BHATT, J. ( 1 ) HE petitioner who is an original complainant has assailed the order passed below Exh. 8 in Criminal Case No. 32 of 1987 by the learned j. M. F. C. Bajana on 16-9-1987, under the provisions of Sec. 397 read with sec. 401 of the Code of Criminal Procedure, 1973 (Code for short ). A resume of the relevant facts may briefly be stated at this stage. ( 2 ) THE petitioner who is an original complainant filed a criminal complaint against the opponents Nos. 1 to 4 who are original accused persons Nos. 1 to 4, in the Court of Judicial Magistrate First Class, Bajana for the offences punishable under Secs. 170, 341, 342, 347, 348, 350, 504, 120-B and 34 of the Indian Penal Code. The learned trial Magistrate was pleased to refer the complaint to Police for Investigation by invoking the provisions of Sec. 156 (3) of the Code. ( 3 ) UPON the investigation by the Police, charge-sheet was submitted against the opponents Nos. 1 to 4 for various offences and the case was registered as Criminal Case No. 32 of 1987. ( 4 ) THE opponents Nos. 1 to 4, original accused persons, are the officers of the Income-lax Department against whom the present petitioner filed complaint alleging that they, forcibly, took thumb-impression of complainant and his son on blank piece of paper. The petitioner was informed by one Jasubhai that he and some other persons who had contributed towards the loan of Rs. 1,20,000/ - were required to file affidavits in Ahmedabad Income-tax Office. On receiving these instructions, the petitioner and his three sons and one Habibkhan had filed affidavits on 3-2-1986, at Surendranagar, regarding the monetary transaction by which in all Rs. 1,20,000. 00 were lent to Jayantibhai. It is further alleged that on 4-2-1986, the petitioner was at his residence and he was called at the outskirt of the village under the pretext that the officers of the (1) : 1987 (1) GLH 474 , land Mortgage Bank had come. In the same way three sons of the petitioner and one Habibkhan were also called. It is the case of the petitioner that he and relatives believed the message to be true and went to the outskirt of the village where they found some persons sitting in the car. In the same way three sons of the petitioner and one Habibkhan were also called. It is the case of the petitioner that he and relatives believed the message to be true and went to the outskirt of the village where they found some persons sitting in the car. The persons sitting in the car, themselves, introduced as the officers of the Land Mortgage bank. They started making inquiry about the transaction with Jusubhai and thereafter each one of them was forced to sign or put thumb-impression on a blank piece of paper. It is further alleged that each one of them was threatened and harassed for a long time and when any one who tried to go away, (he) was. forcibly, kept back. They were also given several threats. On the aforesaid allegation a complaint was lodged against the officers of the Income-tax department. ( 5 ) IN the course of proceedings, before the learned Magistrate the original complainant submitted an application that he should be allowed to engage an advocate of his own choice in place of Addl. Public Prosecutor who was in charge of the said criminal case. After hearing the parties, the Magistrate was pleased to reject the application, on 16-9-1987. This contention of the complainant that the charge of conduct of the said criminal case should not be with the Addl. Public Prosecutor came to be rejected. Hence, this revision. The contention of the petitioner is that he has a legal right to conduct this case in the way he likes and that the Addl. Public Prosecutor appointed by the Government cannot conduct the said criminal case as it was based on his private complaint. In short, it is the case of the complainant that when the Court takes cognizance of an offence on the basis of a charge-sheet submitted under Sec. 173 of the Code arising out of private complaint filed in the Court, the case does not become a police case. This contention is, rightly, rejected by the learned trial Magistrate. One of the allegations of the petitioner is that the Addl. Public Prosecutor is appointed by the Government and the accused persons are influential officers of the Income-tax Department and therefore, the Additional Public Prosecutor would not be able to act independently. It is also the case of the petitioner that the Addl. One of the allegations of the petitioner is that the Addl. Public Prosecutor is appointed by the Government and the accused persons are influential officers of the Income-tax Department and therefore, the Additional Public Prosecutor would not be able to act independently. It is also the case of the petitioner that the Addl. Public prosecutor in charge of the case has already given an application under Sec. 321 of the Code for withdrawal of criminal case against the persons who are influential officers. Therefore, the petitioner has contended that he can have no faith in such a prosecutor and that he can never bslieve that such prosecutor will do full justice to his case. ( 6 ) IN view of the facts of the present case, it cannot be contended that the petitioner has a right to engage a lawyer of his own choice who should conduct the criminal trial pending before the Court. The learned trial Magistrate has by passing a reasoned order, rightly, rejected such contention. Needless to mention that a prosecution of an offender certainly is not only intended as a redressal to the aggiieved individual. The purpose of criminal prosecution and the objects sought to be secured by prosecuting an offender cannot be lost sight of. The main purpose of prosecution process is