DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

WITHDRAWL FROM PROSECUTION – SECTION 321 CRPC

CRIMINAL PROCEDURE CODE

MS. SOMA BATTACHARJYA

PALAK RAWAT

ROLL NO. - 2018059

SEM - IV
CONTENTS

1) SYNOPSIS...........................................................................................................................3
2) INTRODUCTION……………………………………………………………....………...7
3) SECTION 321 CRPC...................................………………………....................................7
4) LEGISLATIVE INTENT AND OBJECT...................………………………………........8
5) SCOPE, APPLICABILITY AND GROUNDS...............................…………………........9
6) INTERPRETIVE ISSUES.................…………………………………………….....…...11
• WHO CAN WITHDRAW?
• CONSENT OF COURT
• VICTIMS LOCUS STANDI
7) HOW WITHDRAWAL FROM PROSECUTION LAW IS MISUSED IN INDIA?.....19
8) CONCLUDING OBSERVATIONS………………………………………………..........22
9) BIBLIOGRAPHY…………………………………………………………………..........23
 SYNOPSIS

INTRODUCTION –

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

Section 321 Cr.P.C states that –

WITHDRAWAL FROM PROSECUTION - The Public Prosecutor or Assistant Public

Prosecutor in charge of a case may, with the consent of the Court, at any time before the
judgment is pronounced, withdraw from the prosecution of any person either generally or in
respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of
such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is
required, he shall be acquitted in respect of such offence or offences: Provided that where
such offence-
(i) was against any law relating to a matter to which the executive power of the Union
extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police
Establishment Act, 1946 (25 of 1946 ), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to
the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or
purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case
has not been appointed by the Central Government, he shall not, unless he has been permitted
by the Central Government to do so, move the Court for its consent to withdraw from the
prosecution and the Court shall, before according consent, direct the Prosecutor to produce
before it the permission granted by the Central Government to withdraw from the
prosecution.
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 judgment, 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.

The scope and applicability of the section has been decided by courts in various judgements.
The four major 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

4. adverse effects that the continuance of the prosecution will bring to the public interest in
the light of the changed situation.

CASES REFERRED AND DISCUSSED –

1. Sheo Nandan Paswan v. State of Bihar and others (1983) 1 SCC 438
2. Subhash Chandra v. Chandigarh Administration, (1980) 2SCC 155
3. Abdul Karim and others v. State of Karnataka (2000) 8 SCC 710
4. Rajender Kumar v. State through Special Police Establishment, (1980) 3SCC 435
5. Rajendra Jain v. State (1980)3 SCC 434
6. M.N. Sankarayarayanan Nair v. P.V. Balakrishnan,
7. State of U.P. v. III Additional District & Sessions Judge, 1997 Cri LJ 3021 (All).
8. State of Punjab v. Union of India, (1986) 4 SCC 335.
9. Bansi Lal v. Chandan Lal, (1976) 1 SCC 421.
10. V.S. Achuthanandan v. R. Balakrishna Pillai, (1994) 4 SCC 299
OBJECTIVE OF STUDY –
The main purpose of this elaborate study is to understand the object, scope and purpose
behind the inclusion of section 321 with the help of procedure to be followed. The study also
put special light on scope of misuse of this section in law with help of case laws.
SIGNIFICANCE OF THE STUDY –
The significance of this study is to understand the importance of such sections in the code and
its use and misuse over the time in cases. This study helps more to understand the procedure
following section 321 and interpretation by court through various cases.
SCOPE OF THE STUDY –
The scope of the study is limited to ‘Withdrawal from Prosecution – Section 321 Crpc’.
REVIEW OF LITERATURE –
Primary Source –
1. SARKAR The Code of Criminal Procedure - An Encyclopaedic Commentary on the
Code of Criminal Procedure, 1973
2. RATANLAL & DHIRAJLAL – The Code of Criminal Procedure
3. D.D. Basu – The Criminal Procedure Code, 1973.
Secondary Source –
Cases, Journals, Articles from E-resources like heinonline, SCC, Westlaw etc. Review is
done on a wider basis to elaborate in a accurate way.
RESEARCH METHODOLOGY –
The nature of the study is –
1. Descriptive
2. Explanatory
3. Analytical
This Paper will follow doctrinal research with 19th edition Bluebook Citation accordingly.
RESEARCH QUESTIONS –
1. Whether the prosecution can be withdrawn without assigning any reason as to why
the prosecution was sought to be withdrawn and is therefore unconstitutional and
violative of Article 14 of the Constitution of India?
2. Whether the State Government can issue Government Order for withdrawal of cases
without there being any request by the public prosecutor in charge of the case?
3. Whether the Procedure established under Section 321 of the code can be misused by
the state government?
 4. Whether the application to withdraw from the prosecution be withdrawn by the Public
Prosecutor?

