Order: The sequence of relevant facts: The petitioner lodged a private complaint against the respondents 6 to 8 and others before the X Metropolitan Magistrate, Secunderabad. The complaint was forwarded to the Gopalapuram Police Station, Secunderabad, on 21.10.2001. The complaint was registered as Cr.No. 263 of 2001 u/Secs. 420, 463, 465 R/w 34 IPC and investigation taken up. The Gopalapuram P.S forwarded the final report and laid a chargesheet. The investigation revealed that the six accused (including A.1 to A.3, the respondents 6 to 8 herein) committed offences punishable u/Sections 139, 468, 471, 406 and 420 r/w 34 IPC. On the filing of the chargesheet the case was numbered as CC No. 773/03 on the file of the X Metropolitan Magistrate, Secunderabad. The case is pending trial on the file of the II Additional Metropolitan Magistrate, Criminal Courts, Nampally, as CC No. 387/06 (after transfer ordered by the Metropolitan Sessions Judge, in Crl.Tr.M.P.No. 59/06, dated 3.4.2006). Respondents 6 to 8 earlier filed Crl.M.P. No. 2092/03 as A1 to A3; while A4 and A5 filed Crl.M.P.No. 3439/03 and A6 Crl.M.P.No. 3440/03 seeking their discharge from prosecution. By a common order dated 09.12.2003, the X Metropolitan Magistrate dismissed these applications. A4 and A5 then filed Crl.R.P.No. 84/04 before the Court of VI Additional Metropolitan Sessions Judge, Secunderabad, aggrieved by the order dated 9.12.2003 in Crl.M.P.No. 3439/03. This petition was dismissed on 12.5.2004. The respondents 6 to 8 (A1 to A3) preferred Crl.R.C.No. 9/04 (against the order dated 9.12.2003 dismissing Crl.M.P.No. 2093/03), before this court. This was withdrawn and dismissed as such on 23.3.2005. Unrelenting A4 and A5 filed Crl.P.No. 1654/05 challenging the order in Crl.R.P. No. 84/04 dated 12.5.2004. Initially a stay was granted which was later vacated on 30.06.2005. Thereafter A1 (R-6 herein) filed Crl.P.No. 4462/05 (challenging the order of the X addl. Chief Metropolitan Magistrate, Secunderabad in Crl.M.P.No. 3063/05) seeking quashing of the proceedings against her claiming that she was a juvenile at the time of committing the offence. Stay of all further proceedings of trial in CC No. 387/06 was initially granted, but eventually Crl.P.No. 4462/05 was dismissed on 26.7.2006. The accused then filed Transfer Miscellaneous Petition No. 59 of 2006 before the Metropolitan Sessions Judge, Nampally attributing bias to the Presiding Officer of the Court of the X Additional Metropolitan Magistrate, Secunderabad and obtained transfer of the case to the Court of II Additional Metropolitan Magistrate, Nampally. The accused then filed Transfer Miscellaneous Petition No. 59 of 2006 before the Metropolitan Sessions Judge, Nampally attributing bias to the Presiding Officer of the Court of the X Additional Metropolitan Magistrate, Secunderabad and obtained transfer of the case to the Court of II Additional Metropolitan Magistrate, Nampally. As the petitioner (is now aged about 83 years) was at an advanced age and the trial in C.C.No. 387/06 was stalled on one pretext or the other, despite the prosecution being in relation to a complaint lodged in 2001, she filed Crl.P.No. 3025/05 for expeditious trial and recording of her evidence, during her life time. The petition was allowed by this court on 10.08.2005 and the trial court was directed to commence the trial by recording the evidence of either side and dispose of the same within a period of 3 months in view of the guidelines issued by this court in a circular dated 26.07.2005. Thereafter the 1st respondent State issued the impugned G.O. Rt. No. 1646 Home (Legal-II) Department dated 18.09.2006, which reads as under: " Government after careful examination of the representation of Smt. D.Rama Bharathi (the 6th respondent and A1), dated 30.12.2004 and the letter of the Director General of Police, Andhra Pradesh, Hyderabad in the reference 3rd and 5th read above, have decided to withdraw the prosecution against Smt. D.Rama Bharathi, Smt. Thilothamma and Sri D.S.Murthy in Crime No. 263/2001 under sections 199, 468, 471, 406, 420 read with section 34 of the IPC 1860 of Gopalapuram Police Station of Hyderabad City in CC No. 773/2003 on the file of X MM, Secunderabad. 2. The Collector and District Magistrate of Hyderabad is requested to direct the Public Prosecutor concerned to file petitions under section 321 of Code of Criminal Procedure, 1973 (Central Act 2 of 1974), for withdrawal of prosecution against Smt. D. Rama Bharathi, Smt. Thilothamma and Sri D.S.Murthy in Crime No. 263/2001 under sections 199, 468, 471, 406, 420 read with section 34 of the IPC 1860 of Copalapuram Police Station of Hyderabad City in CC No. 773/2003 on the file of X MM, Secunderabad under intimation to Government. "As apparent from the above order, the 1st respondent (after having decided to withdraw the prosecution) requested the 4th respondent to direct the 5th respondent to file petitions u/Secs. 321 Cr.P.C. 1973 to withdraw the prosecution against the respondents 6 to 8 herein. "As apparent from the above order, the 1st respondent (after having decided to withdraw the prosecution) requested the 4th respondent to direct the 5th respondent to file petitions u/Secs. 321 Cr.P.C. 1973 to withdraw the prosecution against the respondents 6 to 8 herein. The petitioner assails this order on several grounds: The Challenge : A) That since the 7th respondent was a senior IAS Officer of the State Cadre, the 1st respondent with an oblique motive, to help him evade prosecution and for extraneous reasons issued the impugned order; B) That respondents 6 to 8 had already made hectic efforts for withdrawal of the prosecution, but the senior Assistant Public Prosecutor of the Court of the X Metropolitan Magistrate, Secunderabad had declined to withdraw the prosecution. However, when the senior Public Prosecutor of the Court of II Additional Metropolitan Magistrate, Nampally was on leave and one Mr. M. Kishore Kumar was incharge, the respondents 6 to 8 influenced this incharge officer and contrived a proposal for withdrawal of the prosecution on the ground that the case is civil in nature; C) The impugned order (of the 1st respondent requesting the 4th respondent to direct the 5th respondent to file a petition u/Sec. 321 Cr.P.C.) amounts to usurping the statutory jurisdiction of the 5th respondent particularly since the impugned order states that the 1st respondent has decided to withdraw the prosecution, a decision which does not inhere in the 1st respondent; D) The language of the impugned order is peremptory and is calculated to overawe and coerce the 5th respondent into withdrawing the prosecution, a decision which the 5th respondent is required to independently and rationally arrive at; E) As the prosecution is pursuant to a private complaint lodged by the petitioner, principles of natural justice and fundamental principles of fair play warrant that the 1st respondent should not have passed the impugned order without notice or information to the petitioner; and F) No public interest is served and there are no reasons discernable in the impugned order of the 1st respondent. The order of the 1st respondent constitutes abuse of Executive power. G) The Senior Assistant Public Prosecutor of the Court of the X Metropolitan Magistrate, Secunderabad had declined to withdraw the prosecution. The order of the 1st respondent constitutes abuse of Executive power. G) The Senior Assistant Public Prosecutor of the Court of the X Metropolitan Magistrate, Secunderabad had declined to withdraw the prosecution. Hence it is not open to the State and in the absence of any fresh material or altered circumstances, to issue the impugned order on the basis of an artificially procured opinion. The writ petition was filed on 26.9.2006. When the writ petition was taken up for hearing on 9.7.2008 (nearly 2 years later), there was no counter affidavit by the 1st respondent-State in the matter. It is the order of the State Government in G.O.Rt. No. 1646 Home Department dated 18.09.2006 which is in challenge in this writ petition, inter alia on the ground that it constitutes arbitrary exercise of State power for extraneous reasons apart from a challenge that the peremptory language of the G.O. is calculated coerce a public functionary, the Public Prosecutor, who is required to perform his statutory and discretionary function on an independent exercise of discretion without being dictated to. In the circumstances, this court by the order dated 9.7.2008 directed the 1st respondent to be present in the court and to file a counter affidavit. A counter affidavit was filed by the 1st respondent on 27.2.2008, by the in charge Principal Secretary to the Government, Home Department. The defense :- A) On the basis of the record, it is admitted that the petitioner lodged a private complaint before the Magistrate Court, Secunderabad which was referred for investigation u/Sec.156(3) Cr.P.C. Cr.No. 263/01 u/Secs. 199, 468, 471,405 and 420 r/w 34 IPC was registered by the Gopalapuram Police Station and investigation taken up. On collection of oral and documentary evidence during the course of investigation, the police concluded that offences were committed by the accused. Consequently a chargesheet was filed vide CC No. 773/03, dated 26.05.2003. As the 1st accused was a minor a separate chargesheet was filed against her before the V Addl. Chief Metropolitan Magistrate, Hyderabad (Juvenile) registered as CC No. 294/06. B) On 30.12.2004 the 1st accused (R-6) represented to the Government requesting withdrawal of prosecution in CC No. 263/01 of Gopalapuram PS. This representation was forwarded to the Commissioner of Police, Hyderabad for enquiry and report together with the opinion of the Public Prosecutor for a decision/recommendation for withdrawal. C) A communication was received from the Special Public Prosecutor-cum-Addl. B) On 30.12.2004 the 1st accused (R-6) represented to the Government requesting withdrawal of prosecution in CC No. 263/01 of Gopalapuram PS. This