chouhan. Reply to this application was filed by Superintendent of Police, SEO Bureau on 7.2.2004 opposing the withdrawal. This reply was also signed by Ms. Chouhan as well as Mr. S.P. Gour, Special Prosecutor. This application, with the consent of both the parties to the case, was dismissed as not maintainable on 1.11.2004. Subsequently, another application was filed by Mr. Gour, who was authorized to conduct the prosecution of the case by the order of District Magistrate dated 17th June, 2004 in place of Mr. P.K. Tiwari. 13. Perusal of the order sheets dated 18.11.2003, 18.12.2003 and 28.1.2004 reveals that the prosecution was being conducted by Ms. Archana Chouhan, Special Prosecutor, but application u1s 321 of CrPC was filed by Mr. P.K. Tiwari, Public Prosecutor. In view of the above, it cannot be said that at the time of filing application u/s 321 CrPC dated 17.11.2003 Mr. P.K. Tiwari was Incharge of the case, whereas by letter dated 17th June 2004, District Magistrate had authorized Mr. S.P. Gour, Special Prosecutor of Investigation Bureau, to conduct the prosecution. Thereafter, another (present) application was filed by him on 1.11.2004. Even if the reply to earlier application was filed by Superintendent of Police of Bureau and the signatures of Mr. S.P. Gour were obtained on it, it cannot be held that Mr. S.P. Gour, Special Prosecutor of Investigation Bureau, to conduct the prosecution. Thereafter, another (present) application was filed by him on 1.11.2004. Even if the reply to earlier application was filed by Superintendent of Police of Bureau and the signatures of Mr. S.P. Gour were obtained on it, it cannot be held that Mr. Gour had signed the reply as Prosecutor Incharge of the case. As such, the finding recorded by the Special Judge that the application for withdrawal by the Special Prosecutor Mr. Gour was not bona fide cannot be accepted. 14. So far as grant of licence of colonization to any person is concerned, the Collector is supposed to get such enquiry conducted as he deems fit, particularly for his satisfaction on three counts firstly, the application should be bona fide, secondly, the applicant's financial status should be sound and that he should be solvent to the extent at least 10% of the total cost of the development and thirdly, the applicant was not convicted for any offence involving moral turpitude. Bare perusal of the above rules indicates that the authority is not required to enquire about the title of the land. What is required is only that the person seeking licence should be solvent to the extent of 10% of the total cost of the development. An application for licence is to be made in Form I under rule 3 of the Rules of 1982, which requires following particulars : "(i) Name of the applicant with complete present address and permanent address, (ii) Is the applicant a private individual/private company/public company firm or association? (iii) In case applicant is -- (a) an individual, his nationality; (b) a private company, the nationality of all members of the company along with place of registration; (c) a public company, the nationality of directors, the percentage of share capital held by Indian nationals, alongwith place of incorporation; (d) a firm of association, the nationality of all the partners of the firm or of the association; (e) a society, details thereof. (iv) Profession or nature of business of applicant; (v) Details of immovable and movable property owned by the applicant; (vi) Whether he has developed any land before the date of this application. If yes, give details thereof; (vii) Whether applicant, has financial resources to establish colony (state sufficient particulars); (viii) Whether applicant has ever been convicted for any offence? (iv) Profession or nature of business of applicant; (v) Details of immovable and movable property owned by the applicant; (vi) Whether he has developed any land before the date of this application. If yes, give details thereof; (vii) Whether applicant, has financial resources to establish colony (state sufficient particulars); (viii) Whether applicant has ever been convicted for any offence? If yes, gives details; (ix) Income tax permanent account number (copy of the statement for the year for which account has been filed should be enclosed); (x) Nature of joint interest, if any; (xi) If the applicant intends to supervise the works, his previous experience should be explained. If he intends to appoint a manager, the name of the manager, his qualifications, nature and extent of his previous experience should be specified and his consent letter should be attached." Though in clause 3(e)(v) the applicant is required to furnish details of immovable and movable property owned by him but, it cannot be said that he is required to give the details about the history of immovable property held by him. He is required merely to furnish details about the immovable and movable properties owned by him with a view to facilitate the appreciation of his financial