CHAPTERIZATION –
1. SECTION 321
- Grounds given in code
- What exactly constitutes Public Interest?
2. Interpretive issues in Section 321
- Who can apply?
- Consent of the court
- Victims locus standi
- Can a third party oppose withdrawal from prosecution?
3. OBJECT AND PURPOSE
4. SCOPE AND APPLICATION
- With help of various case laws and guidelines issued by courts
- Can the application to withdraw from Prosecution be withdrawn by the Public
Prosecutor?
5. REFUSAL OF PERMISSION BY THE COURT
6. POWER OF COURTS UNDER 321
 INTRODUCTION

Once a prosecution is launched, its relentless course cannot be halted except on sound
considerations germane to public justice.
The above line contains within itself the principle on basis of which a Public prosecutor
proceeds to apply for withdrawal from prosecution. This principle lies entrenched in the
section 321 of Criminal Procedure Code of 1973. In criminology, an offence done by a
person is never against any particular individual 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.
UNDERSTANDING SECTION 321 –
The new section is different from the archaic one in mainly two aspects. One, in earlier
section, the phrase in-charge of a case was not present which led any public prosecutor to
withdraw a case. In the new section, only the Public prosecutor or Assistant public prosecutor
who is in-charge of the particular case may apply for withdrawal from prosecution. Second,
in the new section, clauses (i) to (iv) have been added to require permission from the Central
government for the Public prosecutor to withdraw from prosecution in cases related with the
Central government.
SECTION 321 Cr.P.C –

WITHDRAWAL FROM PROSECUTION - The Public Prosecutor or Assistant Public

Prosecutor in charge of a case may, with the consent of the Court, at any time before the
judgment is pronounced, withdraw from the prosecution of any person either generally or in
respect of any one or more of the offences for which he is tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of
such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is
required, he shall be acquitted in respect of such offence or offences: Provided that where
such offence-
(i) was against any law relating to a matter to which the executive power of the Union
extends, or
(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police
Establishment Act, 1946 (25 of 1946 ), or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to
the Central Government, or
(iv) was committed by a person in the service of the Central Government while acting or
purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case
hag hot been appointed by the Central Government, he shall not, unless he hag been
permitted by the Central Government to do so, move the Court for its consent to withdraw
from the prosecution and the Court shall, before according consent, direct the Prosecutor to
produce before it the permission granted by the Central Government to withdraw from the
prosecution.

THE LEGISLATIVE INTENT AND OBJECT BEHIND THE SECTION

Any crime is said to be committed not against just the individual but the entire society. Since
the entire society is injured by the act of the accused and since the entire society cannot
practically sue the accused person, the State arrogates the power and responsibility to initiate
prosecution against the offender. It is not the case that the private individual cannot initiate a
prosecution or that he or she cannot be represented by counsel of his or her choice, but such
counsel will be supervised by the public prosecutor. Thus, generally the Public Prosecutor or
the Assistant Public prosecutor is the authority responsible to conduct the case against the
accused in the court of law.
There may be some occasions in which the Public prosecutor does not find enough evidence
to further the prosecution case against the accused or that he or she realises that furthering the
prosecution case will lead to negating the prosecution evidence or that furthering the
prosecution may not be in the interest of public justice, peace or tranquillity. The legislature
provided the leeway to the public prosecutor and thus the state government to end such cases
furthering which the larger public interest may be compromised. Thus, the section 321
provides discretion to the Public Prosecutor to withdraw from prosecution, with the consent
of the court, in such cases wherein he or she thinks such withdrawal will lead to larger public
interest being served.
The object of Section 321, Cr.P.C. appears to reserve power with the executive Government
to withdraw any criminal case on longer ground 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.

