WITHDRAWAL FROM PROSECUTION

By

Name of the Student: Meghana Rani

Roll No.: 19LLB072

Semester: IV

Name of the Program: 5 year (B.A., LL.B. / LL.M.)

Name of the Faculty Member: Asst. Prof. Ms. Soma Battacharjya

Date of Submission: 30-04-2021

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM– 531035, ANDHRA PRADESH

1
 GRAMMARLY REPORT

The Thesis, I submit does not have any grammar mistakes and well researched based on facts of the subject
solely based on my understanding. This Thesis is not plagiarized from any other authors but cited to support
my thesis to give readers a better understanding of the plethora of the topic

2
 Acknowledgment

First and foremost, I have to thank my research supervisor Asst. Prof. Ms. Soma Battacharjya madam.
Without her assistance and dedicated involvement in every step throughout the process, this paper would
have never been accomplished. I would like to thank you very much for your support and understanding over
these past few months.

I would also like to thank my university for nurturing me and contributing to utilize the state of art library,
where I found some really informative books that deal with my thesis. Finally, I would like to thank my
seniors for their guidelines and mental support.

3
 ABSTRACT

In crime, a person's offence is only against someone but against society as a whole (state). The State itself is
also a party in criminal affairs. The Public Prosecutor is responsible for prosecuting criminal cases. Under
Section 321 of the Criminal Procedure Code, either in general or in relation to one or more of the crimes
under trial, the public prosecutor or the assistant public prosecutor may cancel his prosecution. The Court's
permission is required for this purpose.

In essence, the UAPA, POTA does not have the adequacy of section 321 of the Cr.P.C.. but also refers to the
civil investigation or legal analysis guidelines that are a central point of section 321 of the Cr.P.C. In these
lines the criterion of legal survey or judicial review is substance in each extraordinary law as to its strength to
grant consent to the withdrawal from prosecution request documented by the public prosecutor irrespective
of whether section 321 matters in its structure as noted in Cr PC.

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 TABLE OF CONTENTS

1. ABSTRACT……………………………………………………………………………4

2. CHAPTER 1……………………………………………………………………………6

 Introduction

3. CHAPTER 2……………………………………………………………………………8

 Section 321 in the Code of Criminal Procedure

4. CHAPTER 3…………………………………………………………………………..9

 Withdrawal from Prosecution

5. CHAPTER 4……………………………………………………………………………12

 Discretion of Public Prosecutor or of court in the matter of Withdrawal

6. CHAPTER 5……………………………………………………………………………14

 Consequences of withdrawal from Prosecution

7. CASES………………………………………………………………………………….15

8. CONCLUSION…………………………………………………………………………22

9. BIBLIOGRAPHY………………………………………………………………………22

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 CHAPTER 1

INTRODUCTION

In crime, a person's offence is only against someone but against society as a whole (state). The State itself is
also a party in criminal affairs. The Public Prosecutor is responsible for prosecuting criminal cases. Under
Section 321 of the Criminal Procedure Code, either in general or in relation to one or more of the crimes
under trial, the public prosecutor or the assistant public prosecutor may cancel his prosecution. The Court's
permission is required for this purpose.

Article 321, Cr. P. c Section 494 of the Old Code, applies unless a proviso was inserted again. The proviso
provides that consent to a matter over which the Appropriate Government of the Union extended or was
investigated by the Special Police Institution or involves misappropriation, destruction or loss of property of
the central government should be obtained before a Public Prosecutor moves the Court for its withdrawal
from prosecution.

The purpose of Section 321 Cr. P. C. seems to reserve the right to withhold any criminal proceeding from the
executive government, for a longer period of public policies such as inappropriate public punishment on
State grounds; a wider public concern such as law and order preservation; restoration of public peace and
unity, altered social, economic and political conditions.