representation was forwarded to the Commissioner of Police, Hyderabad for enquiry and report together with the opinion of the Public Prosecutor for a decision/recommendation for withdrawal. C) A communication was received from the Special Public Prosecutor-cum-Addl. Public Prosecutor, Court of VI Addl. Metropolitan Sessions Judge, Secunderabad (Mr. K.Kishore Kumar) who was holding charge of the O/o the Public Prosecutor. The incumbent Public Prosecutor Mr. M.Krishna Mohan was on leave at that time. on 11.02.2005 the incharge Addl. Public Prosecutor (Mr. M.Kishore Kumar) furnished an opinion that there are no merits in the case and it is a fit case to withdraw the prosecution against all the accused. This opinion was forwarded to the Commissioner of Police, Hyderabad on 24.2.2005. The Commissioner of Police by a memo dated 17.5.2005 called upon the Deputy Commissioner of Police North Zone to obtain the opinion of the concerned Public Prosecutor. D) The Public Prosecutor concerned Mr. M.Krishna Mohan, the Senior Asst. Public Prosecutor for the Court of X Addl. Chief Metropolitan Magistrate, Secunderabad forwarded an opinion on 15.7.2005 that it is not a fit case for withdrawal of prosecution and it is appropriate to pursue prosecution. This opinion was forwarded to the Commissioner of Police on 17.01.2006. E) The Commissioner of Police thereupon addressed a letter dated 12.08.2005 to the Director General of Police stating that there are no grounds for withdrawal of prosecution. The D.G.P. in turn addressed a letter dated 5.5.2006 to the State Government enclosing copies of the legal opinion, leaving it to the State Government to take a decision. F) Thereupon the State Government issued the impugned G.O.Rt.No. 1646 "requesting the Public Prosecutor to consider filing a requisition/petition for withdrawal of prosecution after perusing the entire records and opinion furnished by the Public Prosecutor". G) The impugned G.O. was on the basis of the earlier opinion by the incharge Public Prosecutor Mr. M.Kishore Kumar who opined that it is a fit case to withdraw the prosecution against all the accused. H) Thereupon the Collector. Hyderabad District (R-4) addressed a letter dated 26.9.2006 to the Asst. Public Prosecutor, Court of II Addl. G) The impugned G.O. was on the basis of the earlier opinion by the incharge Public Prosecutor Mr. M.Kishore Kumar who opined that it is a fit case to withdraw the prosecution against all the accused. H) Thereupon the Collector. Hyderabad District (R-4) addressed a letter dated 26.9.2006 to the Asst. Public Prosecutor, Court of II Addl. Chief Metropolitan Magistrate, Nampally, to file a petition u/Sec. 321 Cr.P.C., in the light of the G.O. I) The Public Prosecutor had not filed any petition for withdrawal of prosecution before the concerned court and the case is posted to 28.07.2008 for recording the statement of the complainant. J) It is admitted that in the impugned order (though stated to be inadvertently) the District Collector was requested to direct the Public Prosecutor to file a petition for withdrawal of prosecution. However it is not the intention of the Government to direct the Public Prosecutor. It is admitted that the Public Prosecutor ought to have been requested to consider the proposal for withdrawal of prosecution on merits. In the reply affidavit, the petitioner reiterates the criminality of the accused and that the State Government issued the impugned order directing the Public Prosecutor to withdraw the prosecution, in bad faith and arbitrarily. During the pendency of the writ petition, the petitioner by way of WPMP No. 27015/07 sought to bring on record certain documents as additional material on record for the perusal and consideration of this court; and by a subsequent application in WPMP No. 919/09 the petitioner brought on record another order of the 1st respondent in G.O. Rt. No. 2300, Home Department, dated 3.12.2008 by way of amendment to the impugned (G.O.Rt.No. 1646). By the order dated 3.12.2008 Paragraph-2 of the G.O.Rt.No.1646 was amended and the peremptory direction to be addressed by the Public Prosecutor by the District Collector is substituted to read that the Collector should "address the Public Prosecutor concerned for filing a petition u/Sec.321 Cr.P.C." The respondents and their counsel have noted these applications of the petitioner. These applications are ordered. This court on 30.09.2008 by the order passed in WPMP No.27015/07 directed production of the note and current file relating to issuance of the impugned G.O. The record has been produced for the perusal of this court. These applications are ordered. This court on 30.09.2008 by the order passed in WPMP No.27015/07 directed production of the note and current file relating to issuance of the impugned G.O. The record has been produced for the perusal of this court. I have carefully gone through the entire Government file relating to the issuance of the impugned G.O. Analysis of the Current File:- i) As stated in the counter affidavit of the 1st respondent, after completion of the investigation into Cr.No. 263/01, the Gopalapulam police laid a chargesheet vide CC No. 773/03, on 26.5.2003. As against the 1st accused (R-6) who is accused of certain offences during her minority, a separate chargesheet was filed against her before the Court of V Addl. Chief Metropolitan Magistrate, Hyderabad (Juvenile) as CC No. 294/06. ii) 11/2 years after the chargesheet was filed, the 6th respondent submitted a representation dated 30.12.2004 to the Hon. Minister for Home, seeking withdrawal of prosecution in Cr.No. 263/01 and in CC No. 773/03 on the file of the X Metropolitan Magistrate, Secunderabad, in so far as the respondents 6 to 8 (A1 to A3). In this representation the 6th respondent stated that the chargesheet suffers from procedural defects; that since the petitioner had already filed OS No. 154/04 before the III Addl, Chief Judge, CCC, Hyderabad (a suit for cancellation of sale deeds u/Sec. 31 of the Specific Relief Act and for possession and mesne profits) the dispute between the parties is civil in nature and no criminality is involved; that the accused and her parents (A1 to A3) committed no offence; and the petitioner lodged the complaint and is unnecessarily prosecuting them out of vendetta. iii) On this representation the Hon. Minister for Home made an endorsement dated 5.1.2005 to the 1st respondent: re-examine the request and circulate for taking necessary action, early. On 20.01.2005 the 1st respondent by a memo, forwarded the 6th respondent's representation and its enclosures to the DGP for specific remarks along with the report of the Commissioner of Police, Hyderabad and for the opinion of the Public Prosecutor concerned, directing early response. A reminder was issued to the DGP on 17.8.2005 directing urgent response. On 17.8.2005 the 1st respondent issued a memo, in reiteration of the earlier memo dated 20.01.2005, calling upon the DGP to send his report as requested in the earlier memo dated 20.01.2005. A reminder was issued to the DGP on 17.8.2005 directing urgent response. On 17.8.2005 the 1st respondent issued a memo, in reiteration of the earlier memo dated 20.01.2005, calling upon the DGP to send his report as requested in the earlier memo dated 20.01.2005. There is no reference to any legal opinion already received by the 1st respondent, in the memo dated 17.08.2005. iv) On 18.8.2005 the respondents 6 to 8 submitted another representation to the Hon. Minister for Home. In this representation respondents 6 to 8 contended that neither the police officer nor the Public Prosecutor is entitled to form an opinion as to whether the petitioner's (de facto complainant) signature was obtained on blank stamp papers and that these documents be referred to the Government Examiner of Questioned Documents, Ramanthapur, Hyderabad (GEQD). The respondents 6 to 8 also stated that the Public Prosecutor is understood to have given an opinion in the matter (obviously referring to the opinion of Mr. H. Krishna Mohan dated 15.7.2005). Clearly the respondents 6 to 8 had information access as to this legal opinion of the Public Prosecutor, even before the legal opinion was forwarded by the DGP to the 1st respondent. v) On 22.08.2005 the DGP addressed the 1st respondent stating that the Commissioner of Police had informed that the case against the respondents 6 to 8 is pending trial and the Senior Asst. Public Prosecutor of the Court of X Addl. Chief Metropolitan Magistrate, Secunderabad had opined that there are no grounds for withdrawal of prosecution; that during the course of investigation the evidence collected by the police has established the offences; and that the Dy. Commissioner of Police North Zone and the Commissioner of Police, Hyderabad were also of the opinion that there are no grounds for withdrawal of prosecution. The DGP also opined in this letter dated 22.8.2005 that he agrees with the above opinion. The report of the Commissioner of Police in a letter dated 12.08.2005 with the recommendations of the Dy. Commissioner of Police, North Zone by a letter dated 16.7.2005, and opinion dated 15.8.2005 of the Senior Asst. Public Prosecutor, X Addl. Chief Metropolitan Magistrate, Secunderabad, were enclosed to this letter of the DGP. The report of the Commissioner of Police in a letter dated 12.08.2005 with the recommendations of the Dy. Commissioner of Police, North Zone by a letter dated 16.7.2005, and opinion dated 15.8.2005 of the Senior Asst. Public Prosecutor, X Addl. Chief Metropolitan Magistrate, Secunderabad, were enclosed to this letter of the DGP. vi) Earlier on 26.5.2005 the Commissioner of Police had addressed the DGP intimating that the accused 1 to 3 in CC No.263/01 had approached the High Court seeking stay of all further proceedings in Crl.MP No. 2092/03 and an interim stay was granted, later they withdrew the petition; that the opinion of the Spl. Public Prosecutor of the X Addl. Metropolitan Sessions Judge, Secunderabad was also forwarded by the Commissioner