Judgment 1. The complainants complaint before the Chief Judicial Magistrate, Bhagalpur, has been aborted by the interference of the Assistant Public Prosecutor acting under S.321 of the Code of Criminal Procedure (hereinafter referred to as the Code). 2. It is alleged in the complaint that on 18-6-1982 at about 8 a.m. while the complainant was sitting at his darwaza, the opposite party Nos. 2 and 3 along with 25-30 unknown persons came at his darwaza, and surrounded the complainant. While the complainant was fleeing away on his cycle, the opposite party No. 2 fired his gun at the complainant but it did not hit him. This matter was reported to the Police, who according to the petitioner advised him to file a complaint against the opposite party Nos. 2 and 3 because they were influential persons. A complaint was subsequently lodged on 19-6-1982. 3. After the complainant had been examined on solemn affirmation, the complaint petition was referred to the Police for investigation under S.202(1) of the Code. Digressing here, I may state that the reference to the Police has to be treated to be under S.202(1) of the Code and not under S.156(3) of the Code because the petitioner complainant had been examined on solemn affirmation. If the matter had been sent to the Police before such an examination then it would have been an investigation under S.156(3) of the Code. This is a very well settled situation of law. The Police after investigation, submitted final form on which the Court is said to have taken cognizance, an act that was no longer justified in law because it had already taken cognizance after examining the complainant on solemn affirmation. It should have treated the final form as a report of investigation under S.202 of the Code. The process issued by it, therefore, will remain a process issued on the basis of the complaint petition. 4. While the matter was still pending before the Chief Judicial Magistrate, the Assistant Public Prosecutor intervened and filed a petition under S.321 of the Code for the withdrawal of the prosecution on the ground that the prosecution is inexpedient and it has been decided by the appropriate authority to withdraw the case. The Chief Judicial Magistrate, patently impressed by the higher authorities, allowed the withdrawal without examining the illegality in the procedure itself. Two illegalities were patent. The Chief Judicial Magistrate, patently impressed by the higher authorities, allowed the withdrawal without examining the illegality in the procedure itself. Two illegalities were patent. Firstly, the A.P.P. till the matter had been committed to the Sessions for trial, could not come in the picture in a prosecution initiated on a complaint. It is only when the two channels of the prosecution in a warrant trial based on their method of initiation reach their confluence after commitment that under S.225 of the Code, the P.P. becomes the sole repository of the power under S.321 of the Code but till then the interference of the A.P.D. was entirely uncalled for. Secondly, it is now well settled that the Public Prosecutor has to act on his own volition. The decision to withdraw has to be entirely his own. He can consider the instructions from the appropriate authority but he is not bound by it. From the petition (Annex.-2) it is patent that he was acting only on the direction of the appropriate authority. This legal situation has now received its fullest consideration in the case of Sheonandan Paswan V/s. State of Bihar, AIR 1983 SC 194 : (1983 Cri LJ 348). 5. In the result, this application is allowed and the impugned order allowing the withdrawal of the prosecution is set aside. The matter is remitted to the Chief Judicial Magistrate, Bhagalpur, to proceed in accordance with law from the stage the prosecution was withdrawn.