It is necessary to note that the term "removal from prosecution" and not "removal" is included in Sections
321 Cr. P. C. This is such that the Public Prosecutor can, at any time before the judgment, file an application
for withdrawal from prosecution where a prosecution has initiated one or more offences against one or more
people. This means that one or more crimes against one or more people have been withdrawn. The term used
would necessarily have included closing the proceedings if the prosecution was 'withdrawn.'

The General Executive power, with the permission of the Court, is given in section 321 of the Code to
withdraw from proceedings by the Public Prosecutor or the Assistant Public Prosecutor. Whether approval is
given, the discharge or acquittal of the convicted as the case may be shall be followed up. When a withdrawal
has occurred since an indictment has been filed, the convicted shall be released for such offences or crimes
and the accused shall be cleared for such offences until such a withdrawal has been filed after an indictment
has been brought, or when there is no accusation under the Code.

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AIM OF THE STUDY

The aim of the study is to know about Section 321 of Criminal Procedure Code which deals with the
withdrawal from prosecution.

SCOPE OF THE STUDY

The scope of the study is limited to the Indian Jurisdiction.

LITERATURE REVIEW

The information is taken from various primary and secondary sources. Various sources like articles and
journals have been referred to get the required.

RESEARCH METHODOLOGY

The research is based on doctrinal method. The type of the study is both descriptive and explanatory.

Primary sources: Books

Secondary sources: Internet sources and articles

RESEARCH QUESTION

Whether the Withdrawal from Prosecution Law is misused in India?

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 CHAPTER 2

SECTION 321 in the Code of Criminal Procedure, 1973

“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-
 was against any law relating to a matter to which the executive power of the Union extends, or
 was investigated by the Delhi Special Police Establishment under the Delhi Special Police
Establishment Act, 1946 (25 of 1946 ), or
 involved the misappropriation or destruction of, or damage to, any property belonging to the
Central Government, or
 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 had 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.”1

The issue of the retreat from indictment by the public prosecutor is discussed in Section 321, 1973 of Cr.P.C.
This section corresponds with the old Cr.P.C. section 494. The modern segment is in two ways distinct from
the archaic. One, in the previous section, was not present the sentence in charge of a case that prompted
any public prosecutor to revoke a case. In the new section, a withdrawal from proceedings can only be
requested by the general prosecutor or the public prosecutor adjoining the case. Secondly, provisions (i) to
(iv) have been inserted to demand that the public prosecutor, in cases relating to the central government, be
permitted by the Central Government to refrain from prosecution.

1
https://indiankanoon.org/doc/1037589/
8
 CHAPTER 3

WITHDRAWL FROM PROSECUTION

Object and purpose

In essence, the UAPA, POTA does not have the adequacy of section 321 of the Cr.P.C.. but also refers to the
civil investigation or legal analysis guidelines that are a central point of section 321 of the Cr.P.C. In these
lines the criterion of legal survey or judicial review is substance in each extraordinary law as to its strength to
grant consent to the withdrawal from prosecution request documented by the public prosecutor irrespective
of whether section 321 matters in its structure as noted in Cr PC.

Withdrawal by whom

In accordance with section 321, a particular case can be withdrawn only by the general prosecutor or the
assistant public prosecutor who is in charge of a particular case. Similarly, if the private plaintiff occurs, the
state prosecutor cannot bear any substantial role in cancelling the proceedings. Although the section has no
basis on which the public prosecutor can record a removal from litigation, the underlying requirement
inherent in it is that the withdrawal should take into account the genuine issue with respect to organizing
equity. The court, where the request for withdrawal has been registered, has a duty to consider the grounds
for the withdrawal and to see that withdrawal does not have superfluous reasons or equity enthusiasm. It is
also the Court's duty to ensure that the lawyer is genuinely free to act, not only like the negligible State
government operators.