of Police's letter dated 4.4.2005; that the APP declined to offer an opinion in the case as A1 to A3 are known to her and her husband had worked under A2 when he worked in the Transport Department. This APP had also requested the Director of Prosecution that the trial of the case be entrusted to some other prosecutor. vii) The report of the Inspector of Police, Gopalapuram PS dated 15.7.2005 addressed to the Dy. Commissioner of Police, North Zone (enclosed to the DGP's letter dated 22.08.2005 to the 1st respondent) is also clear and categorical and records that the police collected 53 vital documents and had conducted extensive investigation which leads to the opinion that the accused are responsible for the offences. The opinion dated 15.7.2005 of Mr. H. Krishna Mohan, the Senior Asst. Public Prosecutor is also clear that the accused are responsible for the offences charged and it is not a fit case for withdrawal of prosecution. viii) Curiously (though the mater was pending trial in the Judicial branch), the 1st respondent issued a memo dated 1.9.2005 to the DGP calling for a report from the GEQD regarding the genuineness of certain documents. This memo was issued pursuant to the representation dated 18.8.2005 by the respondents 6 to 8. The 1st respondent issued a further direction to the DGP on 19.10.2005. ix) The Government record contains a "confidential letter" dated 20.10.2005 addressed by the 6th respondent to the Director of Prosecution O/o DGP, complaining about Mr. Krishna Mohan, Senior Asst. Public Prosecutor, dealing with the case. The letter states that the Public Prosecutor's behaviour is increasingly became incorrigible and cannot be tolerated any longer. ix) The Government record contains a "confidential letter" dated 20.10.2005 addressed by the 6th respondent to the Director of Prosecution O/o DGP, complaining about Mr. Krishna Mohan, Senior Asst. Public Prosecutor, dealing with the case. The letter states that the Public Prosecutor's behaviour is increasingly became incorrigible and cannot be tolerated any longer. By this letter the 6th respondent requested the Director of Prosecutions to instruct Mr. Krishna Mohan to behave normally and cooperate with the court and not create hurdles in the process of "unrevealing truth" and render justice and enable the police to take the affidavit filed by Dr. Bharathi to GEQD without further delay. Clearly this letter is calculated to coerce the Public Prosecutor through the executive hierarchy. x) The respondents 6 to 8 submitted yet another representation dated 21.10.2005 to the Hon. Minister for Home soliciting Government orders regarding getting the document examined by the GEQD. On this representation the Hon. Minister made an endorsement dated 25.10.2005 examine and circulate immediately. xi) On 30.11.2005 the 1st respondent directed the DGP to forward the opinion of the Public Prosecutor. The DGP thereupon addressed a communication dated 28.12.2005 to the 1st respondent stating that in view of the provisions of Sec.321 Cr.P.C. the Public Prosecutor who may exercise the power of withdrawal of prosecution is the officer who is incharge of the case, as held in AIR 1967 SC 1214 and no other Public Prosecutor can exercise the powers u/Sec. 321 Cr.P.C. The DGP also conveyed to the 1st respondent that the opinion of Mr. H. Krishna Mohan, Senior Asst. Public Prosecutor incharge of the case has to be treated as the opinion of the Public Prosecutor and the DGP sees no reason to disagree with the proposal of the Commissioner of Police, or the opinion of the Senior APP who is the concerned Law Officer incharge of the case. xii) Undeterred, the 1st respondent addressed a memo dated 3.2.2006 to the DGP seeking the opinion of the Public Prosecutor and also calling for a report of the GEQD on the genuineness of the documents referred for opinion. By another memo dated 24.4.2006 the 1st respondent directed the DGP to send for the opinion and record (as directed in the earlier memo dt 3.2.2006), and to treat it as most immediate. By another memo dated 24.4.2006 the 1st respondent directed the DGP to send for the opinion and record (as directed in the earlier memo dt 3.2.2006), and to treat it as most immediate. On 24.4.2006 the respondents 6 to 8 again represented to the Hon. Minister for Home to pass orders for withdrawal of prosecution in CC No. 773/03 which is stated to have been transferred to the Court of the II Metropolitan Magistrate, Nampally. On this representation the Hon. Minister made an endorsement dated 25.4.2006 addressed to the 1st respondent (within 24 hours of the representation) examine and circulate along with the opinion of the Public Prosecutor. There was thus no 2nd opinion (other than that of Mr. H. Krishna Mohan) with the Government, even as on 25.04.2006. xiii) By a communication dated 5.5.2006 the DGP addressed the 1st respondent (in response to the Government memo dated 1.9.2005) enclosing the legal opinion of (Mr. Kishore Kumar), the Spl. Public Prosecutor for the Court of SC, ST (POA) Act-cum-Addl. Public Prosecutor for the Court of VI Addl. Metropolitan Sessions Judge, Secunderabad and Senior Asst. Public Prosecutor incharge of the X Chief Metropolitan Magistrate, Secunderabad to enable the Government to take a decision. In the enclosures to this letter of the DGP is a letter dated 30.1.2006 from the Commissioner of Police to the DGP which intimates that a requisition was filed in the Court of the X Addl. Chief Metropolitan Magistrate, Secunderabad seeking forwarding of documents to the GEQD and this petition was dismissed on 2.12.2005 and therefore the request cannot be entertained. Also enclosed is a letter dated 17.1.2006 of the Inspector of Police, Gopalapuram PS addressed to the Commissioner of Police to the same effect, regarding dismissal of application for sending documents to GEQD. A copy of the order of the court was also enclosed. xiv) Though in the letter of the DGP to the 1st respondent bearing reference RT No. 242/F5/05 dated 22.8.2005 (at page 223 of the running file) there is no reference to any earlier opinion from any other Public Prosecutor and the only enclosed opinion is the one dated 15.7.2005 of the Senior Asst. Public Prosecutor Mr. xiv) Though in the letter of the DGP to the 1st respondent bearing reference RT No. 242/F5/05 dated 22.8.2005 (at page 223 of the running file) there is no reference to any earlier opinion from any other Public Prosecutor and the only enclosed opinion is the one dated 15.7.2005 of the Senior Asst. Public Prosecutor Mr. H. Krishna Mohan (stating that it is not a fit case for withdrawal of prosecution), curiously at page 303 of the running file is found a opinion (in the form of a letter) purportedly dated 11.2.2005 of one Mr. M.Kishore Kumar, Spl. Public Prosecutor for the Court under SC,ST (POA) Act-cum- Addl. Public Prosecutor of the court of VI Addl. Metropolitan Sessions Judge, Secunderabad, addressed to the Inspector of police, Gopalapuram PS. This letter of Mr. Kishore Kumar does not even record in what context and circumstances he had tendered the opinion. There is no reference to any requisition for opinion by the Gopalapuram PS, by the Dy.Commissioner of Police, the Commissioner of Police, by the DGP or the Government. As per the typed date on this letter (11.2.2005) it predates the opinion of Mr. M.Krishna Mohan, which is dated 15.7.2005 and which had been already forwarded to the State Government through the letter of the DGP dated 22.8.2005 addressed to the 1st respondent. The DGP's letter dated 22.8.2005 to the 1st respondent nor the enclosures thereto [which contain the letters of the Commissioner of Police dated 26.5.2005 addressed to the DGP; the opinion of the APP X Addl.Chief Metropolitan Magistrate, Secunderabad dated 21.5.2005 (declining to offer any opinion in view of her familiarity with the family of the accused); the leter of the Dy. Commissioner of Police, North Zone dated 16.7.2005 addressed to the Commissioner of Police enclosing a detailed report of the Gopalaopuram PS; and the letter dated 15.7.2005 addressed by the Inspector of Police, Gopalapuram PS, to the Dy.Commissioner of Police, North Zone], make any reference to an earlier opinion of Mr. M. Kishore Kumar. xv) The letter of Mr. Kishore Kumar dated 11.2.2005 reads as under: " Office of the Spl. Public Prosecutor- cum-Additional Public Prosecutor VI Addl. Metropolitan Sessions Judge Court, Secunderabad To The Inspector of Police, P.S. Gopalapuram, Secunderabad. Sir, Sub:- Crime No. 263/2001 of P.S Gopalapuram Ref:- Legal Opinion Furnishing. M. Kishore Kumar. xv) The letter of Mr. Kishore Kumar dated 11.2.2005 reads as under: " Office of the Spl. Public Prosecutor- cum-Additional Public Prosecutor VI Addl. Metropolitan Sessions Judge Court, Secunderabad To The Inspector of Police, P.S. Gopalapuram, Secunderabad. Sir, Sub:- Crime No. 263/2001 of P.S Gopalapuram Ref:- Legal Opinion Furnishing. With reference to above cited subject and reference, after considering the entire record placed before me, it is a fit case to withdraw prosecution against all the accused in the above cited crime for the following reasons :- 1. The case of the defacto complainant is total contradictory to the documents executed by her (which were placed before me) and showing that this case is preferred only to yield her demands. 2. That as per the case of the defacto complainant accused No.2 D.S.Murthy who is her step son convinced her to sign on some blank papers including Rs.5/- non-judicial stamp paper but there is no evidence before me to show that she has signed on blank papers and moreover as a well educated person she cannot plead ignorance of signing a document without going through that document and without her consent and also in document letter written by her dt 19-5-1999 she admitted that she has temporarily transferred the said plot to her grand daughter Ms. Rama Bharathi therefore in my opinion the transfer of plot was did not effected without the knowledge of the defacto complainant. 