DISCHARGE AND ACQUITTAL WHEN ORDERED?

According to clause (a) of s. 321, if the application for withdrawal from prosecution is made
before charges are framed and the court consents to such application, then the accused is
discharged in respect of the offences he or she was charged with.
According to clause (b) of s. 321, if the application for withdrawal from prosecution is made
after the charges have been farmed and the court consents to the application, then the accused
is acquitted in respect of the offences he or she was charged with

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 v. State of Bihar & Ors 1 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 cannot give
its consent to withdraw without itself applying mind to the fact of the case.
The Supreme Court also opined that the Public Prosecutor cannot 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,
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 v. Chandigarh Administration2 it was held 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 v. State of Karnataka3 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

1
(1983) 1 SCC 438
2
(1980) 2 SCC 155
3
(2000) 8 SCC 710
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 v.
State through Special Police Establishment4 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.”

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.

INTERPRETIVE ISSUES IN S. 321

Section 321 broadly comprises of three interpretive areas which have been dealt with by the
courts since the code came into existence.
First interpretative issue is – Who can apply for withdrawal from prosecution?
This issue has within itself deep seated convoluted issues of interpretation. For instance,
when prosecutor or assistant public prosecutor is referred to in section what agency does the
government have in dictating the decision of the prosecution, on what basis the public
prosecutor applies for withdrawal from prosecution, and, how much role does the government
play in influencing the decision of the prosecutor. 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

4
1980) 3SCC 435
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 v. State5 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.
If a person has been convicted by trail Court and case is pending before Appellate Court, then
at this stage the Public Prosecutor cannot 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
cannot move an application for withdrawal from the prosecution before an Appellate Court.
Discretion of Public Prosecutor
The public prosecutor is, under the section, endowed with unfettered discretion in deciding
what cases to be applied for withdrawal. Nonetheless, such discretion is not unreviewable
and, as provided in the section itself, is subject to courts supervisory function. In the case of
M.N. Sankarayarayanan Nair v. P.V. Balakrishnan, the Supreme Court tried to outline the
guideline in regard to which the public prosecutor can exercise his or her discretion. The
court observed that the discretion is guided by the implicit requirement that the withdrawal
should be in the interest of administration of justice. Such may include that prosecution is
unable to collect enough evidence to sustain charges on accused, or that withdrawal is
necessary for controlling law and order situation, or for maintenance of public peace and
tranquillity etc.

