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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.”

35. In this context, a reference to a three-Judge Bench decision in V.S. Achuthanandan v. R. Balakrishna Pillai and others[12] is pertinent. In the said case, the Court after referring to the principles stated by the Constitution Bench in Sheonandan Paswan (supra) while upholding the view of the learned Special Judge in rejecting the application filed by the Assistant Public Prosecutor under Section 321 Cr.P.C. adverted to the question as it arose therein whether it was legally permissible for the High Court and it was justified in setting aside the order of the learned Special Judge declining to give consent for withdrawal of prosecution of the accused. The Court did not agree with the view of the High Court by holding the High Court’s order did not at all deal with the only ground on which the application was made by the Special Public Prosecutor and which was found non-existent by the learned Special Judge in his order that was challenged before the High Court in revision. The High Court embarked upon a roving inquiry in an extraneous field totally ignoring the fact that if the ground urged for withdrawal of the prosecution was non-existent and there was prima facie material, if believed, to support the prosecution then the motive for launching the prosecution by itself may be of no avail. The Court also opined that the High Court missed the true import of the scope of the matter, for it went into grounds which were not even urged by the Special Public Prosecutor in his application made under Section 321 Cr.P.C. or otherwise before the Special Judge. Exception was taken to the fact that the High Court delved into administrative files of the State which did not form part of the record of the case and accepted anything which was suggested on behalf of the State Government overlooking the fact that for the purpose of Section 321 Cr.P.C. it is the opinion of the Public Prosecutor alone which is material and the ground on which he seeks permission of the court for withdrawal of the prosecution alone has to be examined.

30. There is no basis for the petitioners to contend that the decision of the learned APP to file an application under section 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 respondent. It could also be argued that the earlier decision to move applications under Section 321   Cr.P.C. was a binding instruction to the APP, whereas, the subsequent instruction 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 approach 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 basis 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 hearing the Assistant Public Prosecutor. At this juncture, the authority decided regard being had to the fact situation that the Assistant Public 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 Prosecutor 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 intend 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 independent 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 application. 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 absolutely not in consonance with the Code of Criminal Procedure. If anyone is aggrieved in such a situation, it is the victim, for the case instituted against the accused persons on his FIR is sought to be withdrawn. 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 apply his mind and take an independent decision about filing an application 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 order 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 observations and the findings are to be restricted for the purpose of adjudication of the controversy raised.