3. That the transfer of plot was affected on 18-2-1984 and since then the defacto-complainant was living in Hyderabad along with accused No.1 to 3 under the same roof and there is every possibility to came to know about the transfer of the plot or whether whose name the plot was standing, but since then i.e., 18-2-1984 till 8-10-2001 she did not lodged any complaint before police regarding this cheating. 4. That the defacto complainant was well aware about the construction of the house and mutation and other developments, but being a well educated person and also she was residing in same house along with accused, it is unbelievable that she was not aware of the transferring of the said plot years together. 5. 4. That the defacto complainant was well aware about the construction of the house and mutation and other developments, but being a well educated person and also she was residing in same house along with accused, it is unbelievable that she was not aware of the transferring of the said plot years together. 5. That regarding the other allegation that the age of the accuse No.1 was showed as major by the accused No.2, that when the accused No.2 obtained signatures of the defacto-complainant on blank papers, what necessity to the accused No.2 to transfer the said plot in the name of a minor he may transfer in his name or any other person who is major and there is no satisfactory explanation from the defacto-complainant regarding this aspect to show the fraudulent intention of the accused No.2, moreover there is no prohibition to a minor to become a society member. 6. That, as per the record there is a civil case is pending before III Addl. Senior Civil Judge, Secunderabad and it is a civil dispute. 7. That after perusing the entire record and the documents i.e., affidavit Dt 13-1-1984, letters written by Dr. Bharathi Dt 11-1-1984, dt 19-5-1999 and the letter written by the society to Bharathi Dt 6-9-1983, I came to a conclusion that in the transfer of the said plot I did not find any criminal intention of the accused moreover to attract U/S 199, 468, 471, 406 & 420 IPC R/W 34 IPC. Therefore after perusing the entire evidence and documents collected by the police and the representation made by the accused to Government of AP, I opine that there are no merits in this case and it is a fit case to withdraw the prosecution against all the accused. Date 11-2-2005 M.Kishore Kumar For State " What is revealing and instructive is that the opinion of Mr. Kishore Kumar dated 11.2.2005 is enclosed to a letter dated 5.5.2006 of the DGP addressed to the 1st respondent referring to this opinion of Mr. Kishore Kumar; and unlike earlier there is no opinion of the Commissioner of Police or the Dy. Commissioner of Police, North Zone. The DGP's letter dated 5.5.2006 is also without reference to his earlier opinion (in the DGP's letter dated 28.12.2005) that only Mr. H. Krishna Mohan, APP, is competent to tender an opinion on withdrawal. Kishore Kumar; and unlike earlier there is no opinion of the Commissioner of Police or the Dy. Commissioner of Police, North Zone. The DGP's letter dated 5.5.2006 is also without reference to his earlier opinion (in the DGP's letter dated 28.12.2005) that only Mr. H. Krishna Mohan, APP, is competent to tender an opinion on withdrawal. However the DGP this time round refrained (unlike earlier) to record his opinion on the appropriateness of withdrawal of prosecution. xvi) At page 343 of the running file is a memo dated 11.9.2006 of the 1st respondent to the DGP seeking information as to which District Collector (under whose administrative jurisdiction the Public Prosecutor concerned is working) the Government should issue a direction regarding withdrawal of prosecution against A1 to A3. Pinned to this memo is a draft memo No. 555/Legal.II/A1/2005 dated -07-2006 containing a decision of the Government to reject the request (of R 6 to 8) for withdrawal of prosecution in Cr.No.263/01 in CC No.773/03 on the file of the X Metropolitan Magistrate, Secunderabad. xvii) On 11.9.2006 the DGP informed the 1st respondent that the concerned Collector is the District Collector, Hyderabad, for issue of a direction, with an intimation to the Director of Prosecutions, since the Public Prosecutor is within the (administrative) jurisdiction of the Director of Prosecutions. xviii) Thereafter the impugned G.O. is drawn up and issued. The G.O. refers to the representation of the 6th respondent dated 30.12.2004 and the letters of the DGP dated 22.8.2005, 28.12.2005, 5.5.2006 and 11.9.2006. It is required to be noticed that the DGP's letter dated 22.8.2005 records a clear opinion that no case is made out for withdrawal of prosecution, an opinion based on a similar opinion by the Commissioner of Police; the opinion of the Public Prosecutor Mr. Krishna Mohan dated 15.7.2005 and the report dated 15.7.2005 of the Inspector of Police, Gopalapuram PS. The 2nd letter of the DGP dated 28.12.2005 addressed to the 1st respondent is in response to a Government memo dated 30.11.2005 seeking the opinion of the Public Prosecutor concerned. In this letter the DGP has clearly recorded that the opinion of Mr. H.Krishna Mohan must be treated as the opinion of the Public Prosecutor, in terms of Sec.321 Cr.P.C. and the judgment of the Supreme Court in AIR 1967 SC 1214 . The letter of the DGP dated 5.5.2006 is a letter enclosing the opinion of Mr. In this letter the DGP has clearly recorded that the opinion of Mr. H.Krishna Mohan must be treated as the opinion of the Public Prosecutor, in terms of Sec.321 Cr.P.C. and the judgment of the Supreme Court in AIR 1967 SC 1214 . The letter of the DGP dated 5.5.2006 is a letter enclosing the opinion of Mr. M.Kishore Kumar, the Public Prosecutor (of a different court), for the Spl. Court under SC & ST (POA) Act, purportedly dated 11.2.2005. The letter dated 11.9.2006 is the one addressed by the DGP to the 1st respondent intimating that the District Collector, Hyderabad is the concerned District Collector. xix) The 4th respondent-District Collector , Hyderabad by letter dated 23.9.2006 addressed the Addl. Public Prosecutor II Addl. Chief Metropolitan Magistrate, Nampally to file a petition u/Sec.321 Cr.P.C. for withdrawal of prosecution against A1 to A3 (R6 to R8), in CC No. 773/03 on the file of the X Metropolitan Magistrate, Secunderabad with intimation to the 4th respondent. A copy of this letter was also submitted to the II Addl. Chief Metropolitan Magistrate, Nampally. Analysis of the Note File :- The note file in the Government record is instructive, revealing and reinforces the sequence of events as reflected in the current file. A) The note file begins with the subject which is the withdrawal of prosecution against A1 to A3 in CC No. 263/01 of Gopalapuram PS. Four references are recorded including the letter of the DGP dated 22.8.2005. Paragraphs 2 to 24 which deal with the comments commencing with the representation of A1 dated 30.12.2004 up to the letter of the DGP dated 22.8.2005 (enclosing the opinion of the concerned Public Prosecutor Mr. Krishna Mohan) do not even make a passing reference to what is now pleaded to be an earlier opinion of the other Public Prosecutor Mr. Kishore Kumar (of the Special Court under SC, ST (POA) Act), dated 11.2.2005. Para-25 contains this endorsement by the Principal Secretary on 27.1.2006 point out we had asked for two opinions and only that of APP has been received. Clearly therefore the opinion of Mr. M. Kishore Kumar dt 11.2.2005 was not on the record of the Government as on 27.1.2006 and the only opinion available with the Government on that date was of Mr. H. Krishna Mohan dated 15.07.2005, forwarded by the DGP's letter dated 22.8.2005. Clearly therefore the opinion of Mr. M. Kishore Kumar dt 11.2.2005 was not on the record of the Government as on 27.1.2006 and the only opinion available with the Government on that date was of Mr. H. Krishna Mohan dated 15.07.2005, forwarded by the DGP's letter dated 22.8.2005. At Paras-39 to 41 it is recorded that it is only through the letter of the DGP dated 5.5.2006 that the legal opinion of Mr. M. Kishore Kumar, Spl. Public Prosecutor for the Court of SC, ST (POA) Act cum-Addl. Public Prosecutor for the Court of VI Addl. Metropolitan Sessions Judge, Secunderabad had been forwarded/furnished and that Mr. M. Kishore Kumar had opined that it is a fit case to withdraw the prosecution. B) On 22.5.2006 it was decided to refer the issue to the Law Department. The Law Department recorded an ambiguous opinion, leaving it to the Home Department to take a decision on merits. The Law Department opined that a case of cheating u/Sec. 420 IPC does not appear to have been made out; that there is a civil case pending, that the Law Department agrees with the opinion of Mr. M. Kishore Kumar; that however under the provisions of Sec.321 Cr.P.C. the ultimate guiding consideration is the better interest of administration of justice; and therefore it is for the Home Department to take a decision. The Law Department does not advert to the letter of the DGP dated 28.12.2005 (in which the DGP had clearly recorded his opinion that the Public Prosecutor incharge of the case was Mr. H. Krishna Mohan only his opinion is relevant in view of the decision of the Supreme Court in AIR 1967 SC 1214 ). The Law Department proceeded on the premise that there were two competent opinions, one of Mr. M. Kishore Kumar and the other of Mr. H. Krishna Mohan. The Law Department's opinion also proceeded on an assumption that the opinion of Mr. M. Kishore Kumar was earlier in point of time and the opinion of Mr. H. Krishna Mohan subsequent. A careful scrutiny of the current and note files (which reinforce the sequence) however disclose that the opinion of Mr. M. Kishore Kumar though dated 11.2.2005 is much latter to the opinion of Mr. H. Krishna Mohan dated 15.7.2005 which had been enclosed to the letter of the DGP dated 22.8.2005, while the opinion of Mr. H. Krishna Mohan subsequent. A careful scrutiny of the current and note files (which reinforce