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4. However, by an order dated 21.2.2000 the learned CJM was pleased to reject the application of the APO dated 4.8.1999 for want of sufficient grounds. It has been observed in the order dated 21.2.2000, inter alia, that the application for withdrawal was accompanied by a letter of the ADM (City), Varanasi, dated 3.7.1999, and the Government Order dated 9.7.1999. The objection by the informant Arvind Kumar dated 15.9.1999 had also been placed before the Court. The said objection also contained the report of the District Magistrate, Varanasi, dated 27.5.1999 to the State government's proposal for withdrawal of the case which was annexed to the application. The complainant also filed documents showing that a political conference of the BJP, was convened at Garwa Ghat Ashram, Varanasi, from 19th to 21st March, 1999, and an order passed by the I ACJM on 21.3.1996 in Crl. Case No. 2577 of 1995: State v. Rakesh Kumar Srivastava, under Sections 147, 148, 149, 302 IPC, PS Chetganj, Varanasi, which were annexed to the written objections. It was further observed in the order that the APO had argued that the Government after thoughtful consideration had decided to take back the case in public interest and he had been issued necessary directions for the said purpose. The decision was of the Ministry. The accused were sadhus, who were running a math. The photocopies filed by the complainant could not be seen in evidence, hence the Court should give consent for withdrawal of the prosecution. The counsel for the accused also supported these arguments.

7. In the meanwhile ii appears that a second application dated 24.5.2000 under Section 321 Cr.P.C. was moved on behalf of the applicants. In this application the APO further mentioned that he had perused the case-diary and was of the opinion that the case was not fit to be proceeded with. The State Government had taken a decision to withdraw the case in public interest and the evidence was weak, hence the prosecution should be withdrawn on the ground that although the informant had described himself as an eye-witness, in Sir Sundar Lal (BHU) Hospital, when the injured Shanta Singh was brought there at 10.30 am, he was not present for entering his father's name and address which cast a suspicion that the informant was not present there when his father was being hospitalized in the BHU hospital, and that the constable R.N. Misra of PS Bhelupur had only given described the deceased as ex-Block Pramukh instead of mentioning his address. According to the log book of CCR, which was present in the case-diary, at 10.10 am an information was received that a man had been shot at by some unknown assailants at the Gurudham crossing. At 10.35 am another message was received that there was a suspicion that the name of the injured was Shanta Singh, who was an ex-Block Pramukh of Naugarh, and who was involved in a dispute of Garwa Ghat. At 10.40 am there is an entry about the death of the injured Shanta Singh and that the elder son of the deceased, Munna Singh, was ordered to be called from Chakia and also the other details of the deceased were sought from Garwa Ghat. According to the entry in the log book, the Hero Honda (motorcycle) which was driven by two persons was green in colour whereas the informant who was an eye-witness had mentioned that there were two motorcycles but there was no mention of their colour and other particulars of the motorcycle in the report. Although the FIR mentioned that three days earlier these accused persons had threatened to murder the deceased, yet at the time of the incident the deceased was going to the civil Court leaving behind his revolver in his room which was not probable. The name of the accused appeared to have been introduced in an unnatural manner in the FIR. It was well known that Garwa Ghat Ashram was connected with the people of the majority community and that the accused of the case were persons associated with prayers and rituals who were unlikely to commit such a crime. Because of the absence of the information in the entry of the log book which was maintained at the time of his admission in BHU and the other weaknesses in the FIR, it appeared that on the basis of some old enmity and suspicion the accused had been implicated in the case and looking to the weaknesses of the case and suspicious circumstances and the fact that the accused were associated with a religious institution, it was in the public interest that the case be withdrawn. The other application dated 4.8.99 had only been rejected by the CJM on 21.2.2000 because no basis had been provided by the APO for recommending withdrawal of the case, which was being provided by the subsequent application dated 24.5.2000.

