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3) The present Writ Petition came to be filed questioning the authority of the first respondent viz., the State of Andhra Pradesh represented by its Principal Secretary to issue the said G.O. under Section 321 Cr.P.C. It is pleaded that the power under Section 321 Cr.P.C., should be confined only to such cases, where no evidence could be gathered by the prosecution with reference to the facts of such cases. It is further stated that the impugned G.O. is not disclosing any reasons for its issuance. Since the criminal prosecution cannot be scuttled down in such a manner, by the persons in authority, he pleads that the action of the first respondent in issuing the said G.O. is illegal, improper and incorrect.

6) Section 321 Cr.P.C., speaks about withdrawal of prosecution. It states that the 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. Mere issuance of G.O., for withdrawal of prosecution does not automatically lead to withdrawal of the case. Various procedural aspects are required to be followed from stage to stage before seeking withdrawal of prosecution. It is well established principle of law that the action of the Government from withdrawal of the prosecution is only to request the Public Prosecutor to exercise such power. Discretion to take a decision is on the Public Prosecutor concerned with the case and the court has the power either to accept or reject such a request (see D.Bharathi v. State of Andhra Pradesh and others (2009 (3) ALT 209)

7) While filing an application seeking withdrawal of the prosecution, the Public Prosecutor must apply his mind, independent of the external pressure and decide whether it is a fit case for withdrawal of prosecution. Recommendations by the authorities concerned shall not be the basis for the Public Prosecutor to file an application seeking to withdraw the case. He cannot act like a post box in filing applications on the instructions issued by the Government. If that is done, it cannot constitute a valid exercise of executive functions enjoined on him. Therefore, Public Prosecutor who files an application should be satisfied with the reasons given by the Government and only after he being satisfied with the reasons given, he shall make an application giving reasons in his application as to why he intends to make an application seeking withdrawal of the prosecution. On an application made giving reasons it is for the Court concerned to decide as to whether the case warrants invocation of Section 321 Cr.P.C. Absolutely there is no material on record to show as to whether such an application is filed by the Public Prosecutor for withdrawal of the case, and if so, whether the Court acted on it. Therefore, the apprehension of the learned counsel for the petitioner that the very issuance of G.O., would terminate the proceedings is incorrect.

10) Viewed from any angle, we feel that there are no merits in the petition and the same in our view appears to be premature. Accordingly, the writ petition is rejected giving liberty to the petitioner to avail the remedy available under the Code of Criminal Procedure, in case of any application being fuiled under Section 321 Cr.P.C., and an order thereon has been passed.

11) No order as to costs. Miscellaneous Petitions pending if any in this Writ Petition shall stand closed.

__________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR ______________________________ JUSTICE M. SATYANARAYANA MURTHY Dated:22.08.2019 GM