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(c) Mr. K. Chandru, learned senior counsel, appearing for the third respondent in W.P. No.1239 of 2004 and Mr. R. Shanmugasundaram, learned counsel, appearing for the third respondent in W.P. Nos.1238 and 1240 of 2004, support the argument of Mr. V.T. Gopal petitions are not maintainable. They further submit that the Review Committee has got jurisdiction to go into the validity of the proceedings under POTA. They submitted that the functions entrusted to the Review Committee do not encroach upon the judicial power of the State and until conclusion of the prosecution launched agains the harshness of the provisions of POTA and on the analogy of TADA, the constitutional validity of which was upheld, and basing on the judgments of Supreme Court, periodical reviews can always be made by the Review Committees set up and there is nothing wrong in the Review Committee appointed in the instant cases going into the applicability or otherwise of POTA to the accusations made in the instant case and more particularly in view of the judgment of the Supreme Court in the case of PEOPLES' UNION OF CIVIL LIBERTIES (supra). It is further submitted that the criminal case is deemed to be pending until judgment is delivered and mere framing of the charge and even progress in trial cannot stand in the way of withdrawing the proceedings and in this connection, cited Section 321 of Code of Criminal Procedure, which permits the withdrawal.

(b) Now, the cases lodged against the accused/respondents under POTA are at part-heard trial stage. Eight witnesses have been examined on behalf of the prosecution and the time has been set by the High Court earlier in bail petitions, to conclude the trial by the end of June 2004. But that cannot stop the Review Committee from considering the matter as to the existence of the prima facie case regarding the applicability of POTA. The exercise of power by the Review Committee cannot be termed as scuttling the judicial process. In our constitutional scheme, the powers of legislature, executive and judiciary are earmarked and no organ can encroach on the powers of the other and every organ has to be within the limitations prescribed by the Constitution. We need not refer to several judicial precedents set by the Supreme Court on this point. Suffice it to refer the latest judgment of the Supreme Court in BAKHTWAR TRUST v. M.D. NARAYANAN remove the basis of a judgment but cannot annul a judgment. In a criminal case, which is cognizable, the court frames charge of existence of prima facie case. But that is not a decision on merits. Even the negation of plea of discharge cannot be construed as a decision that accused are liable to be convicted. Criminal cases are deemed to be pending and can be concluded only on the d judgment. Upto that stage, the prosecution can always be withdrawn subject to such limitations as are prescribed in Section 321 Code of Criminal Procedure. Of course, there is a difference in the stages of withdrawal. If withdrawal is made before framing of charge, the effect is discharge. But if it is made after framing of the investigating officer has got no choice. But if the matter is brought to the notice of the Public Prosecutor and particularly from the State Government seeking withdrawal of prosecution, steps can be taken in that regard. A plea made to the Public Prosecutor to wit proceedings cannot be construed as an encroachment on the judicial power. At any stage before the pronouncement of the judgment in a criminal case, the State Government can instruct the Public Prosecutor to withdraw the prosecution. In POTA also, the State Government can exercise such power. But if it is not willing to do so, it Review Committee exercising the powers under Section 60 thereof and the Review Committee can always decide as to whether, in its opinion, the case is a fit one to proceed further even if it is in part-heard stage. If the Review Committee comes to the conclusion that the case is fit to be withdrawn from prosecution under POTA, it the State Government, which, in turn, has to instruct the Public Prosecutor to invoke Section 321 of Code of Criminal Procedure. The role of Review Committee is limited only that far and no further. When the role of the Review Committee ends, then it is for the Public Prosecutor to apply his mind independently according to the well settled legal principles interpreting Section 321 of Code of Criminal Procedure and ultimately it is for the Special Court trying the decide whether the plea of the Public Prosecutor to withdraw the prosecution, if made, is acceptable or not. The submissions of Mr.V.T. Gopalan that sub-Section (2) with its proviso of Section 195 of Code of Criminal Procedure has to be made applicable for withdrawing the prosecution under POTA cannot be accepted. It is only Section 321 of Code of Criminal Procedure, which is applicable for withdrawing prosecution under POTA. Hence, we hold that upto the stage of form opinion regarding prima facie case under POTA, the Review Committee's decision, one way or the other, cannot amount to interference in the judicial process. We next proceed to the last point.

ISSUE (iv) - WHETHER THE IMPUGNED ORDER OF REVIEW COMMITTEE IS SUSTAINABLE

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15.Review Committee held sittings and heard on the preliminary objections addressed by the petitioner State Government. Objections raised by the State Government have been detailed above and we need not repeat the same. In view of our discussion on Issues (ii) and (iii), there is no hesitation to hold that the Review Committee has been validly constituted under POTA and that it is entitled to scrutinize the cases filed under POTA whether to proceed further in prosecution relating to the accused, who are arrayed as respondents and whose names have already been mentioned above. The Review Committee has rightly called for the records from the petitioner-S and the latter cannot offer any resistance for production of the said records. But, by that, the State Government cannot be the position of a subordinate to the Review Committee. State Government is a sovereign power and is entitled to exercise its sovereign functions in accordance with the Constitution. The Review Committee is a creature of a statute and is circumscribed by the l placed thereunder. The submission of Mr. V.T. Gopalan to make the State Government subservient to Review Committee cannot be countenanced. The State Government is entitled to express its views by producing the records and they have got to be considered by the Revi So far, the preliminary objections raised by the petitioner-State Government regarding the authority of the Review Committee to examine the prima facie case of prosecution have been overruled and rightly so. But there is no scope to interpret the impugned prov automatically entailing in withdrawal of proceedings de hors Section 321 of Code of Criminal Procedure. The argument of Mr. V.T. Gopalan that sub-Section (7) of Section 60 of POTA is in pari materia with sub- Section (2) of Section 195 of Code of Criminal Procedure, is totally unacceptable. Section 195 of Code of Criminal Procedure deals with prosecution for contempt of lawful authority of public servants and under sub-Section (2) of Section 195, the complaint lodge servant can always be withdrawn by an authority superior to the said public servant and unless the trial in the Court of first instance has been concluded, the Court, on receipt of a petition for withdrawal of such superior authority, shall order withdrawal of the complaint. This has got no application in prosecution under POTA. Only Section 321 of Code of Criminal Procedure is applicable in the instant case and in fact, that is the submission of Mr. K. Chandru, learn counsel. That is also the understanding of the Review Committee in paragraph 46 of its order, which has already been extracted above. The words in sub-Section (7) of Section 60 of POTA, '... pending against the accused shall be deemed to have been withdrawn from the date of such direction' shall have to be understood only in the context of Section 321 of Code of Criminal Procedure to mean that if the Review Committee forms an opinion that the prosecution under POTA against the accused respondents does not attract the provisions of POTA, appropriate directions can be issued to the Sta and if the directions are in the nature of addressing the Public Prosecutor to withdraw the prosecution, then such a direction is binding on the State Government. But the said direction is not binding on the Public Prosecutor as, under Section 321 of Code of Cri Procedure, he has to formulate his opinion on his independent application of mind and even if an application under Section 321 of Code of Criminal Procedure is filed, the ultimate arbiter is the Special giving due consideration to the opinion of the Review Committee. Now, the Review Committee shall proceed further in the ligh stated above.