8. However, the CJM by his order dated 11.2.2002 was again pleased to reject the application under Section 321 Cr.P.C. dated 24.5.2000. In the said order, after narrating the facts of the case, as mentioned in the FIR, it was mentioned that after investigation the accused had been charge-sheeted under Sections 302, 504, 506 and 34 IPC and that the State Government had taken a decision to withdraw the prosecution in the public interest and the other facts mentioned in the application of the APO dated 24.5.2000 have been narrated in the order. The order further described the objections of the informant to the said application by the APO. The order mentions the objections of the informant to the said application of the APO that all the facts relating to the incident were prima facie established and that the witnesses had filed affidavits in the Court stating that they were interested in giving evidence in Court. The prosecuting officer had deliberately concealed these facts and moved the application under Section 321 Cr.P.C. When the earlier application dated 4.8.1999 under Section 321 Cr.P.C. moved by the APO had been rejected on merit on 21.2.2000 wherein even the cases of the apex Court were mentioned, the criminal revision against the said order had been got dismissed. The second application by the APO was not maintainable and the Court was not entitled to review its earlier order dated 21.2.2000. The Court had full powers to criticize or review an order passed by the Government. In this case the BJP had colluded with the accused and the APO for stalling farther proceedings in the matter and that by giving undue importance to this matter there would be a violation of the legal system. The DM and SSP had also opposed the withdrawal of the prosecution. After considering the contentions of both the parties and the application and written objections to the same it was observed in the order dated 11.2.2002 that the earlier order had been passed by his predecessor on 21.2.2000 on merit after thoughtful consideration of the submissions of the parties. It was clearly mentioned therein that no ground was mentioned in the application for taking back the prosecution or showing how the same was against the public interest even in the application dated 24.5.2000. The claim of the public prosecutor that there was no reliable evidence, direct and circumstantial was belied by the fact that the witnesses had filed affidavits indicating that it was the accused who murdered the deceased and that they wanted to give evidence in the matter in Court, and only because the State Government wanted to withdraw the prosecution, it was not a good ground for the public prosecutor to seek withdrawal of the prosecution but the prosecutor ought to be also concerned with the maintenance of administration of public justice and it was not spelled out how the withdrawal of the prosecution was in the public interest. The revision against the order passed by his predecessor refusing to consent to the withdrawal of the prosecution had been rejected as being time-barred. In view of the aforesaid circumstances, the learned Magistrate was of the view that the application dated 24.5.2000 under Section 321 Cr.P.C. be also rejected.

13. Likewise, the ground taken in paragraph 13 of the written arguments that learned CJM, Varanasi, by its order dated 11.2.2002 again rejected the application mainly on the ground that the earlier application had been rejected, is not factually correct. This was a detailed order which narrated the facts of the case mentioned in the FIR, the filing of the charge-sheet under Sections 302, 504, 506 and 34 IPC, the fact that the state government had taken a decision to withdraw the prosecution in public interest and the other facts mentioned in the application of the APO dated 24.5.2000, the objections of the informant to the said application by the APO. The order even goes on to observe that there was a prima facie case relating to the incident and the witnesses had even filed affidavits in the Court that they supported the prosecution version and intended to give evidence in Court and that the prosecuting officer had deliberately concealed these facts when moving the application under Section 321 Cr.P.C. When the earlier application dated 4.8.1999 under Section 321 Cr.P.C. had been rejected on 21.2.2000 by a reasoned order and wherein even a few cases of apex Court were discussed and the criminal revision against the said order has also been dismissed as being beyond time and not pressed. It was further observed that the second application by the APO was not maintainable and the Court was not entitled to review its earlier order dated 21.2.2000. Furthermore, the Court had full powers to review an order passed by the government. It appeared that the BJP had colluded with the accused and the APO for stalling further proceedings in the matter and such an approach would be destructive of the legal system. The District Magistrate and the SSP had also opposed the withdrawal of the prosecution only on the mere asking of the state government.