5
(1980)3 SCC 434
The Supreme Court in Rajender Kumar Jain v. State, observed that in cases when going
ahead with prosecution causes or threatens to cause violence, mass agitations, communal
violence, student unrests etc., it is okay and in the interests of public for the public prosecutor
to withdraw from prosecution in such particular cases. The court further observed that when
deciding between going forward with prosecution and withdrawing from prosecution in cases
which threaten the peace of public, the state government is right in withdrawing from the
prosecution. The court held that the narrower public interest of prosecuting the accused ought
to be jettisoned for securing larger public interest of maintaining peace and tranquillity in
society.
What exactly constitutes public interest?
The condition that public prosecutor can seek withdrawal from prosecution on basis of
securing greater public interest has proven to be vague and the executive has numerous times
misused this vagueness around this condition for securing its self-serving political interests.
Although an exhaustive definition for public interest is difficult to prepare, the courts have
determined the decision of executive on the scale of public interest in light of the facts and
circumstances of cases.
For instance, in State of U.P. v. III Additional District & Sessions Judge, the state
government sought to withdraw from prosecution against an infamous lower caste woman
dacoit, Phoolan Devi, who committed various crimes like murder, dacoity, etc., against some
higher caste people just to treat them a lesson so that they do not commit atrocities against
lower caste people. The Public prosecutor in charge sought to withdraw giving reason that the
accused was forced into such crimes due to the various atrocities committed upon her by the
higher caste people. However, the court reasoned that there is no service to the public interest
in withdrawing from prosecution in particular case and rather such withdrawal might lead to
caste based wars wherein every person would think himself or herself to take revenge of any
atrocities committed by another without taking recourse to lawful authorities creating chaos
and utter savageness.
In State of Punjab v. Union of India, the State government took a policy decision to
withdraw from prosecution against the employees of P&T Department in cases where there is
no trace of personal violence or material destruction. The Public Prosecutor filed application
for withdrawal under then section 494 of the old Cr.P.C. The Magistrate accepted the
application but High Court set aside the acquittal. The Supreme Court on appeal, held that the
public prosecutor can on opinion of the State government seek withdrawal from prosecution
in public interest. In the particular case, the court held that firstly, the court only needs to act
as supervisor i.e., check that the office of public prosecutor has not been used for purposes
other than to serve the interests of public justice. Secondly, again opening of trial may lead to
public unrest amongst the employees.
Role of State government in cases when larger public interest is involved
Although, as has been established in various Supreme Court cases that it is the public
prosecutor who is solely responsible for deciding whether to file and for filing applications
for withdrawal from prosecution, the Supreme Court in Rajender Kumar Jain v. State held
that in cases where large and sensitive issues of public policy and interest are at stake, the
public prosecutor ought to take advice from the State government because the public
prosecutor does not have the requisite source of information and resource to determine the
matter effectively.
The extent of discretion
The Supreme Court in Sheonandan Paswan v. State of Bihar reiterated the law dictated in
Ram Naresh Pandey case relating to the extent of discretion of the public prosecutor vis-à-vis
the State government. The court held that the State is responsible for bringing the accused
who commits crime against the society to justice. Thus, it is the prerogative of the State to
withdraw from prosecution. The Public Prosecutor may apply his independent and free mind
and come to the conclusion. If he or she concludes that prosecution should be withdrawn then
he may apply to the court with reasons. And, if he or she concludes that case ought not to be
withdrawn then he has two options – either to ask the government to relieve him from the
particular case lest he shall have to resign, or to forward the application and then while
hearing of the application give his or her considered opinion that such application is not
sustainable on grounds set out by him or her.
However, there are certain cases also which effectively bolster the view that the public
prosecutor has to apply his free mind and is not act as merely a post box of the state
government. In S.K. Shukla v State of U.P., the court observed that the office of public
prosecutor is important and cannot be used by the state government to fulfil their political
desires as per own whims and fancies. The public prosecutor being an officer of the court has
to act on his free mind and decide on the issue of withdrawal of application.
The contrasting decisions of the Supreme Court in regard to extent of discretion to Public
prosecutor vis-à-vis the State Government have puzzled the situation. However, when
observed in terms of pragmatism and practical application, the Supreme Court decision in
Sheonandan Paswan seems to be of greater relevance and authority because in this non-ideal
world, the State governments are not usually inclined to hear criticism or denial from its
employees or agents like Public Prosecutors and therefore whenever such officials like Public
Prosecutors tend to give advice contrary to opinion of the executive, the officials have to
resign or reluctantly follow the opinion of the government.
Can the application to withdraw from the prosecution be withdrawn by the Public
Prosecutor?
The Supreme Court in N. Natarajan v. B.K. Subba Rao and M/s V.L.S. Finance Ltd v.
S.P. Gupta held that the office of Public prosecutor is not post office and he or she is
responsible to the court and the collective. Further, it held that the public prosecutor has to act
independently when considering the issue of withdrawal from prosecution. Also, the court
held that as long as the application by the prosecutor is in the interests of public justice, the
application to withdraw the application for withdrawal from prosecution can be heard by
pertinent court.

Second interpretative issue is – the consent of the court.