the sequence) however disclose that the opinion of Mr. M. Kishore Kumar though dated 11.2.2005 is much latter to the opinion of Mr. H. Krishna Mohan dated 15.7.2005 which had been enclosed to the letter of the DGP dated 22.8.2005, while the opinion of Mr. M. Kishore Kumar surfaced much latter, as an enclosure to the DGP's letter dated 5.5.2006. C) At Para-78 orders were sought whether the file be circulated to the Hon. Chief Minister and to the Hon. Minister for Home. At Para-79 the Addl. Secretary by the noting dated 22.6.2006 recommended rejection of the request for withdrawal of the prosecution. At Para-80 the Hon. Minister for Home recommended circulation of the file to the Hon. Chief Minister. At Para-81 the Hon. Chief Minister approved the recommendation of the Addl. Secretary at para- 79 i.e., for rejection of the request for withdrawal of prosecution. At Para- 84, pursuant to the order of the Principal Secretary dated 18.7.2006 to take action consequent on the orders of the Hon. Chief Minister, a draft order for rejection was put up for approval. At Para-87 the file was directed to be recirculated to the Hon. Minister for Home as the Personal Secretary to the Hon. Minister intimated that the Hon. Minister desired to peruse the file. On 2.8.2006 the Hon. Minister for Home recommended reconsideration of the issue by the Hon. Chief Minister in view of the opinion of Mr. M. Kishore Kumar, the Senior Public Prosecutor. D) While there is the signature of Hon. Chief Minister dated 18.8.2006, it is not clear whether the recommendation of the Hon. Home Minister dated 2.8.2006 was approved for reconsideration of the earlier order. E) Eventually on a view that the Hon. Chief Minister had approved withdrawal of prosecution, the impugned G.O. is issued. The opinion of the concerned Public Prosecutor incharge of the case Mr. H. Krishna Mohan dated 15.7.2005, to the extent relevant and material reads as follows: I have gone through the record and documents in this case and perused the representation by the A2 in this case to the Hon'ble Home Minister. The opinion of the concerned Public Prosecutor incharge of the case Mr. H. Krishna Mohan dated 15.7.2005, to the extent relevant and material reads as follows: I have gone through the record and documents in this case and perused the representation by the A2 in this case to the Hon'ble Home Minister. It is seen from the record that the accused filed discharge petition before the Xth M.M. Court with similar contents and court found that, there is 'prima facie' case against the accused and there are specific allegations against the accused and the matter to be decided after full trial and not at this stage. The accused also appeal the above order to the Vith M.S.J. Court Secunderabad on 12-5-2004 the appellate court also found the same version and dismissed the petition. The police collected documentary evidence basing on the statement of LW1, that A1 took the signatures from the LW1 on certain blank papers representing that the Jubilee Hills property belongs to complainant be got transferred in her name thereafter A1 got executed the Sale Deed bearing No. 757/1986 in the name of his daughter (A2) in that regard complaint also filed a civil suit in the III Addl.Chief Judge, City Civil Court, Hyderabad A3 also attested the Sale Deed bearing document No. 757/1986 executed in favour of A2. The first accused with collusion of the co.op society officials fabricated the documents and transfer of allotment of Plot No. 1181 in favour of the Second accused. In that process the 1st accused mentioned date of birth of the second accused in the fabricated document and submitted to the society showing her date of birth as major. The police collected the above document proved that she was minor at that time. the present market value of the property is about Rs.75,00,000/- as per LW1 statement as such D.S.Murthy and his wife THILOTHAMA and his daughter D.Rama Bharathi, society's Secretary T.L.Prasad, P.Subba Rao, I.B. Rao are responsible the above case. The allegations and document collected by the police and the orders of Xth M.M.Court and VI M.S.J. Court clearly shows that the accused in this case are responsible as such it is a fit case for prosecution. The allegations and document collected by the police and the orders of Xth M.M.Court and VI M.S.J. Court clearly shows that the accused in this case are responsible as such it is a fit case for prosecution. Therefore I am of the opinion that it is not a fit case for withdrawal at this stage and the S.H.O. Gopalapuram may send the case file to the Chief Office with my opinion that the case is not a fit case for 'withdrawal'. Hence this opinion. H. Krishna Mohan Sr. Asst. Public Prosecutor, Secunderabad Analysis of precedents:- A Constitution Bench of the Supreme Court in State of Punjab vs Surjit Singh and Anr. AIR 1967 SC 1214 clearly held that the Public Prosecutor who is competent to file an application for withdrawal of prosecution is the Public Prosecutor who is already incharge of the particular case in which the application is filed. The Apex court ruled that any person who is a Public Prosecutor but not the Public Prosecutor incharge of the particular case, cannot withdraw the prosecution. In unambiguous terms the Apex Court ruled that it is only the Public Prosecutor who is incharge of a particular case and is actually conducting the prosecution that can file an application seeking permission for withdrawal from the prosecution; if a Public Prosecutor is not incharge of a particular case and is not conducting the prosecution he is not entitled to ask withdrawal of prosecution, ruled the Supreme Court. At the relevant time, till the case was transferred to the Court of the II Addl. Metropolitan Magistrate, Nampally in 2006 (by the order dated 3.4.2006 of the Metropolitan Sessions Judge, in Tr.MP No. 59/06), the mater was before the X Metropolitan Magistrate, Secunderabad. It was Mr. H. Krishna Mohan who was the Assistant Public Prosecutor of this court as also the Prosecutor actually conducting the case. Mr. M. Kishore Kumar was the Public Prosecutor of the Spl. Court under the SC, ST (POA) Act and was not the officer prosecuting CC No. 773/03 before the X Metropolitan Magistrate, Secunderabad. Sec. 321 Cr.P.C. enables the Public Prosecutor or the Asst. Public Prosecutor incharge of a case, with the consent of the court, at any time before the judgment is pronounced, to withdraw from the prosecution. Court under the SC, ST (POA) Act and was not the officer prosecuting CC No. 773/03 before the X Metropolitan Magistrate, Secunderabad. Sec. 321 Cr.P.C. enables the Public Prosecutor or the Asst. Public Prosecutor incharge of a case, with the consent of the court, at any time before the judgment is pronounced, to withdraw from the prosecution. In the circumstances and in view of the judgment of the Supreme Court in Surjit Singh (1 supra), the opinion of Mr. H. Krishna Mohan is the only relevant and competent opinion and the opinion of Mr. M. Kishore Kumar is wholly incompetent and ought not to have been considered. The power/decision to withdraw from a prosecution does not lie in the Executive branch of the State. When a crime is committed in this country, assessment of guilt and the award of punishment or in the alternative discharge or acquittal of the accused are part of the criminal justice process administered by the Judicial branch, by the courts of the land. It is no part of the function of the Executive to administer criminal justice in our system. Justice Krishna Iyer in Subhash Chander vs The State and Ors AIR 1980 SC 423 pithily observed: The function of administering justice, under our constitutional order, belongs to those entrusted with judicial power. One of the few exceptions to the uninterrupted flow of the court's process in S. 321, Cr. P. C. But even here it is the Public Prosecutor, and not any executive authority, who is entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of the court. We repeat for emphasis. To interdict, intercept or jettison an enquiry or trial in a court, save in the manner and to the extent provided for in the Code itself, is lawlessness. The even course of criminal justice cannot be thwarted by the Executive, however, high the accused, however sure Government feels a case is false, however unpalatable the continuance of the prosecution to the powers that-be who wish to scuttle court justice because of hubris, affection or other noble or ignoble consideration. Justicing, under our constitutional order, belongs to the judges. Among the very few exceptions to this uninterrupted flow of the court process is S. 494, Cr. Justicing, under our constitutional order, belongs to the judges. Among the very few exceptions to this uninterrupted flow of the court process is S. 494, Cr. P. C. Even here, the Public Prosecutor - not any executive authority-is entrusted by the Code with a limited power to withdraw from a prosecution, with the Court's consent whereupon the case comes to a close. What the law has ignited, the law alone shall extinguish. (5) Although skeletal, the conditions for such withdrawal are implicit in the provision, besides the general principles which have been evolved through precedents. Once a prosecution is launched, its relentless course cannot be halted except on sound considerations germane to public justice. All public power is a public trust, and the Public Prosecutor cannot act save in discharge of that public trust, a public trust geared to public justice. The consent of the court under S. 321 as a condition for withdrawal is imposed as a check on the exercise of that power. Consent will be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal. That is the essence of the nolle prosequi jurisprudence. This court further observed: (6) We do not truncate the amplitude of the public policy behind S. 494, Cr. P. C. but warn off tempting adulteration of this policy, taking the public prosecutor for granted. Maybe, the executive, for plural concerns and