THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.29431 OF 2011 ORDER: This Writ Petition is filed to declare the action of the first respondent in issuing G.O.Rt.No.1609 dated 15.10.2011, whereby the third respondent was directed to take steps for withdrawal of prosecution against respondent Nos.5 to 23 in C.C.Nos.1177 of 2007 and 1178 of 2007 (Crime Nos.189 of 2005 and 194 of 2005), on the file of II Additional Judicial Magistrate of First Class, Nellore, as illegal, arbitrary and unconstitutional. Under Section 321 of the Code of Criminal Procedure, 1973 (Cr.P.C.) the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before 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. The power to seek withdrawal of prosecution has been statutorily conferred only on the Public Prosecutor or the Assistant Public Prosecutor in charge of the case. Even if such a request is made by them, it is for the Court to decide whether or not consent is to be accorded for withdrawal of prosecution. The impugned G.O. merely directs the third respondent (Director General of Police) to see that the Additional Public Prosecutor concerned applies his mind, and takes appropriate steps to file a petition under Section 321 Cr.P.C. for withdrawal of prosecution against the accused. It is no doubt true that paragraph No.3 of the impugned G.O. reads as if the Government had decided to withdraw prosecution. That, however, is of no consequence as Section 321 Cr.P.C. requires the Assistant Public Prosecutor concerned to apply his mind, and take an independent decision whether or not to seek withdrawal of prosecution. Learned Counsel for the petitioner would fairly state that no application under Section 321 Cr.P.C. has as yet been filed by the Assistant Public Prosecutor. The Assistant Public Prosecutor may or may not seek withdrawal of prosecution under Section 321 Cr.P.C., and, even if he does, the concerned Court may or may not accord its consent thereto. The Writ Petition as filed is pre-mature and is dismissed as such. However, in the circumstances, without costs. _____________________________ RAMESH RANGANATHAN, J November 03, 2011 MD THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.29431 OF 2011 November 03, 2011 MD