to book the offender and to seek his punishment in case. he is found guilty. Essentially, such a function is of State. Since any offence is conceived as committed against the society and it is the State which has responsibility of prosecution. That is the reason why the provision is made in the Code whereby, the charge of criminal trial remains with the prosecutor who is appointed by the competent authority. The prosecutor is as such a"pro bono publico". The State is in charge of prosecuting process and the state which has a responsibility of prosecution has to secure justice from the competent Court, in case of any commission of an offence. Thus, the entire responsibility of prosecution proceedings is on the part of the State. It is in the discharge of this function, the Parliament has designedly prescribed such provision under the provisions of Sec. 24 in the Code. Therefore, it will be necessary to advert to the provisions of the Code. Section 24 provides appointment of Public Prosecutors. Thus, the entire responsibility of prosecution proceedings is on the part of the State. It is in the discharge of this function, the Parliament has designedly prescribed such provision under the provisions of Sec. 24 in the Code. Therefore, it will be necessary to advert to the provisions of the Code. Section 24 provides appointment of Public Prosecutors. Public Prosecutor has been denned in Sec. 2 (u): "public Prosecutor means any person appointed under Sec. 24 and includes any person acting under the direction of the Public Prosecutor. "it will be, also, expedient to refer to the provisions of Sec. 25 of the code. It provides for an appointment of Assistant Public Prosecutor in the courts of Magistrates in every district by the State Government. It is, therefore, necessary to advert to the provisions of Sec. 25 which reads as under :"assistant Public Prosecutors:- (I.) The State Government shall appoint in every district one or more Assistant Public Prosecutors for conducting prosecutions in the courts of Magistrates. (1a) The Central Government may appoint one or more Assistant Public prosecutors for the purpose of conducting any case or class of cases in the Courts of Magistrates. (2) Save as otherwise provided in sub-sec. (3), no Police Officer shall be eligible to be appointed as an Assistant Public Prosecutor. (3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, the District Magistrate may appoint any other person to be the Assistant public Prosecutor in-charge of that case. Provided that a Police Officer shall not be so appointed : (a) if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted; or (b) if he is below the rank of Inspector. "the role of the prosecutor in any criminal trial whether at the instance of State or of Private Party is to safeguard interest of both complainant and the accused. ( 7 ) IT will be also interesting to refer to the provisions of Sec. 301 of the Code which reads as under :"appearance by Public Prosecutor:- (1) The Public Prosecutor or Assistant Public prosecutor in-charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. ( 7 ) IT will be also interesting to refer to the provisions of Sec. 301 of the Code which reads as under :"appearance by Public Prosecutor:- (1) The Public Prosecutor or Assistant Public prosecutor in-charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. (2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in-charge of the case shall conduct the prosecution and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may with the permission of the Court, submit written arguments after the evidence is closed in the case. "at this stage, provisions of Sec. 302, also may be referred; Sec. 302 reads as under :"permission to conduct prosecution : (I) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a Police officer below the rank of Inspector, but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public , Prosecutor, shall be entitled to do so without such permission. Provided that no Police Officer shall be permitted to conduct the prosecution if he had taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) any person conducting the prosecution may do so personally or by a pleader. "it is very clear from the statutory provisions as aforesaid, that Sec. 24 enables a public prosecutor to be appointed for every High Court and that provision substantiates that such appointment should be after consultation with the High Court. Section 24 (2) of the Code enables appointment by the Central government, of one or more public prosecutors for the purpose of conducting any case or class of cases in respect of any District or local area. Section 24 (3) similarly, enables the State Government to make such appointment. Section 25 of the Code deals with the appointment of Assistant Public Prosecutors in every district by the State Government and this is for conducting prosecutions in the Courts of Magistates. Section 24 (3) similarly, enables the State Government to make such appointment. Section 25 of the Code deals with the appointment of Assistant Public Prosecutors in every district by the State Government and this is for conducting prosecutions in the Courts of Magistates. Obviously, State has a responsibility to appoint a person who is considered to be competent to discharge the duties of prosecutor in the Magisterial Courts and it is in the exercise of this duty that the State government is called upon to appoint an Assistant Public Prosecutor. It is not the only function of the prosecutor to secure favourable result or convictions, he is an important officer of the Court who is to assist the Criminal Court in its search of truth. It should not be the case that whether a