Criminal Appeal No 48 of 1983
From the Judgment and Order dated 1451981 of the Orissa High Court in Crl
R No 22 of 1981
VJ Francis for the Appellant
FS Nariman Anil B Divan LR Singh RK Mehta GS Chatterjee and Vinoo Bhagat for the Respondents
The Judgment of the Court was delivered by VENKATARAMIAH J
I agree that this appeal has to be dismissed
I am of the view that the decision in The State of Bihar vs Ram Naresh Pandey interpret ing section 494 of the Code of Criminal Procedure 1898 and the decision in RK Jain etc
vs State through Special Police Establishment and Others interpret ing 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 Magis trate has not committed any error in giving his consent to such withdrawal
The appeal is therefore dismissed
KHALID J I have just received at 740 pm 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 con tained in the Judgment
Since the case is listed for Judg ment on 20th December 1986 I do not have time to write a detailed Judgment
The question to be decided in this appeal is the scope of Section 32 1 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 684 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 ground less and respondent No 1 would therefore in any event be entitled to be discharged under Section 239   A cursory glance at Section 32 1 will satisfy anyone that consent can 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
This appeal along with Criminal Appeal Nx
49 of 1983 were directed to be posted before a Constitution Bench to consider the scope of Section 32 1 Criminal Procedure Code
That being so I do not think it proper to abandon that pursuit and take refuge under Section 239 of Criminal Proce dure Code
In a separate Judgment to be pronounced by me in Crimi nal Appeal No241 of 1983 I have outlined the scope of Section 321 of Criminal Procedure Code
What is to be decid ed in this case is whether the order passed by the Magis trate 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
I adopt the reasons given by me in Criminal Appeal No 241 of 1983 relying upon the decisions reported in of Bihar vs Ram Naresh Pandey and in  Jain vs State and uphold the order of withdrawal passed by the Additional Special Judge Bhubanes war and upheld by the High Court in revision and dismiss the appeal
OZA J
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 applica tion 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 Hon ble 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 685 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 15672 to 28273 and again from 6374 to 261276
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 18000
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 Rs75473585 p which were disproportionate to her known sources of income
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 51d read with Sec
52 of the Prevention of Corruption Act
One of the allegations on the basis of which the charge sheet was filed was that on 15774 respondent No 1 passed an order in favour of Ms Ferro Alloys Corporation
This order was passed by her in her official capacity and it is alleged that because of this order Ms Ferro Alloys made a huge profit of about Rs4 crores and on 31075 and 71075 cheques in the aggregate sum of Rs48000 were given by Ms 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 Rs48000 from Ms Ferro Alloys Corporation
The second allegation against respondent No 1 was that on 14676 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
686 The construction of the house started in September 1974 and ended on 29th February 1976
The investment in the con struction of the house is said to be Rs332000 and odd whereas according to respondent No 1 she had spent an amount of Rs268000 and the difference of Rs64000 ac cording 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 Rs327614 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 Samajba di Society received a sum of Rs394540 between 6374 and 29276 in respect of orders placed by UPCC
The allega tion is that UPCC between 6374 and 29276 paid only Rs60964 and as regards the balance of Rs333576 it must have been acquired by respondent No 1 herself and paid to Navjat Printers
It was alleged that Shri Natchiketa Satpathy son of respondent No 1 purchased a flat at Kailash Apartments New Delhi and for this purpose respondent No 1 paid Rs50000 to her son in three instalments
Similarly it was alleged that on 15375 respondent No 1 paid Rs 15000 to her other son Tathagat Satpahty and managed to get invested a sum of Rs33000 in different names fictitiously in Ms Rosambi Private Limited
An amount of Rs 15000 is said to have been a payment by cheque
It was alleged that in the house of her husband cash was contained in two bags which was to the tune of Rs5 1766
One of the bags there had a visiting card of the First Secretary of the USSR Embassy
This cash was discov ered 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
It appears that when charge sheet was filed against respondent No 1 the Income Tax Department also issued notice for re opening 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 dispropor tionate 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 with drawal from the prosecution 687 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 alle gations can be broadly classified into three heads 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 co related to respondent No 1 or regarded as receipt of re spondent No1
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
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 UPCC 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 re opened the assessments after giving notice and conducted detailed enquiries and ultimately passed a final order accepting her returns as correct and rejecting the allega tions that she had suppressed any income from undisclosed sources
It is also significant that the application for with drawal 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 JB 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 distinguished 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
The Income Tax Officer examined in detail each one of the items of assets said to have been unaccounted and sup pressed and the order passed by the Income Tax Officer which has been placed on record 688 clearly explains all the items as also entries pertaining to the house construction and other assets and shows that there is nothing to indicate the 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 bonafide and in further ance of public justice and it was clearly a false and vexa tious 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 prose cution 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 sup pressed 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 deter mining 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 Misra s case which has been delivered today