diverse reasons, may rightfully desire a criminal case to be scotched. The fact that broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long-lasting security in a locality, of order in a disorderly situation or harmony in a faction milieu, or halting a false and vexatious prosecution in a court, persuades the Executive, probono publico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrate of Minister. The concurrence of the court is necessary. The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding as is alleged in this case, may well be a relevant ground for withdrawal. For the court should not be misused to continue a case conclusively proved to be a counterfeit. The concurrence of the court is necessary. The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding as is alleged in this case, may well be a relevant ground for withdrawal. For the court should not be misused to continue a case conclusively proved to be a counterfeit. This statement of the law is not exhaustive but is enough for the present purpose and, indeed, is well-grounded on precedents. (7) The promotion of law and order is an aspect of public justice. Grounds of public policy may call for withdrawal of the prosecution. A prosecution discovered to be false and vexations cannot be allowed to proceed. The grounds cover a large canvass. But the power must be cautiously exercised, and the statutory agency to be satisfied is the Public Prosecutor in the first instance, not the District magistrate or other executive authority. Finally, the consent of the court is imperative. In an earlier decision in M.N.Sankaranarayana Nair vs P.V. Balakrishnan AIR 1972 SC 496 the Apex Court observed that though the Section (earlier S. 494 Cr.P.C. corresponding to the new S.321 Cr.P.C.) is in general terms and does not circumscribe the powers of the Public Prosecutor, the essential consideration implicit in the grant of power is that it would not be in the interest of the administration of justice, which may be either that the prosecution will not be able to produce sufficient evidence to sustain the charge or that subsequent information before the prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. The Supreme Court also pointed out that it is the duty of the court to see, in the furtherance of justice that permission is not sought on extraneous grounds or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under law, directs the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest. In State of Bihar vs Ram Naresh Pandey AIR 1957 SC 389 it was pointed out that in granting consent (for withdrawal from the prosecution) the court performs a judicial function and must exercise judicial discretion. In State of Bihar vs Ram Naresh Pandey AIR 1957 SC 389 it was pointed out that in granting consent (for withdrawal from the prosecution) the court performs a judicial function and must exercise judicial discretion. The discretion to be exercised is not only with reference to the material gathered by the judicial method, in view of the wide language of Sec.494 (old Cr.P.C.). The court should however be satisfied that the executive function of the Public Prosecutor has not been improperly exercised nor is an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. The Public Prosecutor, though an executive officer, is, in a larger since an officer of the court and is bound to assist the court with his fairly considered view and the court is entitled to have the benefit of the fair exercise of his function. In Balwant Singh vs State of Bihar AIR 1977 SC 2265 the Apex Court pointed out that the sole consideration which should guide the Public Prosecutor is the larger factor of the administration of justice and not political favour, party pressures or the like. He should not allow himself to be dictated to by his administrative superiors, to withdraw from the prosecution. In Balwant Singh the court indicated some of the circumstances i.e., where the interests of public justice being paramount may transcend and overflow the legal justice of the particular litigation. Communal feuds which may have been amicably settled should not re- erupt on account of one or two prosecutions pending; labour disputes which might have given rise to criminal cases when settled might contribute to public peace, illustrated the court. In Rajender Kumar Jain vs State through Spl. Police Establishment and Ors AIR 1980 SC 1510 the Supreme Court spelt out the contours of the exercise of discretion by the Public Prosecutor to withdraw from prosecution. The court summed up the relevant principles thus: (13) Thus, from the precedents of this Court; we gather 1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. 4. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. 4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammany Hall enterprises. 6. The Public Prosecutor is an officer of the Court and responsible to the Court. 7. The Court performs a supervisory function in granting its consent to the withdrawal. 8. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous consideration. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution. 13-A. We may add, it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of S. 321, Criminal Procedure Code. The independence of the judiciary requires that once the case has traveled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case. The independence of the judiciary requires that once the case has traveled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case. Dealing with the issue whether the executive agency of the State or the Government may request the Public Prosecutor to consider exercise of power u/Sec.321 Cr.P.C., the Court held in Rajender Kumar Jain that where matters of momentous public policy are involved, if the policy makers themselves moved in the mater in the first instance and direct the Public Prosecutor to withdraw from the prosecution, it cannot be said that the initiative came from the State and therefore the Public Prosecutor did not exercise a free mind. Though the Court observed that merely because ill-informed but well meaning bureaucrats choose to use expression like the Public Prosecutor is directed or the Public Prosecutor is instructed, the court will not on that ground alone stultify the larger issue of public policy by refusing consent on the ground that the Public Prosecutor did not act as free agent when he sought withdrawal from the prosecution. It was held that the court should make an effort to elicit the reasons for withdrawal and satisfy itself that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons. The court however cautioned that the bureaucrat should be careful not to use peremptory language when addressing the Public Prosecutor since it may give rise to an impression that he is coercing the Public Prosecutor to move in the matter. The official must remember that in addressing the Public Prosecutor he is addressing an officer of the court and there should be no unwholesome pressure on the Public Prosecutor. Any suspicion of such pressure on the Public Prosecutor may lead the court to withdraw its consent. Elsewhere in this judgment (para-25) the Apex Court cautioned: "Courts when moved for permission for withdrawal from prosecution must be vigilant and inform themselves fully before granting consent. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should apprise himself from the Government and thereafter apprise the Court the host of factors relevant to the question of withdrawal from the cases, but under no circumstances should he allow himself to become anyone's stooge. While it would be obnoxious and objectionable for a Public Prosecutor to allow himself to be ordered about, he should apprise himself from the Government and thereafter apprise the Court the host of factors relevant to the question of withdrawal from the cases, but under no circumstances should he allow himself to become anyone's stooge. " In Abdul Karim vs. State of Karnataka and Ors (2001 Cri.L.J. 148) the court following the constitution bench decision in Sheonandan Paswan vs State of Bihar ( AIR 1987 SC 877 )reiterated that when an application u/Sec.321 Cr.P.C. is made, it is the duty of the court to verify whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court should examine whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. The court must ensure that the application for withdrawal has been properly made after independent consideration by the Public Prosecutor and in furtherance of public interest. Sec.321 Cr.P.C. enjoins that the Public Prosecutor should act in good faith and on proper exercise of discretion. The court also pointed out that though the Government may have ordered, directed or asked the Public Prosecutor to withdraw from prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and in good faith to be satisfied thereon that the public interest would be served by withdrawing from the prosecution. In Abdul Karim the Supreme Court also observed that the material that the Public Prosecutor has considered must be set out briefly but concisely in the application or in an affidavit annexed to the application or, in a given case, place before the court, with its permission, in a sealed envelope. In Abdul Karim the Supreme Court also observed that the material that the Public Prosecutor has considered must be set out briefly but concisely in the application or in an affidavit annexed to the application or, in a given case, place before the court, with its permission, in a sealed envelope. On the facts before it, the Supreme Court observed that the application filed u/Sec. 321 Cr.P.C. by the Special Public Prosecutor before the designated court at Mysore merely stated that he decided to withdraw from prosecution of the charged under the TADA in order to restore the peace and normalcy in the border area and among the people living in the border area and to maintain peace among the public at general and the inhabitants of the particular village, in the larger interest of the State