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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.

9. Subsequently, Crl. Revision Nos. 82 of 2002 and 83 of 2003 were preferred by the applicants for challenging the aforesaid order dated 11.2.2002. One of the said revisions was preferred by the APO and the other by the accused and were decided together by a common order dated 22.5.2002. The same arguments that were raised before the CJM on earlier occasions were again reiterated before the revisional Court. After hearing both the parties, the revisional Court dismissed the said revisions on the grounds that it has been held by the apex Court in the case of Abdul Karim and Ors. v. State of Karnataka 2001 (42) ACC 54, that an application under Section 321 Cr.P.C. could not be allowed only on the ground that the State Government had taken a decision for withdrawing the prosecution and such an order could only be passed after examining the facts and circumstances of the case. In the present case, the subordinate Court had rejected an earlier application under Section 321 Cr.P.C. on 21.2.2000. After extensive hearing of the matter the criminal revision against the aforesaid order was dismissed as being beyond time. It was also observed in the revisional Court's order that earlier the learned Magistrate had held in his order that the contention in the application of the public prosecutor that the evidence collected was of a very weak nature, the circumstantial evidence was unreliable was belied by the record, because the informant who had lodged the FIR and his eye-witnesses had supported the prosecution version and had even filed affidavits corroborating their statements before the Court. The earlier order had become final, against which no review lay before the Magistrate. The main contention of the public prosecutor was that the state government wanted to withdraw the prosecution but an application could not be allowed on this ground. However, it could not be denied that both the questions of administration of public justice and public interest have to be taken into consideration when a decision is made for withdrawing a prosecution. In this matter, relating to murder, the witnesses were interested in giving evidence. In annexure - 1 to the application which was a letter of the district Magistrate it had been stated that a broad day light murder had been which was a heinous offence and that withdrawal of the prosecution would have adverse effect on the general public, hence he was not recommending the withdrawal of the prosecution. On considering the entire facts, the revisional Court found that the learned Magistrate had committed no illegality in rejecting the application for withdrawal of prosecution under Section 321 Cr.P.C. and consequently the two connected revisions were rejected.

Another contention made in the application No. 5-kha, that as the case could not be tried by the CJM, but only could be tried by the Sessions Court, hence the power for withdrawal of the prosecution under Section 321 Cr.P.C. only lay with the Court of session. This contention was rebuffed by the learned Sessions Judge that the disposal of the trial of the case and disposal of an application under Section 321 Cr.P.C. are separate things and that the CJM had jurisdiction for disposal of the said application and that the revision against the said order had already been rejected on 22.5.2002, holding that the said orders of the Magistrate was were appropriate and there was no illegality or jurisdictional flaw in the same. Even in the High Court in the application under under Section 482 Cr.P.C. no such prayer was made that the Magistrate had no jurisdiction to dispose of the application under Section 321 Cr.P.C. which was in any case moved by the prosecution in favour of the accused before the Magistrate. It was also observed that only if there was a new circumstance a fresh application under Section 321 Cr.P.C. could be moved but the facts of the case did not reveal any fresh circumstance. Some authorities cited by the parties were also considered in the order dated 24.4.2003 and after recording a finding that no new circumstance had arisen, the application was dismissed by the Addl. District and Sessions Judge by the aforesaid order. It was further observed that the order dated 11.2.2002 had been passed by the learned CJM after considering all the facts and circumstances in the application of the public prosecutor dated 24.5.2000; and, likewise, the revisional Court had also dismissed the aforesaid revision on 22.5.2002 after considering the entire matter and after holding the order of the learned CJM wholly legal and proper.

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.