In various circumstances, the courts have made it difficult for public prosecutors to use their own free minds
and sometimes disagree where necessary with the state Government's evaluation. The fact of the matter is,
however, complex. The section allows the public prosecutor involved to freely use the brain of every
legislature without mediation except as explicitly required by statute. Then, in "Sheo Nandan Paswan v. State
of Bihar,2" the Supreme Court itself came to the conclusion that the Prosecutor was appointed by the State
Government and appreciated the office at the request of government; hence it was more of an administrative
professional than an independent court officer. The Supreme Court's view is in fact very close to reality.

2
https://indiankanoon.org/doc/1141543/
9
The courts have taken the whole of the matter to core: the State government will issue the Public Prosecutor
guidance or opinions on removal of an approach-related lawsuit, free equity, vexatious prosecution, and so
on. The Public Prosecutor must, however, apply his own mind to the request from the State Government and
may then decide about the grounds for either rejecting or continuing action. In the absence of a choice to
withdraw or withdraw, he should give the Court reasons and prove that he has committed his free mind to the
case in question. Again, whether he prefers the trial or the conviction, at that stage he has no other option but
to renounce his position.

In this respect, the public prosecutor's unrestricted use of the brain as he withdraws from the lawsuit is
disagreeable and heavy-handed with concrete concerns. It appears quite inaccessible that the State
Government has also achieved a central role in determining on the fate for removal from the trial, as is the
strict sense that the general Prosecutor or the public prosecutor's associate responsible for withdrawing from
prosecution.

Withdrawal from prosecution of whom and in respect of which offence

“Withdrawal from the prosecution of any individual either by and large or in regard of any at least one of the
offences for which he is tried. Given that where such offence-

1. Was against any law identifying with an issue to which the official power of the Union broadens, or
2. Was explored by the Delhi Special Police Establishment under the Delhi Special Police
Establishment Act, 1946, or
3. Included the misappropriation or decimation of, or harm to, any property related with the Central
Government, or
4. Was submitted by an individual in the administration of the Central Government while acting or
implying to act in the release of his official obligation, furthermore, the examiner accountable for
the case has not been designated by the Central Government he will not, except if he has been
allowed by the Central Government to do as such, move the Court for its consent to pull back from
the prosecution and the Court will, before concurring assent, direct the prosecutor to create before it
the authorization allowed by the Central Government to pull back from the prosecution.”3

3
https://blog.ipleaders.in/disposal-of-criminal-cases-without-full-trial/#Withdrawal_from_prosecution
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Withdrawal is possible up to what stage of trail

Any time before the decision is articulated, an application for withdrawal from prosecution may be made.
The Prosecutor may then record a request that action be withdrawn once the Court takes note of the case
before the Court articulates the decision and everything contemplated.

"In Rajendra Jain Vs State (1980)3 SCC 434," the Supreme Court held that the Court of Justice is competent
to give consent to the prosecutor to reject this offence, ignoring the fact that such a crime is trial able by the
Court of Session only. If a court and case is pending under the vigilant eye of the Court of Appeal, in that
instance, the Prosecutor cannot, in this instance, move an application to withdraw from action under the
watchful eye of the Court of Appeal in view of the fact that, under Section 321 of the Court of Justice, the
Court of Appeal does not mean Appeal to the Court of Appeal. In this regard, under the watchful eye of an
appeal court, the Public Prosecutor cannot pass an application for withdrawal of the prosecution.

Conditions precedent for withdrawal

As such, the preceding conditions for withdrawal are;

1. When made, it shall be published in relation to certain offences or offences before the accusation is
encircled, blamed or charged;
2. Whether it is done after an accusation has been made even if no charge is necessary under this Code,
it shall not be exempted from such offences or violations.

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 CHAPTER 4

DISCRETION OF PUBLIC PROSECUTOR AND OF COURT IN THE MATTER OF

WITHDRAWAL

Discretion of Public Prosecutor

Under this provision, the public prosecutor is given free discretion in selecting which cases to revoke. In any
event, such a scrutiny is not uncheck able and is responsible for the supervisory power of the Court, as set out
in the section itself. The High Court has sought to diagram the law by which the Public Prosecutor should
exercise his control by reason of "M.N. Sankarayarayananan Nair v P.V. Balakrishnan 4." The Court found
that due to the tacit need for retirement due to a genuine concern about the organization of equity, caution is
taken. Such proceedings cannot provide sufficient evidence to continue charges against the convicted or
condemned, or removal is indispensable to regulate lawful conditions, maintain open peace and serenity, and
so forth.