and in order to avoid any unpleasant situation in the border area. Dealing with such a vague application, the court held that the application failed to state why the Special Public Prosecutor apprehended a disturbance of peace and normalcy or on what material. On an analysis of the facts, the Supreme Court also found that the entire State action was calculated to mislead the designated court and strictures were passed on the State and the Special Public Prosecutor concerned. In Rahul Agarwal vs Rakesh Jain and Anr (2005) 2 SCC 377 ) after referring to earlier authorities the court reiterated that withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and ascertain whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case would only cause severe harm to the accused, the court may permit withdrawal of prosecution or if the withdrawal is likely to end the dispute and bring about harmony between the parties. The discretion however must be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution at the instance of parties or by the State for redressing their grievance. The discretion however must be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution at the instance of parties or by the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, the society demands that he should be punished. Punishing the person who perpetrates crimes is an essential requirement for the maintenance of law and order and peace in the society. Therefore withdrawal of prosecution shall be permitted only when valid reasons are made out, observed the Supreme Court. On facts the Supreme Court set aside the order of the High Court permitting withdrawal of prosecution. The court observed (at para-5): The reasons given in the impugned order are either irrelevant or incorrect. The learned Single Judge did not verify the facts and also did not make any inquiry as to why the case was pending for over seven years. It may be noticed that after the appellant filed the complaint, police took about three years to file a final report. Though the appellant had been cooperating with the completion of the prosecution, the case was being adjourned from time to time and ultimately when the prosecution evidence was about to be over at any point of time, the withdrawal of the prosecution at the instance of the Public prosecutor had been rightly rejected by the magistrate as well as the Sessions Court and the High Court should not have interfered with such an Order. In M. Balakrishna Reddy and Ors vs Prl. Secretary to Government, Home Department and Ors 1999 (2) ALT 325 while quashing the order of the Magistrate allowing the application of the Public Prosecutor for withdrawal from the prosecution, this court referred to the observations of the Supreme Court that criminal justice is not a plaything and the criminal court not a playground for politicking. Political fervour should not convert prosecution into persecution, nor political favour reward a wrong doer by withdrawal from prosecution. If political fortunes are allowed to be reflected in the process of the court very soon the credibility of the rule of law will be lost. Political fervour should not convert prosecution into persecution, nor political favour reward a wrong doer by withdrawal from prosecution. If political fortunes are allowed to be reflected in the process of the court very soon the credibility of the rule of law will be lost. A similar view is reiterated in M.Jagan Mohan Reddy vs State of Andhra Pradesh 2007 (1) ALD (Crl.) 957 (AP).This court up held the order of the trial court rejecting an application for withdrawal from prosecution. The trial court concluded that there is no indication in the application by the Public Prosecutor that he has applied his mind before filing the application. Heard Mr. Sanku, the learned counsel for the petitioner, the learned Government Pleader for Home and Mr. T. Bali Reddy, the learned Senior Counsel for the respondents 6 to 8. The summary of analysis: (i) Analysis of the current file and the note file of the Government pertaining to the impugned G.O., in particular the first letter of the DGP addressed to the 1st respondent dated 22.8.2005, the 2nd letter dated 28.12.2005 and the 3rd letter dated 5.5.2006 compels the inference that the opinion of Mr. M. Kishore Kumar, the Public Prosecutor for the Special Court under SC, ST (POA) Act purportedly dated 11.2.2005 was not received by the Government nor was available in the Government records prior to the receipt by the State Government of the legal opinion dated 15.07.2005 of Mr. H. Krishna Mohan which was forwarded to the State Government through the letter of the DGP dated 22.08.2005. The opinion of Mr. M. Kishore Kumar was forwarded to and was received by the State Government only through the letter of the DGP dated 05.05.2006; (ii) In the counter affidavit dated 22.07.2008 by the 1st respondent, it is inter alia suggested (narrated at paragraphs C to E in this judgment under the sub-heading 'The Defense'), that the opinion dated 11.02.2005 of Mr. Krishna Mohan was the first in point of time; this was forwarded to the Commissioner of Police on 24.02.2005; the Commissioner of Police by a memo dated 17.05.2005 called upon the Deputy Commissioner of Police, North Zone to obtain the opinion of the concerned Public Prosecutor; the concerned Public Prosecutor Mr. Krishna Mohan was the first in point of time; this was forwarded to the Commissioner of Police on 24.02.2005; the Commissioner of Police by a memo dated 17.05.2005 called upon the Deputy Commissioner of Police, North Zone to obtain the opinion of the concerned Public Prosecutor; the concerned Public Prosecutor Mr. Krishna Mohan forwarded an opinion, dated 15.07.2005 (that it is not a fit case for withdrawal of prosecution and it is appropriate to pursue prosecution); this was forwarded to the Commissioner on 17.01.2006; the Commissioner thereupon addressed a letter dated 12.08.2005 to the Director General of Police recording that there are no grounds for withdrawal of the prosecution; the Director General of Police in turn addressed a letter dated 05.05.2006 to the State Government enclosing the copies of the legal opinion, leaving it to the State Government to take a decision. This sequence (as set out in the counter of the 1st respondent) is not borne out by the government records either the current file or the 'note file. As already stated the analysis of the current file and note file shows that the opinion dated 15.07.2005 of Mr. Krishna Mohan was first received by the State Government as an enclosure to the DGP's letter dated 22.08.2005 addressed to the 1st respondent. The opinion of Mr. Kishore Kumar was thereafter forwarded to the State Government only through the letter dated 05.05.2006 of the DGP. (iii) Till 03.04.2006 when CC No. 773/03 was transferred to the Court of II Addl. Metropolitan Magistrate, Nampally and renumbered as CC No. 387/06, the case was pending trial before the X Metropolitan Magistrate, Secunderabad. Mr. H. Krishna Mohan was the Public Prosecutor of this Court and the Public Prosecutor in charge of and conducting prosecution in CC No. 773/03. In view of the provisions of Sec.321 Cr.P.C. as interpreted in the judgment of the Constitution Bench of the Supreme Court in Surjit Singh (1 supra), it is the legal opinion of the concerned Public Prosecutor in charge of the case and conducting the prosecution i.e., Mr. H. Krishna Mohan, which alone is the valid and competent opinion. The opinion of Mr. M. Kishore Kumar is wholly irrelevant, incompetent and an extraneous document and of no legal consequence. H. Krishna Mohan, which alone is the valid and competent opinion. The opinion of Mr. M. Kishore Kumar is wholly irrelevant, incompetent and an extraneous document and of no legal consequence. This opinion is also speculative and almost records a conclusion on the outcome even without a trial and oblivious that judicial authority had already rejected the discharge petition filed by the accused. The decision of the 1st respondent founded on such an opinion is unsustainable; (iv) The DGP despite having intimated to the State Government in a letter dated 28.12.2005 (that the opinion of Mr. H. Krishna Mohan, the APP of the Court of the X Metropolitan Magistrate is the only competent and valid opinion), failed to inform the State Government about this earlier opinion regarding the incompetence of any other Public Prosecutor, while forwarding the second opinion (though earlier dated) of Mr. M.Kishore Kumar through the letter dated 05.05.2006. It is the duty of the DGP as a senior professional civil servant to inform the 1st respondent as to the clear limits of the law; (v) U/Sec. 321 Cr.P.C. the withdrawal from prosecution and the discretion to withdraw from the prosecution is that of the Public Prosecutor concerned and conducting the prosecution of a case and none else. While it is open to the Government to suggest to the Public Prosecutor to consider in his independent assessment and discretion the withdrawal from prosecution, no authority including the Government can direct or compel the Public Prosecutor to exercise the statutory discretion in a particular manner. Where the Government, as in this case, addresses the Public Prosecutor to consider withdrawal from the prosecution, the Government is required to record clear and cogent reasons however brief, indicating the facts, circumstances and relevant factors on the basis of which it considers it appropriate to address the Public Prosecutor in this regard. Recording of such reasons is mandatory and non-derogable. It is only when reasons are recorded that the Public Prosecutor concerned and competent be in a position to arrive at an independent judgment as to the appropriate decision with regard to withdrawal from the prosecution, on evaluating the reasons, facts and circumstances set out in the letter of the Government requesting the intervention of the Public Prosecutor. It is only when reasons are recorded that the Public Prosecutor concerned and