private party will be able to engage a lawyer of more eminence to conduct the case than asstt. Public Prosecutor available for the matter. May be, in some cases a private party may be able to engage an Advocate of his own choice and that too of higher eminence or longer standing than the Asstt. Public Prosecutor. That is not the criteria with which the criminal proceedings are equired to be conducted. It is the unalianable function of the State to prosecute or to persue the criminal proceedings and that function must be discharged by a competent prosecutor appointed by the State. Needless to reiterate that the A. P. P. or for that matter any Government must have no personal commitment in obtaining a conviction against the accused. No doubt, it is the function of the prosecutor to place all the facts before the Court and to assist the Court in a very efficient conducting of the criminal proceedings of the prosecution. Evidently, the complainant or his Advocate, and also naturally, would not be able to approach this function as dispassionately and objectively as public Prosecutor. Whatever may be the reason, when the State prosecutes naturally, it should be States responsibility to appoint the prosecutor and the private complainant or his lawyer should have no grievance on that count. Again there is no dispute about the fact that in the present case the cognizance of the offence is not taken on the complaint of the complainant who had filed private complaint in the Court of trial Magistrate against the accused persons. Again there is no dispute about the fact that in the present case the cognizance of the offence is not taken on the complaint of the complainant who had filed private complaint in the Court of trial Magistrate against the accused persons. The cognizance of the offence of the case has been taken over by the learned Magistrate only when the police submitted the report after making the investigation, pursuant the order passed by the learned trial Magistrate under Sec. 156 (3) of the Code. Since, there is no dispute about the fact that the cognizance of the offence is based on the report of the Police under sec. 156 (3) of the Code, it can never be contended that the case was instituted on the complaint filed by the complainant-petitioner herein. ( 8 ) IT is settled proposition of law that private complainant filing a complaint in the trial Court is referred to the Police for investigation by the Magistrate under Sec. 156 (3) of the Code and the cognizance is taken by the Magistrate on the basis of the report of the Police after investigation, then, it becomes a police case and the case cannot be said to be instituted on a private complaint. This proposition is also reinforced by the ratio of the decision of the Division bench of this Court in case of Shantilal Mohanfal Shah v. Chandrakant A. Thakkar, reported in 1987 (1) GLH 474 : [ 1987 (2) GLR 784 ]. Therefore, the contention that the complainant is entitled to engage Advocate of his own choice to conduct criminal case as cognizance is based on the private complaint cannot be accepted. In view of the facts and circumstances of the present case the private complainant or his Advocate has no right to participate for the conduct of the criminal case. The learned Counsel for the petitioner has contended that the Asstt. Public Prosecutor has already submitted an application for withdrawal of the complaint under Sec. 321 of the Code. This aspect has nothing to do with the right to conduct the criminal proceedings. The code prescribes a provision for withdrawal of the prosecution as contemplated in Sec. 321 of the Code. Public Prosecutor has already submitted an application for withdrawal of the complaint under Sec. 321 of the Code. This aspect has nothing to do with the right to conduct the criminal proceedings. The code prescribes a provision for withdrawal of the prosecution as contemplated in Sec. 321 of the Code. Merely, because the A. P. P. has, already, submitted an application for withdrawal of the case under Sec. 321 of the Code would not "ipso facto" go to suggest that he is not acting objectively or independently. It this stage, it would be material to refer to the provisions of Sec. 32 J of the Code :"withdrawal from prosecution : Any 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 any one 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; (b) if it is made after a charge has been framed, or when under this Code no change is required, he shall be acquitted in respect of such offence or offences. "section 321 of the Code, no doubt enables the Public Prosecutor or Assistant public Prosecutor in-charge of a criminal case may withdraw from the prosecution with the consent of the Court. It is not sufficient for the Public prosecutor, merely to say that it is not expedient to proceed with the prosecution. He has to apply his mind to the facts of the case independly without being subjected to any outside influence. It is true he can be advised and instructed by the State, as he is appointed of the Government for conducting any prosecution or proceedings on behalf of the Government concerned. He has to apply his mind to the facts of the case independly without being subjected to any outside influence. It is true he can be advised and instructed by the State, as he is appointed of the Government for conducting any prosecution or proceedings on behalf of the Government concerned. Nonetheless the Public Prosecutor has to examine the merits of the case or the instruction of the Government and he has to makes out some grounds, which should show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced. ( 9 ) THE statutory responsibility for deciding upon withdrawal