In "Rajender Kumar Jain v State" the Supreme Tribunal found that in circumstances where prosecutions are
brought or threatened, it is correct for the public prosecution to withdraw from prosecution in those special
cases in the light of genuine public interest. In addition, the Court found that the government of the state
rejects the prosecution by deciding to proceed with the prosecution or conviction of situations that threaten
the tranquilly of the public. The Court held that the little excitement of the public for suing a defendant
should be discarded to prove greater public enthusiasm in the public domain for maintaining unity and
peacefulness.

Discretion of Court

A high-ranking judge, a high-ranking judge, a first-class judge, or any legal officer who was previously
authorized to do so, could stop the proceedings at any point without making any judgment in a summons case
normally established other than on a grievance. The officer registers the intentions of Section 258 when
stopping the procedures.

4
https://indiankanoon.org/doc/1519960/
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Discretion of court in according consent

In the "Rajender Kumar Jain v. State,5" the Supreme Court ruled that there was ample articulation of decision
to remember both the court and the Court of Justice. In that way, all courts have the power to hear the public
prosecutor apply for withdrawal. Section 321 does not give the court guidelines to determine whether or not
to grant consent to the request for removal. The Court has thus sincerely taken care as to whether the lawyer
responsible for the case would give consent to the request for withdrawal from charges or prosecutions. The
Supreme Court has, however, identified various decisions which provide consent to a withdrawal request as
core values to be traced by courts.

First of all it must be granted that the court will not undermine the principles that the official will certainly
uphold and follow if it meets the requirement for an authorization of withdrawal from prosecution.

A criminal complaint against the accused was listed against him in "Bansi Lal v. Chandan Lal" under
separate IPC clauses. After the charges were limited, the matter was brought to the Court of Sessions. At this
stage, the Public Prosecutor recorded a request to withdraw from the trial, on the basis that the prosecution
does not want to prove and to continue with the prosecution's criminal proceedings. The court recognized the
request. The High Court also retained the provisional decision after the amendment was made.

Secondly, the court, though giving its permission to retire from the accusation, is a supervisor, and so the
court does not, in general, re-evaluate the reasons for which the open investigator decided to request
retirement. The court, however, was forced to see whether the open examiner had applied his free character
in choosing the question. It is also the significant duty of the courts to examine each application by an open
Lawyer responsible for the particular case for the withdrawal from arraignment over the use of free
personality.

Thirdly, considering the fact that, for the most part, the Court is not required by a sense of honour to examine
the grounds on the premises of the application registered by the State Prosecutor in charge, if the public
prosecutor does not conclude the judgment of the sensible man or that person is unfair to equity it may
investigate reasons to up have public premiums.

5
https://indiankanoon.org/doc/1519457/
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 CHAPTER 5

CONSEQUENCES OF WITHDRAWL FROM PROSECUTION

Various judgments, including those taken by the Supreme Court, have held that it could well be checked for a
judicial audit in accordance with Article 226 of the Constitution after the State government has rejected the
case and has obtained the consent of the court involved. In addition, courts have concluded that such an
outsider can mediate and appeal the withdrawal of the lawsuit, rather than the individual concerned, because
fraud is brought in public. Courts held that in a criminal case any person from the public has the position to
refute or contest the removal, particularly where a degradation and criminal confidence breakdown or
deception are involved.

Power of court to stop proceedings

In any case initiated in general terms than in groping a first class Magistrate, or another Judicial Magistrate,
with the previous approval of the Chief Judicial Magistrate, can for reasons that have to be recorded by him,
stop the proceedings at any stage without articulating any judgment.

