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“It is not disputed by the petitioners that, in the meantime, the learned M.M. has permitted the withdrawal of the application under Section 321 Cr.P.C. vide order dated 07.01.2012. It is not disputed by the petitioners that they opposed the withdrawal of the said applications under Section 321 Cr.P.C. and that they were heard by the learned M.M. on the said applications. It is also not in dispute that the petitioners have already preferred the remedy available to them in respect of the orders passed by the learned M.M. permitting the withdrawal of the applications under Section 321 Cr.P.C. Therefore, the petitioners have not only had the occasion to raise all the issues raised before this Court, before the learned M.M., but still have the right to pursue the matter further and to raise all the issues available to them in appropriate proceedings.”

34. Regard being had to the language employed in Section 321 Cr.P.C., we may refer to the Constitution Bench decision in Sheonan- dan Paswan v. State of Bihar and others6 wherein the Court re- ferred to Section 333 of the old Code and after taking note of the lan- guage employed under Section 321 of the present Code came to hold that Section 321 enables the Public Prosecutor, in charge of the case to withdraw from the prosecution of any person at any time before the judgment is pronounced, but the application for withdrawal has to get the consent of the court and if the court gives consent for such with- drawal the accused will be discharged if no charge has been framed or acquitted if charge has been framed or where no such charge is re- quired to be framed. It clothes the Public Prosecutor to withdraw from the prosecution of any person, accused of an offence, both when no evidence is taken or even if entire evidence has been taken. The outer limit for the exercise of this power is ‘at any time before the judgment is pronounced’. It has also been observed that the judicial function 6 (1987) 1 SCC 288 implicit in the exercise of the judicial discretion for granting the con- sent would normally mean that the court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. The Constitution Bench after referring to the authorities in Bansi Lal v. Chandan Lal and others7, Balwant Singh v. State of Bihar8, Subhash Chander v. State (Chandigarh Admn.)9, Rajender Kumar Jain v. State10 and the principles stated in State of Bihar v. Ram Naresh Pandey11 came to hold thus:-

30. There is no basis for the petitioners to contend that the decision of the learned APP to file an application under sec- tion 321 Cr.P.C. was taken independently by him, whereas the subsequent decision after pursuing application under section 321 Cr.P.C. was under the dictates of the respon- dent. It could also be argued that the earlier decision to move applications under Section 321 Cr.P.C. was a bind- ing instruction to the APP, whereas, the subsequent in- struction given to him was to act according to his own judgment/conscience and decide whether or not to press the applications under section 321 Cr.P.C.”

47. We need not advert to the width of liberty granted to the accused persons by the writ court. The heart of the matter is whether the ap- proach by the learned single Judge in passing the impugned order is legally correct. There can be no cavil over the proposition that when an application of withdrawal from the prosecution under Section 321 Cr.P.C. is filed by the Public Prosecutor, he has the sole responsibility and the law casts an obligation that he should be satisfied on the ba- sis of materials on record keeping in view certain legal parameters. The Public Prosecutor having been satisfied, as the application would show, had filed the application. The said application was not taken up for hearing. The learned Magistrate had not passed any order granting consent for withdrawal, as he could not have without hear- ing the Assistant Public Prosecutor. At this juncture, the authority decided regard being had to the fact situation that the Assistant Pub- lic Prosecutor should withdraw the application and not press the same. After such a decision had been taken, as the application would show, the Assistant Public Prosecutor has re-appreciated the facts, applied his mind to the totality of facts and filed the application for not pressing the application preferred earlier under Section 321 Cr.P.C. The filing of application not to press the application cannot be compared with any kind of review of an order passed by the court. Question of review can arise when an order has been passed by a court. Section 362 Cr.P.C. bars the Court from altering or reviewing when it has signed the judgment or final order disposing of a case except to correct a clerical or arithmetical error. The said provision cannot remotely be attracted. The filing of the application for seeking withdrawal from prosecution and application not to press the application earlier filed are both within the domain of Public Prosecutor. He has to be satisfied. He has to definitely act independently and as has been held by the Constitution Bench in Sheonandan Paswan (supra), for he is not a post office. In the present case, as the facts would graphically show, the Public Prosecu- tor had not moved the application under Section 321 Cr.P.C. but only filed. He could have orally prayed before the court that he did not in- tend to press the application. We are inclined to think, the court could not have compelled him to assist it for obtaining consent. The court has a role when the Public Prosecutor moves the application seeking the consent for withdrawing from the prosecution. At that stage, the court is required to see whether there has been indepen- dent application of mind by the Public Prosecutor and whether other ingredients are satisfied to grant the consent. Prior to the application being taken up being moved by the Public Prosecutor, the court has no role. If the Public Prosecutor intends to withdraw or not press the application, he is entitled to do so. The court cannot say that the Public Prosecutor has no legal authority to file the application for not pressing the earlier application. It needs no special emphasis to state that the accused persons cannot be allowed to contest such an appli- cation. We fail to fathom, how the accused persons can contest the application and also file documents and take recourse to Section 91 Cr.P.C. The kind of liberty granted to the accused persons is abso- lutely not in consonance with the Code of Criminal Procedure. If any- one is aggrieved in such a situation, it is the victim, for the case insti- tuted against the accused persons on his FIR is sought to be with- drawn. The accused persons have no role and, therefore, the High Court could not have quashed the orders permitting the prosecution to withdraw the application and granting such liberty to the accused persons. The principle stating that the Public Prosecutor should ap- ply his mind and take an independent decision about filing an appli- cation under Section 321 Cr.P.C. cannot be faulted but stretching the said principle to say that he is to convince the court that he has filed an application for not pressing the earlier application would not be appropriate. We are disposed to think so as the learned Magistrate had not dealt with the earlier application. Therefore, the impugned or- der dated 30.07.2015 passed by the High Court is set aside. As the impugned order is set aside, consequentially the order passed by the learned Magistrate on 22.09.2015 has to pave the path of extinction and we so direct. The learned Magistrate is directed to proceed with the cases in accordance with law. We may hasten to add that we have not expressed any opinion on the merits of the case. All our ob- servations and the findings are to be restricted for the purpose of ad- judication of the controversy raised.