76 Uttarakhand Judicial & Legal Review

WITHDRAWAL FROM PROSECUTION

(Section 321 of the Cr.P.C.)

Ashutosh Kumar Misra*

In criminology, an offence done by a person is never against any

particular indivisual but against the whole society (state). Therefore in the
criminal matters, the state itself is a party. The prosecution of criminal
cases is conducted by the Public Prosecutor. Section 321 of the Criminal
Procedure Code enables the Public Prosecutor or the Assistant Public
Prosecutor to 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. For
doing so, consent of the Court is necessary.
Section 321, Cr.P.C. corresponds to section 494 of the Old Code
except that a proviso has been newly added. The proviso lays down that
consent of the Central Government should be obtained before a Public
Prosecutor moves the Court for the withdrawal from prosecution, whenever
the offence relates to a matter to which the executive power of the Union
extends or was investigated by the Special Police Establishment or involves
misappropriation, destruction or damage to Central Government property
or is committed by a Central Government Servant.
The object of Section 321, Cr.P.C. appears to reserve power with
the executive Government to withdraw any criminal case on longer grounds
of public policy such as inexpediency of prosecutions for reasons of State,
broader public interest like maintenance of law and order, maintenance of
public peace and harmony, changed social, economic and political situation.
It is important to observe that Section 321 Cr.P.C. uses the phrase
‘withdrawal from prosecution’ and not ‘withdrawal of prosecution’ the
effect being that when prosecution instituted for one or more offences
against one or more persons, the Public Prosecutor may at any time before
the judgement, file an application to withdraw from Prosecution. i.e.
withdrawal of one or more offences against one or all persons. If the
phrase used was ‘withdrawal of Prosecution’ that would have necessarily
meant the closure of case.
* Civil Judge (Sr. Div.), Dehradun
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Scope, applicability and grounds:

Section 321 of the Code gives a general executive discretion to
the Public Prosecutor or the Assistant Public Prosecutor to withdraw from
the prosecution, subject to the consent of the Court. The consent, if granted,
has to be followed up by discharge or acquittal of the accused as the case
may be. If withdrawal is made before a charge had been framed, the
accused shall be discharged in respect of such offence or offences and if
such withdrawal is made after a charge has been framed, or when under
the Code no charge is required, the accused shall be acquitted in respect
of such offence. But this Section gives no indication as to the grounds on
which the Public Prosecutor may move the application or the consideration
on which the Court is to grant its consent. In granting consent the Court
must exercise judicial discretion. In the case Sheo Nandan Paswan Vs.
State of Bihar and others (1983) 1 SCC 438 the Supreme Court opined
that Section 321 of the code enables the Public Prosecutor to withdraw
from the prosecution with the consent of the Court. Before on application
made U/S 321 Cr.P.C. the Public Prosecutor has to apply his mind to the
facts of the case independently without being subject to any outside
influence and secondly that the Court, before which the case is pending
can not give its consent to withdraw without itself applying mind to the
fact of the case.
The Supreme Court also opined that the Public Prosecutor can
not act like a post box or act on the dictate of the State Government. He
has to act objectively as he is also an officer of the Court. At the same
time Court is also free to assess whether the prima facie case is made or
not. The Court if satisfied can also reject the prayer. But it can not be
said that a public prosecutor’s action will be illegal, if he receives any
communication or instruction from the Government. On the contrary the
Public Prosecutor can not file an application for withdrawal from
prosecution on his own without instruction from the Government. The
majority of Judges in this case cited four grounds for seeking withdrawal
from prosecution-
1. lack of prospect of successful prosecution in the light of evidence,
2. implication of persons as a result of political and personal vendetta,
3. inexpediency of the prosecution for reasons of State and public policy,
and
78 Uttarakhand Judicial & Legal Review

4. adverse effects that the continuance of the prosecution will bring to

the public interest in the light of the changed situation.
In the case of Subhash Chandra Vs. Chandigarh Administration
(1980) 2SCC 155 it was helds that the Public Prosecutor who alone is
entitled to pray for withdrawal, is to act not as a part of executive but as
a judicial limb and in praying for withdrawal he is to exercise his independent
discretion even if it incurs the displeasure of his master affecting
continuance of his office.
Permission for withdrawal from prosecution cannot be granted
mechanically. Withdrawal must be for proper administration of justice and
only in Public Interest. It has been held by the Apex Court in the case of
Abdul Karim and others vs. State of Karnataka (2000) 8 SCC 710,
that an application under Section 321 Cr.P.C. could not be allowed only on
the ground that the State Government had taken a decision for withdrawing
the prosecution and such an order could only be passed after examining
the facts and circumstances of the case..........What the Court has to see
is 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, after considering the facts of the case, has to see whether the
application suffers from such improprieties or illegalities as would cause
manifest injustice, if consent was given.
In the case of Rajender Kumar Vs. State through Special Police
Establishment, (1980) 3SCC 435 the Supreme Court has held that "It
shall be the duty of the Public Prosecutor to inform the grounds for
withdrawal to 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 provision of Section 321, Cr.P.C. The independence of the
judiciary requires that once the case has travelled 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.”
Withdrawal from Prosecution 79