Withdrawal from prosecution law is misused in India

The force of the public prosecutor/assistant public prosecutor to revoke an instance he is under supervision
after obtaining the State Government's composed permission and this approval is expected to be registered at
the Court under Section 321 of the CrPC 1973. In view of a genuine interest for transparent strategy and
equity rather than deception or throttle of the law process, the severity of the cancellation may be conjured up
by the Public Prosecutor/Assistant Public Prosecutor. The influence in this segment is news again, with
legislators of UP and Haryana trying late to recognize a couple of times to be withdrawn in order to increase
their politics.

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CASES

1. ABDUL KARIM VS STATE OF KARNATAKA & ORS6

CITATION: (2000) 8 SCC 710

BENCH: S.P. Bhuracha, D.P. Mohapatra

JURISDICTION: SUPREME COURT OF INDIA

FACTS

It passes through the mountainous forests between the States of Karnataka and Tamil Nadu. A man
named Veerappan took over for more than 10 years, on approx. 16,000 hectares of this forest, half in
Karnataka and half in Tamil Nadu. He is reported to have poached elephants in an extremely large way
and smuggled out ivory and sandalwood. He is allegedly guilty of the most abhorrent offences, including
the killing and kidnapping of 119 people. For ten years, Task Forces created by Tamil Nadu and the
States of Karnataka could not arrest him and bring him to justice.

On the night of the day of 30 July 2000, at 20.45 and 21.10 hours, the film star, Govindraj, a son-in-law
of Rajkumar, Nagesh, a relative of Rajkumar and Nagappa, an assistant film director, were taken from
Gajanoor by Veerappan and taken from him by the name of Rajkumar. Rajkumar and Nagesh are now
under detention at Veerappans. Nagappa is reportedly escaped and Veerappan released Govindraj. Tamil
Nadu is a city on the Karnataka boundary, Gajanoor.

On July 8, 1999 the Director General of the Karnataka State Police told the Inspector General of Tamil
Nadu State Police that it had been reliably learned that during his last visit to the farmhouse in Gajanoor
Veerappan was planning to kidnap Rajkumar and had asked for sufficient safety when he visits Gajanoor.
This record shows that the police were unable to defend Rajkumar and found the police to be a challenge.
On 22 June 2000, he visited Gajanoor, but the Gajanoor police officers had not been told about it, but
they had learnt about his involvement and had made security arrangements. They were not informed
about him. No information about Rajkumar's visit to Gajanoor was obtained on 28 July 2000 and only
after the kidnap had they learned it.

During the abduction, Veerappan gave an audio cassette to the wife of Rajkumars for delivery to the
Chief State Minister of Karnataka. He required an emissary to be sent to Veerappan by the audio cassette.

6
https://indiankanoon.org/doc/590879/#:~:text=He%20is%20alleged%20to%20be,to%20justice%20for%2010%20years.
15
In Chennai, on 31 July 2000 the Heads of State of the States of Karnataka and Tamil Nadu agreed to send
Gopal as an emissary, who was an emissary when on 12 July 1997, Veerappan abducted and released 9 of
the forestry officers of the State of Karnataka. Gopal went to visit Veerappan with two team members
and a videographer on his first mission in the forest on 1 August 2000. On 5 August 2000, Gopal sent
Chennai an audio tape, which requested the release of Rajkumar in Veerappan's voice and in an associate.
The following day, August 6, 2000, at the Presse Conference held on the day itself the Chiefs of
Ministers for Karnataka and the States of Tamil Nadu met in Chennai to address the requests and to make
their replies public.

CONTENTIONS

PROSECUTOR

The Prosecutor submits that the suspects who are under bail did not repeat the crimes and did not
participate in any related offences and terrorist acts in this region were not recently noticed. The
Prosecutor submitted that the Prosecutor agreed to remove all accused under offences of section
punishable in Sec. 3, 4 and 5 of the TADA from the court, in order to preserve the peace and
normalization in the frontier region and among the citizens living within the border area and to preserve
harmony between the public and the inhabitants of that specific settlement.