This issue has also been widely discussed in courts of law. At the outset, it may seem pretty
simple to understand, but the complexities surrounding the consent of the court are numerous.
For instance, can the court consent without adducing reasons, can the court decline the
application without adducing reasons, and, what all does the court have to examine before
consenting to the application.
The Supreme Court in Rajender Kumar Jain v. State, held that the expression judgement is
wide enough to include in its purview both the courts- court of Committing Magistrate and
that of Court of Session. Thus, both the courts have authority to hear application for
withdrawal from prosecution from the Public Prosecutor. The section 321 does not provide
any guidelines to be followed by court in determining whether to give consent to the
withdrawal application or not. Thus, the court literally has unfettered discretion as regards to
giving consent to the application for withdrawal from prosecution filed by prosecutor in
charge of case. However, the Supreme Court has formulated through various judgements
guiding principles to be followed by courts in giving consent to withdrawal application.
First, the court should give consent only when it is satisfied that such grant of permission for
withdrawal from prosecution would serve the interests of justice and would not undermine
the principles which the executive is bound to uphold and follow.
In Bansi Lal v. Chandan Lal, a criminal case was registered under various sections of IPC
against the accused persons. The case was committed to the Court of Sessions after the
charges were framed. The Public Prosecutor at this stage filed an application for withdrawal
from prosecution on ground that the prosecution does not want to produce evidence and
continue the criminal proceedings against the accused persons. The court accepted the
application. On revision, the High Court also upheld the trial court decision. The Supreme
Court on appeal held that the trial court cannot mechanically give permission to withdraw
from prosecution to the public prosecutor. The court has to see that the grounds adduced in
favour of withdrawal are actually in the interests of justice and public interest. The court also
has to see whether the office of public prosecutor is misused by the executive to fulfil the
narrow interest motivated by politics.
Second, the court while giving consent to withdrawal from prosecution acts as a supervisor
and thus, generally, the court should not re-appreciate the grounds on which the public
prosecutor decided to apply for withdrawal. The court, however, is duty bound to examine
whether or not the public prosecutor applied his free mind in deciding the matter. Thus, it is
the courts important duty to scrutinize every application for withdrawal from prosecution in
regards to application of free mind by the public prosecutor in charge of the particular case.
In Sheonandan Paswan v. State of Bihar, the Supreme Court held that the court hearing the
application for withdrawal from prosecution acts as a supervisor and thus need not to go into
the evidence of the case concerned. The court should not be concerned with what the result
would be if all the evidence is considered. All the court should be concerned with is that in
considering the material placed before it, whether the public prosecutor applied his free mind
and whether the reasoning adopted by him suffers from inherent perversity which may lead to
injustice.
Third, notwithstanding the fact that court generally is not duty bound to look into the grounds
on basis of which the public prosecutor in charge filed the application, the court may look
into the grounds to uphold the interests of public when the reasoning of the public prosecutor
does not pass the test of reasonable man or such is perverse to the justice.
For instance, in Abdul Karim v. State of Karnataka, when the consent of the court was
sought by the public prosecutor in charge for withdrawal from prosecution against some
notorious criminals, the Supreme Court did not allow such application. The Supreme Court
observed that albeit the court is not required to examine the grounds which led the public
prosecutor in charge to apply for withdrawal from prosecution, the court shall have liberty to
re-examine them if the reasoning adopted by the public prosecutor seem to be perverse to the
public justice or such is not in consonance with the reasonable man standard.

Third interpretative issue is – Victims locus standi.