squarely vests in the Public Prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The ultimate guiding consideration must always be the cause of administration of justice and that is the touch-stone by which question must be determined whether the prosecution should be allowed to be withdrawn. Justice ordinarily demands that every case must reach its destination not interrupted en route. The Court has to be vigilant when a case has been pending before it and not to succumb to executive suggestion made in the form of application for withdrawal with a bunch of papers therewith. ( 10 ) THOUGH a Public Prosecutor may receive instructions from Government, the ultimate decision is to be taken by him. Under Sec. 321 of the Code enables him to withdraw from the prosecution with the consent of the Court. However, it cannot be said that Public Prosecutors action will be illegal if he receives any communication or instruction from the Government concerned. There is no bar or ban on the Public Prosecutor to receiving any instruction from the Government before he files an application for withdrawal of the prosecution case. If the Public Prosecutor receives such instructions and on examining the merits acts, it cannot be said to have acted under the extraneous influence. At times, the Public Prosecutor may not file an application for withdrawal of a case without instructions from the competent authority of the government. If the Public Prosecutor receives such instructions and on examining the merits acts, it cannot be said to have acted under the extraneous influence. At times, the Public Prosecutor may not file an application for withdrawal of a case without instructions from the competent authority of the government. ( 11 ) HOWEVER, it may be noted that Sec. 321 of the Code shows that it does not prescribe any ground nor does it put any qualification on the right of the Public Prosecutor to withdraw from prosecuting a particular criminal matter pending before the Court. All that is provided is that he can do so only with the consent of the Court in which the criminal matter is pending. The function of the Court, in this respect, is to prevent the abuse of such power. It is the duty of a Court in granting its consent to withdrawal to apply its judicial mind. It is also necessary for the Court to apply its mind and satisfy itself that there is a sufficient cause for the withdrawal of the prosecution. It will be useful for the appellate authority to consider as and when challenged in the higher forum. It will be then. possible for the appellate Court to know that the Court concerned has applied its mind to the application for withdrawal by the Public Prosecutor or not. Though the withdrawal of the prosecution is an executive function of the Public prosecutor from which statutory discretion is vested in him, the discretion is neither absolute nor unrefutable but it is subject to the Courts supervisory function. Any move by the Public Prosecutor for withdrawal of the prosecution will be subject to judicial review as can be seen from the provisions of Sec. 321 of the Code. Therefore, the contention that the application for withdrawal of the case under instruction from Govt. is already filed by the Asstt. Public prosecutor would not ipso dixit, be an indication, that he is not performing his duties independently or objectively. Therefore, the contention in this behalf, raised on behalf of the petitioner is sans substance. It is, therefore, rejected. ( 12 ) IT may also be mentioned that while dismissing this revision petition that it will be open for the petitioner original complainant to pursue the remedy available to him under the provisions of Sec. 301 (2) of the Code. Therefore, the contention in this behalf, raised on behalf of the petitioner is sans substance. It is, therefore, rejected. ( 12 ) IT may also be mentioned that while dismissing this revision petition that it will be open for the petitioner original complainant to pursue the remedy available to him under the provisions of Sec. 301 (2) of the Code. The application under Sec. 321 of the Code submitted by the Asstt. Public Prosecutor for the withdrawal of the case will be subject to the statutory requirement like consent of the Court. Obviously, the Court will take into account all the facts and circumstances before deciding whether or not to grant consent to withdrawal of the prosecution under Sec. 321 of the Code. With these observations, the present revision petition merits only rejection. This Court has no hesitation in finding that the petitioner has no any statutory right or authority to insist to conduct criminal case pending before the trial Court only by Advocate of his own choice in place of A. P. P. who is in-charge of the said case. Since this Court has found that the cognizance of the case is taken by the trial court on the basis of report submitted by the Investigation under Sec. 156 (3) of the Code, the complainant or his Advocate has no right to be in-charge of the conduct of the case except the limited rights as contemplated under sec. 301 (2) of the Code. It is clearly found that the Court has not taken cognizance on the basis of the complaint filed by the complainant and that the cognizance is taken by the trial Court on the basis of the report of the investigation under Sec. 156 (3) of the Code, it can never be said that the case is instituted on a complaint filed by the applicant. In the facts and circumstances, this Court has no hesitation in finding that the conclusion of the trial Court is fully justified. Hence, this Criminal Revision Application is dismissed. Rule is discharged. Ad interim stay granted against trial proceedings shall stand vacated. .