The Prosecutor is also submitted that proceedings be continued in connection with other violations and
allegations are to a certain degree subject to Sec.3 and 4 of the TADA, under the Arms Act, the Explosive
Substances Act. Consequently, no injustice will be brought if, for crimes punishable by U/sec. 3,4 and 5
of the TADA Act, the prosecutor withdraws the charges.

The Prosecutor further argues that, since the Central Government has already removed the Central Law,
no conviction for offences punishable under U/sec.3, 4 and 5 of the TADA Act will automatically serve
some reason. The Prosecutor submits that it is appropriate to withdraw from prosecution in accordance
with Sections 3, 4 and 5 of the TADA act, in the greater interest of the State and in order to prevent any
unwelcome situation in the borders region.

The prosecutor submits that no justice in respect of any crime under Sections 3, 4 and 5 of the TADA Act
will lead to a State withdrawal from prosecution. The Procurator is hereby pleased to grant the Hon'ble
Court consent to withdraw the charges against the accused in relation to the crimes punishable by U/s 3,
4, 5, and the accused and the case against the Designated Court for continuation of trial in the interest of
the judicial system and transferred to the Regular Court of Sessions for other crimes of justice interest.

16
APPELLANT

In the penal appeal before us, the appellant was contrary to the request of the special prosecutor. He is the
son of Shakeel Ahmed. As the request says, Veerappan and his friends were alleged to have been killed.
The opposition appellants pointed to the kidnapping of Rajkumar, alleging that the Government of the
State of Karnataka subsequently complied with Veerappan's claims and notified him, which were
extensively publicized in the media, that they would drop all charges against Veerappan and his
associates. The declaration of opposition argued that the decision to withdraw the TADA cases had no
compelling grounds.

It argued that the Special Public Prosecutor's job was to warn the court of motives for withdrawing the
case and that the court was to learn the reasons. In reply to the statement of opposition the Special Public
Prosecutor argued that not everyone's charges against Veerappan and his associates were removed and
tried. He thus rejected the assertion in the declaration of opposition that Veerappan had submitted to
extortion by the Government of the state of Karnataka. When the prosecution of the cases was under way
and the testimony of 51 witnesses had been registered, the appeal of the Special Prosecutor was made.
The trial took place on the night Rajkumar was kidnapped and continued until 30 July 2000.

HELD

The law states that while the Government may have instructed the public prosecutor, guided or sought to
withdraw from the prosecution, it is incumbent upon the public prosecutor to turn his mind to any
applicable information, and to thus be assured in good conscience that its removal from the prosecution
would serve the public interest. Since contemplating all of this, the Court, in particular, must be confident
that the General Prosecutor has independently exercised his mind, namely that the Public Public
Prosecutor's good faith in the public interest is the view that its retirement from trial would not stifle or
thwart the law or trigger manifest injustice.

The Government of Tamil Nadu cannot comply with Veerappans' request to release the five prisoners
from prison, after resigning the order under section 321 issued by the Designated Court in Chennai in the
Radio Venkatesan case. Under the conditions, the order of the Government of the State of Tamil Nadu
releasing the other four people from custody is necessary in accordance with the National Security Act.

The defendants can be given individual reasons to challenge or for bail the ongoing trial of the TADA
charges. In that respect, if told, they would be free to take proceedings.
17
 2. RAJENDRA KUMAR JAIN VS STATE THROUGH SPECIAL POLICE ESTABLISHMENT
& OTHERS IN INDIA7

CITATION: 1980 AIR 1510 1980 SCR (3) 982 1980 SCC (3) 435

BENCH: Reddy, O. Chinnappa (J)

JURISDICTION: SUPREME COURT OF INDIA

ACT: Section 321, Scope of conditions under which withdrawal from prosecution are permissible-
Competency of the Magistrate’s Court to permit withdrawal

FACTS

Section 321 of the Code of Criminal Procedure, 1973 corresponding to Section 494 of the Code 1898
states that a case can be withdrawn from trial at any time before the Court's permission is ruled by the
Public Prosecutor or Assistant Public Prosecutor. In Criminal Appeal No. 287/79, N. S. Mathur Special
Public Prosecutor's application under section 321 of the Criminal Proceedings Code of 1973, against
George Mathew Fernandes and others, 24-976 was allowed to be withdrawn on 26 March 1977.