But in the present case there is no point in setting aside the withdrawal and send ing 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
The appeal will therefore stand dismissed
NATARAJAN J
In the withdrawal petition filed on 151180 and the supplementary withdrawal petition filed on 161280 the Special Public Prosecutor Vig CD Cuttack has set out the factors which have prevailed with him to seek the consent on the Court to withdraw the prosecution launched in VCR Case No 33 of 1977 against the accused therein viz Smt
Nandini Satpathy  Anr
The Additional Chief Judicial Magistrate has passed a detailed and considered order on 201280 wherein he has fully discussed the 689 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
 The order of the learned Magistrate has been critically assessed by a learned Judge of the Orissa High Court in Crl
Rev No 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 Court s view as under The observations of the Supreme Court in RK Jain vs State AIR 1980 Supreme Court 1510 1980 Volume 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 contin ue
 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 incharge 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 congnizance of the case till such time the court actually pronounced 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
In his application a Special Public Prosecutor had set out the reasons which justified his filing an application under Section 32 1 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 RK Jain vs State  which has followed the earlier decision in State of 690 Bihar vs Ram Naresh Pandey The order of the learned Magistrate has been approved and affirmed by the High Court
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 dis missed
APJ Appeal dismissed


Summary:
Prosecution was launched against Respondent No 1 under s51d read with s52 of the Prevention of Corruption Act 1947 for having assets disproportionate to her known sources of income
The Special Public Prosecutor filed application for withdrawal of the prosecution against Respondent No 1
The Additional Special Judge allowed the application
The High Court dismissed the revision petition and confirmed the order permitting withdrawal of the case
Dismissing the Appeal to this Court HELD Per Venkataramiah J The Public Prosecutor had applied his mind to the case before applying for withdrawal and the Chief Judicial Magis trate has not committed any error in giving his consent to such withdrawal
683D E The State of Bihar vs Ram Naresh Pandey 1957 SCR 279 and RK Jain etc
vs State through Special Police Establishment and others   Relied upon
Per Khalid J 1
What is to be decided in this case is whether the order passed by the Magistrate under s32I Criminal Proce dure Code is proper or not
The Court is not called upon to consider the propriety of the charge framed and then examine the evidence and see whether the accused should be dis charged or the charge framed should be upheld
684D E 2
Consent can be given for withdrawal from the prosecution of a 681 case not only when the charge is not framed but even after the charge is framed and at any time before the judgment
684B C The State of Bihar vs Ram Naresh Pandey 3957 SCR 279 and RK Jain etc
vs State through Special Police Establishment and others   Relied upon
Per Oza J I 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 s239 of the Code of Crimi nal Procedure 1973 the Court should not allow the prosecu tion to be withdrawn under s321
688C E 2
In the present case there is no point in setting aside the withdrawal and sending the case hack to the Spe cial Judge because there is no material at all to show that there is a prima facie case and the charges appear to be groundless
Respondent No 1 would therefore be entitled to be discharged under s239
It is therefore not neces sary or expedient to interfere with the order made by the Special Judge and confirmed by the High Court
688E F 3
When the charge sheet was filed the Income Tax Department re opened the assessment examined the whole matter afresh and passed final orders during the pendency of the case in this Court explaining all the items of assets said to have been unaccounted and suppressed as also entries pertaining to the house construction and other assets which show that there is nothing to indicate that Respondent No 1 was possessed of assets disproportionate to her means
688A B 4
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 launched against respondent No 1
The Special Judge also on these facts took the view that no useful purpose would be served by continuance of the prosecution and accordingly permitted the withdrawal which was upheld by the High Court in revi sion
688B 5
The first allegation relates to payments made to Dharitri and Navjat Printers
Dharitri is a newspaper which receives advertisements
There is nothing to show that the payment received by Dharitri for advertisement had anything to do with respondent No1
687B C 682 6
The second allegation relates to valuation of assets and the construction of the house and the third relates to the monies received by the UPCC 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
It was on the basis of these allegations that the Income Tax Department re opened the assessments 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 undis closed sources
687C E 7
The application for withdrawal was made by the Spe cial Public Prosecutor in 1980 when respondent No1 had nothing to do with the party in power as she was in opposi tion party after the elections held in 1980
This is a strong circumstance which indicates that the application for withdrawal was made in furtherance of public justice
687E G 8
In the fight of the facts an record and the order passed by the Income Tax Officer explaining all the items of assets alleged to be unaccounted and suppressed the charges against respondent No 1 appear to he groundless
688C Per Natarajan J 1
Section 321 makes it clear that an application for withdrawal of a case can he made by a Public Prosecutor or Assistant Public Prosecutor who is incharge of the case concerned at any time before the judgment is pronounced
The application for withdrawal of prosecution may he made at any time ranging between the Court taking cognizance of the case till such time the Court actually pronounces judgment
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 he made at the earliest stages of the case or only if the evidence is of a weak and infirm nature
689E G 2
The Special Public Prosecutor had set out the reasons which justified filing of an application under s321 of the Code for the withdrawal of the prosecution and the Magis trate has considered the matter judicially before giving his consent
689G H The State of Bihar vs Ram Naresh Pandey 1157 SCR 279 and RK Jain etc
vs State through Special Police Estab lishment and others   relied upon