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The Asst. Prosecuting Officer on thoughtful consideration of the facts and circumstances found it to be a fit case for withdrawal and moved application (Annexure 4 to the writ petition) dated 29.11.2012 under section 321 Cr.P.C. before C.J.M., Basti with a request to grant permission to the withdrawal of prosecution against the proforma respondents.

The learned C.J.M., Basti vide order dated 30.11.2012 dismissed the application on the ground that application merely speaks about withdrawal of prosecution in public interest but it has not been spelled out in the said application as to how the public at large would be served and benefitted by withdrawal of prosecution against the proforma respondents.

I have gone through the writ petition, the counter affidavit filed by proforma respondents, application moved under section 321 Cr.P.C. for permission of withdrawal, the case diary and all other material placed before me.

The learned counsel for the State has assailed the impugned judgment and orders on various grounds and has argued that the C.J.M., Basti and revisional court have passed wholly illegal and arbitrary orders without understanding the scope of section 321 Cr.P.C. and the function of the court in such matters.

The section 321 Cr.P.C. runs as under -

Section 321 Cr.P.C. - Withdrawal from Prosecution - 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 anyone or more of the offences for which he is tried; and, upon such withdrawal;

(a) If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

In the case of N. Natrajan Vs. B.K. Subba Rao (supra), the Hon'ble Supreme Court has held that the Public Prosecutor has full freedom to function effectively, independently and fearlessly. On one hand, he can ask the court for framing charge against the accused whereas on the other hand, on same evidence, he can request the court for dropping the proceedings.

The learned counsel for the proforma respondents has cited decision of this Court in the case of Ashraf Ali Vs. State of U.P. 2004 (2) JIC 201 (All) wherein this Court allowing the petition under section 482 Cr.P.C. filed against the refusal of the C.J.M., Jalaun to grant sanction u/s 321 Cr.P.C. observed that "The court's function is to give consent. This section does not obligate the court to record reasons before consent is given. All that is necessary to satisfy the section is to see that the Public Prosecutor acts in good faith and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is proper."