status. Once the certificate of colonization is obtained by any person, he can acquire further immovable property or establish and develop colony in the same local area on the strength of said certificate. He is not supposed to obtain different licence for different lands. From rule 10 of the Rules of 1982, it is clear that whenever any licensee intends to undertake the establishment of colony within the meaning of clause A of rule 24, he is required to take permission of the Collector, for which purpose, he shall intimate in Form No. IV to the Collector of the District for which he holds licence. Such an intimation should reach before the Collector at least 90 days before he undertakes development or sale of plots in any colony. For ready reference Form IV is quoted below : "Form IV [See Rule 10] Intimation of Colonization To, The Collector, District .................... I/We am/are sending intimation of colonization as follows : (1) Full name of applicant (state whether individual, firm co-operative society or other class of society, company) ....... (2) Licence number ................. (3) Present address ................. For ready reference Form IV is quoted below : "Form IV [See Rule 10] Intimation of Colonization To, The Collector, District .................... I/We am/are sending intimation of colonization as follows : (1) Full name of applicant (state whether individual, firm co-operative society or other class of society, company) ....... (2) Licence number ................. (3) Present address ................. (4) Details of land including survey numbers which is intended to be developed ............... (5) The right in which the land is held by the applicant ............. (6) Details of immovable and movable property owned by applicant ...... (7) Whether he has developed any land before the date of the application. If yes, provide details thereof ............ (8) Details of financial resources for establishment of colony....... (9) Whether applicant has ever been convicted of any offence? If yes, give details ............. (10) I am enclosing the following with this intimation : (i) True copy of each document, evidencing right, title or interest [in relation to land in regard to which permission for colonization under section 24 of the Act is sought]. (ii) Certified copies each of no objection certificate or prior permission in writing by whatever name called, under the relevant enactments referred to in clause (a) of section 24 of the Act. and (iii) Proposed development plan. (11) I/We do hereby declare that the particulars furnished above are correct and am/are ready to furnish any other details as may be required by you. Kindly grant me/us permission to undertake the colonization. Yours faithfully, Signature and designation of the applicant Place .............. Date .............. Clauses 4 and 5 of the above form indicate that applicant while sending intimation of colonization has to furnish details of the land and has to inform about the right in which the land is held by him. Details of other immovable and movable properties owned by the applicant are also required to be informed. He is also required to enclose the copy of relevant documents and no objection certificates, etc. 15. Comparative study of the rules 4 and 10 and their respective forms indicates that the petitioner while granting licence of colonization was not required to enquire about the land on which the colony was to be established. This enquiry was in fact required to be made when permission was sought for establishment of the colony under rule 10. 16. 15. Comparative study of the rules 4 and 10 and their respective forms indicates that the petitioner while granting licence of colonization was not required to enquire about the land on which the colony was to be established. This enquiry was in fact required to be made when permission was sought for establishment of the colony under rule 10. 16. In view of the above factual and legal situation, it cannot be held that in granting colonization licence to society, the petitioner prima facie committed misconduct or abused the process of the Court. 17. Rule 5 of the Rules of 1982 postulates that when the Collector decides to grant licence, he shall grant the same in Form II subject to such terms and conditions and restrictions, if any, as he may deem fit as specified in the licence. Reasons for grant or refusal of licence shall be recorded in writing. Since the Collector is required to record the reasons for grant or refusing the licence, his action would necessarily be a quasi-judicial function. It is now well settled that where an authority passes an order in exercise of quasi-judicial function, it must record its reasons in support of the order, it passes. The rule requiring reasons to be given in support of an order is like the principal of audi alterem partem, a basic principle of natural justice, which must inform every quasi-judicial process. In performance of quasi-judicial function, every error of law