He shared the view of the learned chief Metropolitan Magisrate that "the agreement to the withdrawal
from the investigation is expedient." In accordance with Section 397 of the Code of Criminal Procedure,
1973, the revision petition contesting the aforementioned Order granting the High Court's authorization to
revoke filed at the High Court. Furthermore, the High Court ruled that the appellant had no locus standi.

Special Leave Petition (Crl.), No. 3115/79, by the State of Chaudhury Bansilal Ex-Defense Minister, ex
son Surinder Singh, ex M.L.A., R. S. Verma, ex. Deputy Commission No. 186-1, entitled the Public
Prosecutor, to withdraw from prosecution directly under Article 136 of the Constitution on orders of the
Chief Judicial Magistrate Bhiwani in case No. 186-1.

CONTENTIONS

APPELLANT

1. The offences to be tried in court against the accused is solely trial able by a Court of sessions and the
Committing Magistrate had therefore no competence to grant consent to the withdrawal of the
prosecution

7
(2009, 05). Rajendra Kumar Jain V. State Through Special Police Establishment & Ors india.lawi.asia Retrieved 05, 2021, from
https://india.lawi.asia/rajendra-kumar-jain-v-state-through-special-police-establishment-and-ors/
18
2. The Public Prosecution had revoked its duty and submitted the application without its consideration at
the request of the Central Government.

3. In granting consent on the basis it was appropriate to do so the Magistrate was mistaken. Expedience
was never for the judiciary.

4. The public prosecutor was not responsible for the cases and, accordingly, the application was
incompetent, S. N. Mathur who filed a request for the withdrawal from the trial.

RESPONDENT

They also argued that the charges against the accused were political in nature and if the Government
thought at the time that the public prosecution was going to withdraw from public policy and advised the
public prosecutor to do so, then the Public Prosecutor should not be said to have withdrawn only because
of the proposal to withdraw from the prosecution.

It was also argued that, in the case of the fifth infringer, no action under Art. 361(2), as the Governor of a
State, could be instituted against him. In his reaction, Shri Panjwani argued that the Municipal Land Law
did not include political offences, and in the immediate case the revocation was merely political and not
at all for the public benefit. The case was revoked in order to appoint Shri George Fernandes Minister in
the Central Cabinet.

HELD

1. There is no warrant to think that the powers provided for under s. 321 Criminal Procedure Code can
only be exercised by the Court competent to discharge or acquit the defendant under any other clause
of the code. The power imposed by s. 321 is itself a separate power granted to the court, which has a
prosecution pending before it and which exert its power is not conditional on the power of the court,
in accordance with any other clause of the Code, to acquit or discharge the convicted. The right to
discharge or acquit the accused according to Article 321 is a special power based on Article 321
itself, which the Court may use irrespective of its investigative power in the crime or prosecute it.

2. Secondly, it may not be correct to state that under the 1973 Code of Criminal Procedure a
Committing Magistrate has no legal function to perform. S. 209 of the Code of Criminal Procedure
1973 obliges the judge, as it happens to the magistrate that the crime is tried solely by the Court of
Session, to take the matter before the Court of Assembly. The Magistrate must then be assured that an

19
 offence is revealed prima facie and that the offence so disclosed shall be dealt with solely by the
Court of Session.

3. Where no offence is revealed the Magistrate may fail to acknowledge the case or where it cannot be
trialed solely by the Court of Session, under the other clauses of the Code, the offence disclosed may
continue. To that extent the Court of the committing magistrate does discharge a judicial function.