This issue although of grave importance is given lesser importance in interpretative arenas.
The case at the outset was initiated because it injured the victim primarily and then the
society, but, the State in building up the theory of Parens Patriae happily forgets the
concerns of the victim concerned. The State executive sometimes can sway into political
considerations which are antithetical to the interest of public and apply for withdrawal from
prosecution. The victim or any other person also should have a locus standi before the court
entertaining application for withdrawal from prosecution to oppose such application.
The section 321 is silent on the locus of the victim, complainant or any other person to
oppose the application of withdrawal from prosecution filed by public prosecutor in charge.
In Sheonandan Paswan v. State of Bihar, the appellant applied before trial court to initiate
proceedings under section 302 of IPC against the accused while at the same time the
prosecutor was applying for withdrawal from prosecution in the same case. The court rejected
the application of the appellant and granted the permission to public prosecutor in charge to
withdraw from prosecution. Something of the similar nature also happened in Subhash
Chander v. State. In this case, the private complainant opposed the application for
withdrawal from prosecution, but the application was permitted to be withdrawn.
The burning issue of the locus standi of the complainant or any other person to oppose the
withdrawal application has not been decided by court conclusively. In cases like State of
Bihar v. Ram Naresh Pandey, Rajender Kumar Jain v. State, Sheonandan Paswan v.
State of Bihar and M.N. Sankarayarayanan v. P.V. Balakrishnan, the Supreme Court on
the opposition raised by the complainant did hear the matter and decided but held also such to
be outside the locus standi of the complainant. On the other hand, various High courts like
that of Kerala, Bombay and Nagpur have upheld the locus standi of the private persons or
complainant to oppose the withdrawal application. But, High courts situated in Patna, Delhi
and Calcutta have taken a divergent view that private person and complainant do not have
locus standi to oppose the withdrawal application.
It becomes travesty of justice when a private person who is indeed the victim of the crime is
not allowed to oppose the withdrawal application. The state has the authority to prosecute the
accused on behalf of the society and victim but when the state does not fulfils this obligation
due to various reasons, the victim or the person from the community against whom also the
crime is committed as he is also equal part of community as the victim, should have the locus
standi to oppose the withdrawal application. There are indeed some cases which seem to be in
right direction. The Andhra Pradesh High Court in M. Balakrishna Reddy v. Principal
Secretary to Govt. Home Dept., held that an individual not being the victim of the crime is
equally endowed with right to oppose the withdrawal application from prosecution as is the
victim of the crime. Further, the court observed that the third person is part of the community
against whom the crime has been committed and thus he or she has locus standi to oppose the
withdrawal application.
In V.S. Achuthanandan v. R. Balakrishna Pillai, the Supreme Court accepted the locus
standi of the opposition leader in opposing the withdrawal application from prosecution
against a minister since no one else was opposing such application. Thus, at present, the trend
seems to be more in favour of the recognition to victims and third partys locus standi in
opposing the application for withdrawal from prosecution.

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 individual can oppose the application for withdrawal from prosecution and it
cannot be discounted on grounds of locus standi. In case of Sheo Nandan Paswan v. State of
Bihar, 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.
HOW WITHDRAWAL FROM PROSECUTION LAW IS MISUSED IN INDIA?
The power under this section are again in the news, with governments of UP and Haryana
recently trying to identify some cases to be withdrawn with an intent to make some political
gains. In Ranjana Agnihotri’s6 case, a full bench of Allahabad High Court considered four
questions relating to interpretation of section 321 of Cr. P. C., referred to it. In pursuance of
instructions issued by the State Government,
the Public Prosecutors, In charge of those cases, moved applications for withdrawal from the
prosecution of the accused in the said cases.
The petitioners preferred Writ Petition, thereby challenging vires of Section 321 of the Code
of Criminal Procedure 1973 as well as the instructions issued by the State Government to the
Public Prosecutors for withdrawal from the prosecution. The questions, thus framed by the
Division Bench, were:
• Whether the State Government can issue Government Order for withdrawal of cases
without there being any request by the public prosecutor in charge of the case?
• Whether the prosecution can be withdrawn without assigning any reason as to why
the prosecution was sought to be withdrawn and is therefore unconstitutional and
violative of Article 14 of the Constitution of India?
• Whether the prosecution of offence relating to Central Act be withdrawn without
taking permission from the Central Government?
• Whether the State Government after giving sanction for prosecution, review its own
order by issuing orders for withdrawal of the cases?
The full bench answered the four questions framed by the Referral Court (Division Bench) as
under:
1. The Government can issue an order or instruction for withdrawal from prosecution without
there being request from the Public Prosecutor In charge of the case, subject to the rider that
the Public Prosecutor shall apply his/her independent mind and record satisfaction before
moving an application for withdrawal from prosecution.
2. The prosecution cannot be withdrawn without assigning reason, may be precisely. If an
application is moved for withdrawal from prosecution in a case relating to terrorism and
waging of war against the country, and special reason has to be assigned keeping in view the
discussion, made in the body of judgment.