could not constitute a charge of misconduct as it would impinge upon the independent functioning of quasi-judicial officer. Authority might have wrongly exercised his jurisdiction, but that wrong can be corrected in appeal or under Articles 226 and 227 of the Constitution. That cannot always form the basis for initiating disciplinary or criminal proceedings. In State of M.P. v. Rajiv Jain [ 2001(4) MPHT 58 ], it has been observed : "Freedom of action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of public and for the advancement of justice. That being free from action, they may be free in thought and independent in judgment, as all who are to administer justice ought to be." 18. That being free from action, they may be free in thought and independent in judgment, as all who are to administer justice ought to be." 18. Perusal of the order dated 25.2.1984 granting licence of colonization to society reveals that the land of Kh.No.152/1 situated at Marhatal, Jabalpur was purchased by the society in auction from Sales Tax Officer and Additional Tahsildar. After purchase, the land was recorded in the name of society in Bhumiswami right. Land was diverted also. Therefore, it appears that petitioner after considering all the circumstances granted licence of colonization to society subject to condition that society shall obtain permission of Collector before establishing the colony and produce requisite no objection certificate. 19. On due consideration of the above circumstances, it appears that the Special Prosecutor Incharge of the case had filed application for withdrawal of the prosecution of petitioner with due application of mind to the facts and circumstances of the case. The submission of the learned counsel for the parties that it would be abuse of process of the Court to continue criminal prosecution against the petitioner, who had retired 8 years ago, appears to be just and proper. In the above circumstances the withdrawal of prosecution of the applicant also appears in public interest. 20. Section 321 of CrPC needs three requisites to make an order under it valid : (i) The application should be filed by a Public Prosecutor or Assistant Public Prosecutor who is competent to make an application for withdrawal; (ii) He should be Incharge of the case; (iii) The application should get consent of the Court before which the case is pending. While exercising power u/s 321 of the Code, the Court performs a supervisory function in granting its consent to withdrawal. Since, as mentioned above, I find all the aforesaid requisite conditions satisfied, the impugned application filed for withdrawal of the prosecution against the petitioner deserves to be allowed. The application has been filed for withdrawing the prosecution against the petitioner only and not for all other accused against whom there appear allegations different than those against the petitioner. In view of the allegations appearing against the petitioner and the material on record, the application made by the Public Prosecutor cannot be said to be malafide. In Sheonandan Paswan v. State of Bihar and others [ AIR 1987 SC 877 ], apex Court held that : ".... In view of the allegations appearing against the petitioner and the material on record, the application made by the Public Prosecutor cannot be said to be malafide. In Sheonandan Paswan v. State of Bihar and others [ AIR 1987 SC 877 ], apex Court held that : ".... when an application u/s 321 of CrPC is made, it is not necessary for the Court to assess the evidence to discover whether the case would end in conviction or acquittal. To contend that the Court when it exercise its limited power of giving consent under S.321 has to assess the evidence and find out whether the case would end in acquittal or conviction, would be to re-write section 321, CrPC and would be to concede to the Court a power which the scheme of section 321 does not contemplate. The acquittal or discharge order under section 321 is not the same as the normal final orders in criminal cases. The conclusion will not be backed by a detailed discussion of the evidence in the case of acquittal or absence of prima facie case or groundlessness in the case of discharge. All that the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law." 21. Similar view was reiterated by the apex Court in case of Abdul Karim etc. v. State of Karnataka and others [ 2001 CRLJ 148 ]. 22. In this case, on going through the application for withdrawal of prosecution and other attendant circumstances appearing from the record of the case, I am of the view that the application for withdrawal is proper and satisfies to requisite conditions of section 321 of CrPC. Accordingly this revision is allowed. Impugned order passed by the Special Judge refusing the consent to the application for withdrawal of prosecution of the petitioner is set aside. The impugned application is allowed. Consent for the withdrawal of prosecution of petitioner is accorded. Prosecution of petitioner stands withdrawn.