Duty of Government:
Before instructing the Public Prosecutor for withdrawal from the
Prosecution, State Government should also consider the matter carefully
and the file in which consideration is made should contain reasons. When
a matter is for benefit of society there is no scope of its being confidential.
If this procedure is followed chances of favouritism or extraneous political
considerations would be curbed to a great extent.

Who can withdraw prosecution:

Section 321, Cr.P.C. enables the Public Prosecutor or the Assistant
Public Prosecutor in charge of a case to withdraw from the prosecution
with the consent of the Court. After State amendment of the State of
Uttar Pradesh written permission of the State Government to that effect
is necessary for the Public Prosecutor or the Assistant Public Prosecutor
as the case may be, before an application for withdrawal is made in the
State of Uttar Pradesh and Uttarakhand. It is also necessary that the
permission of the State Government shall be filed in the Court.
When the case was being conducted by a Special Public Prosecutor
and subsequently another Special Public Prosecutor was appointed to
conduct the case without cancelling the engagement of the earlier appointed
Special Public Prosecutor, in the case of Sheo Nandan Paswan, it was
held that the latter Special Public Prosecutor could apply for withdrawal
from prosecution. But a Public Prosecutor has no power to withdraw a
case institution on private complaint.

Stage of withdrawal
Application for withdrawal from prosecution may be made at any
time before the judgment is pronounced. So the Public Prosecutor may
file an application for withdrawal from prosecution at any time ranging
between the Court taking Cognizance of the case till such time the Court
actually pronounces the judgment. In Rajendra Jain Vs. State (1980)3
SCC 434 the Supreme Court has held that notwithstanding the fact that
offence is exclusively triable by the Court of Session, the Court of
Committing Magistrate is competent to give consent to the Public
Prosecutor to withdraw from the prosecution.
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If a person has been convicted by trail Court and case is pending

before Appellate Court, then at this stage the Public Prosecutor can not
move an application before Appellate Court for withdrawal from
prosecution because under Sec 321 Cr.P.C. ‘Court’ means Trial Court,
not Appellate Court and also prosecution is made before a trial Court. So,
the Public Prosecutor can not move an application for withdrawal from
the prosecution before an Appellate Court.

Recording of reasons
Section 321, Cr.P.C. does not make it necessary for the Court to
record reasons before consent is given. However, it does not mean that
consent of the Court is a matter of course. When the Public Prosecutor
makes the application for withdrawal after taking into consideration all the
materials before him the Court exercises its judicial discretion by considering
such materials and on such consideration either gives consent or declines
consent. For justice, it is necessary that the Court should record reasons
about his satisfaction with the view of the Public Prosecutor but a detailed
order is not required.

Third-Party can oppose withdrawal

Any private indivisual can oppose the application for withdrawal
from prosecution and it cannot be discounted on grounds of locus standi.
In case of Sheo Nandan Paswan Vs. State of Bihar (1987) 1 SCC
288, the Supreme Court has held that since a citizen can lodge an FIR or
file a complaint and set machinery of Criminal law in motion, any member
of society must have locus standi to oppose withdrawal. Particularly the
offences of corruption and criminal breach of trust, being offences against
society, any citizen, who is interested in cleanliness of administration is
entitled to oppose application for withdrawal of prosecution.

Conclusion
Section 321 of the Criminal Procedure Code enables to the Public
Prosecutor to withdraw from prosecution with the consent of the Court.
All that is necessary to satisfy the Section is to see that the Public
Prosecutor acts in good faith and that the Court is satisfied that the exercise
of discretion by the Public Prosecutor is proper. The judgement of the
Withdrawal from Prosecution 81

Public Prosecutor under the section cannot be lightly interfered with unless
the Court comes to the conclusion that the Public Prosecutor has not
applied his mind or that his decision is not in the interest of public policy.
The Court has a special duty in this regard as it is the ultimate repository
of legislative confidence in granting its consent to withdrawal from the
prosecution.

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