6
(2013 (11) ADJ 22
3. Prosecution under Central Acts where with regard to the offences, executive power of the
Union extends, prosecution cannot be withdrawn without permission of the Central
Government. For offences under Unlawful Activities (Prevention) Act, 1967, Explosive
Substances Act, 1908 and Arms Act, 1959 etc and the offences falling in Chapter VI of
Indian Penal Code or alike offences the executive power of the Union of India extends, hence
permission from the Central Government with regard to withdrawal of prosecution under
Section 321 Cr. P. C. shall be necessary.
4. State Government has got power to issue instruction or pass order even after sanction for
prosecution has been given in a pending criminal case, subject to condition that the
Prosecuting officer has to take independent decision with due satisfaction in accordance with
law on his own, before moving the application for withdrawal from prosecution in the trial
court.

Thereafter another full bench in Ram Narayan Yadav v. State of UP (2015) was constituted
to consider the powers of government exercisable under section 321 of Cr. P. C., the full was
supposed to consider following three questions;
1. Whether the power of withdrawal can be exercised by State Government under Section
321 of Code of Criminal Procedure in a whimsical or arbitrary manner or it is required to be
exercised for the considerations, just, valid and judicially tenable?
2. Whether decision taken by State Government for withdrawal of cases communicated to
Public Prosecutor with direction to proceed ahead is open to judicial review or not in a writ
jurisdiction under Article 226 of the Constitution of India?
3. Whether State Government should not be required to make scrutiny of various criminal
cases pending in Subordinate Courts to find out if they deserve withdrawal in exercise of
powers under Section 321 Cr. P. C. irrespective of fact that accused or anyone else has
approached the government for this purpose or not?
The court gave a detailed explanation stating that –

1. The State Government is not at all free to exercise its authority under Section 321 Cr. P. C.
in whimsical or arbitrary manner or for extraneous considerations apart from just and valid
reasons.
2. The decision taken by the State Government for withdrawal of the case communicated to
the Public Prosecutor is open to judicial review under Article 226
of the Constitution of India on the same parameters as are prescribed for invoking the
authority of judicial review.
3. The State Government is free to act under the parameters provided for to make scrutiny of
criminal cases pending in subordinate courts to find out as to whether they deserve
withdrawal under Section 321 Cr. P. C. or not as it is in the realm of the policy decision, and
call on the said score has to be taken by the State Government and same has to be based on
the parameters required to be observed while moving an application for withdrawal of
prosecution under Section 321 Cr.P.C.
 CONCLUDING OBSERVATIONS

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 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. The process of withdrawal from prosecution has as its prime actor – the Public
Prosecutor or the Assistant Public prosecutor, and as supervisor – the court. In this process, as
envisaged by the section itself, there is no role of the government. However, in practical
reality, the government is the executive concerned with prosecution and therefore inherently
has major say. Since the Public Prosecutor is appointed by the State government, it has a
relationship of agent-principal with the government which indeed becomes the source of all
interpretative and practical problems.
The binary role played by the Public Prosecutor has indeed become the source of problem in
discharging this function inasmuch the Public prosecutor is expected to fulfil the demands of
both the distinct pillars of democracy with full faith which seems far from reality. The Public
Prosecutor on one hand is expected to help the court, as the officer of court, in bringing truth
to the fore and on the other hand, as the agent of the government, expected by the
government to represent the case in favour of its policy. Thus, the discretion offered by the
section 321 onto the Public prosecutors or the Assistant Public Prosecutors seem to be
founded not in them but in the State governments because as recognised by the Supreme
Court itself in Sheonand Paswan case that in spite of Public prosecutor being an officer of
court, he also shares a relationship of agent-principal with the state government and thus, he
is required to follow the opinion of the state government or leave. Therefore, the culminating
effect of all this is that the public prosecutors generally surrender these discretionary powers
in front of the state government for the sake of their job and thus ultimately risking the public
justice. However, there is a safeguard though weak which provides the guidelines on basis of
which the public prosecutor can seek withdrawal from prosecution. The essential condition
being that such withdrawal should lead to service of larger interest of public justice.
BIBLIOGRAPHY