competent be in a position to arrive at an independent judgment as to the appropriate decision with regard to withdrawal from the prosecution, on evaluating the reasons, facts and circumstances set out in the letter of the Government requesting the intervention of the Public Prosecutor. This is so since the Abdul Karim decision of the Supreme Court mandates the Public Prosecutor to set out the material he considers for withdrawal, in the application to the Court. Recording of such reasons is also imperative as a corollary of the need of fair and transparent governance. Only if reasons are recorded in the communication addressed by the Government to the Public Prosecutor, it is possible for the Public Prosecutor to exercise an informed, rational and independent discretion. Reasons so recorded would also enable effective judicial review when challenged by a person aggrieved by the order of the Government; (vi) Having regard to the stage at which the accused 1 to 3 petitioned the Government seeking withdrawal of prosecution and the several and successive obstructionist tactics adopted by the accused in particular respondents 6 to 8 herein, to hinder even the commencement of the trial, before venturing to address the Public Prosecutor to consider withdrawal from prosecution, the Government ought to have considered the fact that Crl.M.P. Nos. 2092/03, 3439/03, 3440/03 seeking discharge, filed by A1 to A6 were dismissed; the Criminal Revision Petitions filed there against were also dismissed; and Crl.P.No. 4462/05 filed by the 6th respondent (A1) was also dismissed. These determinations constitute a rejection by the judicial branch of the persistent claim of the accused that there was no case or material against them for proceeding with the charge, prosecution and trial. Even if the Government wanted to address the Public Prosecutor concerned to consider withdrawal of prosecution for reasons other than the merits of the prosecution such as overriding public interest on account of some special position of the accused which requires that they be not prosecuted, the Government is required to record such reasons so as to enable judicial scrutiny of such executive assessment. Recording of reasons is thus and in any case an unavoidable obligation of the Government when addressing the Public Prosecutor to withdraw the prosecution. No such or any reasons are recorded in this case. Recording of reasons is thus and in any case an unavoidable obligation of the Government when addressing the Public Prosecutor to withdraw the prosecution. No such or any reasons are recorded in this case. (vii) It is grossly improper for the State Government or any authority to employ peremptory language in addressing the Public Prosecutor in the mater of exercise of discretion u/Sec. 321 Cr.P.C. The language employed in addressing the Public Prosecutor must be consistent with the statutory independence of the Public Prosecutor; (viii) Criminal law administration including criminal justice administration is the public and sovereign obligation of a constitutional Government. Prosecution of the offenders of law is a fundamental postulate of sovereignty. Even where the Government considers it appropriate to address the Public Prosecutor requesting exercise of discretion u/Sec. 321 Cr.P.C. it must clearly caution itself that investigation or prosecution of criminal cases ought not to be switched on and off to accommodate the private concerns of the accused even if they be in positions of power or wealth. Criminal law is not the pocket borough of politicians, bureaucrats, or other persons in public office or in positions of power and wealth. Equality before law and equal protection of the laws is a mandate of Article 14 of the Constitution of India, which circumscribes all State power. All public power is a public trust and cannot be jettisoned, high jacked, bent or abused to favour a chosen few or the privileged who have access to the corridors of executive influence. The Conclusion: On consideration of the facts and circumstances of the case, the pleadings on record and a careful perusal and analyses of the Government record pertaining to the issuance of G.O. Rt. No. 1646 Home (Legal-II) Department, dated 18.09.2006 this court holds that G.O. Rt.No. 1646 is arbitrary, perverse and illegal. It records no reasons and sets out no justification for addressing the Public Prosecutor to withdraw the prosecution against respondents 6 to 8 (A1 to A3). It is vitiated on account of total non-application of mind and for reliance on the wholly unauthorized and incompetent opinion of the Public Prosecutor Mr. M. Kishore Kumar, purportedly dated 11.02.2005. It records no reasons and sets out no justification for addressing the Public Prosecutor to withdraw the prosecution against respondents 6 to 8 (A1 to A3). It is vitiated on account of total non-application of mind and for reliance on the wholly unauthorized and incompetent opinion of the Public Prosecutor Mr. M. Kishore Kumar, purportedly dated 11.02.2005. It is vitiated since it records that the State Government has decided to withdraw from the prosecution, a decision which is wholly beyond the jurisdiction of the State Government, being vested exclusively in the Public Prosecutor concerned, u/Sec. 321 Cr.P.C. G.O. Rt. No. 1646 Home (Legal-II) Department, dated 18.09.2006 is accordingly quashed. The petitioner, now aged about 83 years, had lodged a private complaint in the year 2001. The chargesheet was filed by the Gopalapuram Police Station in May 2003 against six accused including respondents 6 to 8, after an elaborate investigation involving examination of 53 documents and by recording a clear and cogent opinion by the Investigating Officer that the evidence collected during the course of investigation fully establishes that Accused 1 to 6 had committed offences under the provisions of the law set out in the chargesheet. The accused, in particular respondents 6 to 8 herein, attempted every stratagem to subvert the trial including by filing several and successive petitions for discharge from prosecution, quashing of the prosecution. The trial was successfully stalled from 2003 onwards, for nearly 6 years. On 10.08.2005 (in Crl.P.No. 3025/05 filed by the petitioner) this court directed the trial court to ensure commencement of the trial, recording of evidence on either side and to dispose of the same in accordance with law within three months from the date of receipt of a copy of the judgment, duly referring to the High Court's circular dated 20.07.2005 with regard to expeditious disposal of criminal cases and keeping in view the advanced age of the de facto complainant, the petitioner herein. At every stage, the respondents 6 to 8 herein managed to stonewall and subvert the process of speedy administration of criminal justice. After the several campaigns before the judicial branch failed, these respondents procured a wholly arbitrary and perverse order from the 1st respondent by the impugned G.O. to contrive withdrawal of prosecution against respondents 6 to 8 herein. At every stage, the respondents 6 to 8 herein managed to stonewall and subvert the process of speedy administration of criminal justice. After the several campaigns before the judicial branch failed, these respondents procured a wholly arbitrary and perverse order from the 1st respondent by the impugned G.O. to contrive withdrawal of prosecution against respondents 6 to 8 herein. Though from the frame of the prosecution and the chargesheet (in CC No. 387/06 (old CC No.773/03) on the file of the II Addl. Metropolitan Magistrate, Nampally), the prosecution of accused 4 to 6 cannot independently sustain without the prosecution of the principal accused A1 to A3, the 1st respondent oblivious to the Governance Dharma to confirm to equal and equitable treatment, did not even consider withdrawal of prosecution against the other accused and was satisfied with confirming this largesse exclusively on the respondents 6 to 8. The trial in CC No. 387/06 and consequently in CC No. 294/06 (on the file of the V Addl. Chief Metropolitan Magistrate, Hyderabad - Juvenile, against the 6th respondent) was thus interdicted despite this court fixing the time frame of three months for conclusion of the trial in Crl.P.No. 3025/05, by the judgment dated 10.08.2005. This conduct of the respondents has clearly occasioned serious trauma, led to denial of speedy and efficacious justice to the petitioner, a senior citizen and constitutes abuse of the process of law. In these exceptional circumstances, to meet the ends of justice; as a measure of deterrence to the respondents for abuse of the process of law, this court considers it appropriate to impose costs in an amount of Rs.20,000/- (Rupees Twenty Thousand only), of which Rs.5,000/- shall be paid by the 1st respondent and Rs.15,000/- by the respondents 6 to 8, to the petitioner, within a period of four weeks from the date of receipt of a copy of this judgment. In the facts and circumstances of this case it is hereby directed that the trial in CC No. 387/06 before the II Addl. Metropolitan Magistrate, Nampally and in CC No. 294/06 on the file of the V Addl. Chief Metropolitan Magistrate, Hyderabad (Juvenile) be taken up forthwith and concluded within a period of three months from the date of receipt of a copy of this order. Metropolitan Magistrate, Nampally and in CC No. 294/06 on the file of the V Addl. Chief Metropolitan Magistrate, Hyderabad (Juvenile) be taken up forthwith and concluded within a period of three months from the date of receipt of a copy of this order. The trial in the aforementioned cases shall be conducted on a day-to-day basis so as to ensure conclusion within the time directed above. The writ petition is accordingly allowed as above with costs as directed. Copies of this order be forwarded urgently to the II Additional Metropolitan Magistrate, Nampally, Hyderabad and to the V Additional, Chief Metropolitan Magistrate, Hyderabad (Juvenile) for information and compliance as directed.