4. This country is mostly responsible for investigating violent offences against executive authority under
the administration of the Criminal Justice scheme. The inquiry, and the proceedings for the
proceedings against the offence, was the task of the executive, and in that section the authority of the
magistrate was restricted and solely meant to deter violence. The following proposals derive from the
precedents of this Court:

 According to the Code, it is solely the Executive's duty to prosecute a criminal for serious offences.

 The prosecution's removal is the public attorney's executive role.

 The Public Prosecutor's right to withdraw from the proceedings and no other, and he cannot give the
discretion to any other person.

 The Government may advise the Public Prosecutor to revoke the case but none shall force it to do so.

 In order to further general aims of criminal justice, public order and stability, the Public Prosecutor
does not only revoke the case because of lack of evidence, but also for other specific reasons.
Additional civil, economic and political purposes for Sans Tammany Hall companies are definitely
part of the general goals of public justice.

 The Clerk of the court and accountable to the Court shall be the Public Prosecutor.

 In giving its consent to the removal, the Court exercises a supervisory role.

 The Court is not obligated to reconsider the reasons for the Public Prosecutor's application as an
independent entity, which were uninfluenced by irrelevant and alien factors, but only to determine
whether it applied his views as a free agent.

 The Court has a particular responsibility in this respect, as it is the sole repository of statutory trust to
vote to withdraw from litigation or to revoke its consent.

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It is the Public Prosecutor's responsibility to advise the Court and it is the Court's duty to understand the
circumstances that prompt the Public Prosecutor to retire. In the administration of justice, the Court has a
duty and stake and so does the 'Minister for Justice' in the public prosecutor. Both are obliged, by resort
to the rules of Section 361 Cr.P.C., to protect the administration of criminal judgement from potential
violation or misuse by the executive. 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.

5. Lack of proof is not the sole basis for the withdrawal of the Public Prosecution. In the past it has been
found that the General Prosecutor was obliged to refrain from proceedings resulting from mass
unbolt, community disruption, municipal disturbances, industrial disputes, student unrest, etc. in the
public interest and in the public interest. Wherever tensions are involved and the world is
overwhelmed, the prosecution must be withdrawn sometimes in order to get the peace, release the
atmosphere from the overburden of violence, resolve conflicts peacefully and keep calm after the
storm.

6. It is the public prosecution officer who must withdraw from the prosecution under the Code of
Criminal Procedure, and it is the Court who must agree to the withdrawal. Justly so, too, because the
judiciary's integrity so demands. The prosecutor is the Court's officer. He is prosecuting for the
citizens at the Court. It is also he who is responsible for starting a procedure for the prosecution
withdrawal. However, where such wide-ranging and critical public policy concerns are addressed, he
has to ask policymakers for advice and advice if he is right. Where policymakers themselves act in
the case first of all as, yes, when questions of momentous public policy are concerned, it is correct
that the decision should be made and the public prosecutor is advised to resign from the investigation,
it is not the Court's task to claim that the proposal came from the government and, therefore, the
public prosecutor is not to say free-minded.

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CONCLUSION

The Public Prosecutor shall be allowed, with the permission of the Court, to withdraw the prosecution by
Section 321 of the Criminal Procedure Code. The Section has only to make sure that the Public Prosecutor is
acting in good conscience and the Court is confident that power is properly exercised. Unless the Court
concludes that the public prosecutor's opinion has been misplaced or that his ruling does not serve the public
interest, the judgment under this provision cannot be interfered with in a slight way. The Court has a
particular responsibility in this respect as it ultimately holds statutory confidence to give consent to the
withdrawal.

Overall, this part has a lack of consistency because the public prosecutor's power lies in the precarious
position in which he has to choose his work or the justice and, unfortunately, the favored alternative remains
the task. In general, there is a lack of clarification. Public prosecutors' authority must be specifically
established, in order that they may exercise their discretion in accordance with the statute on the promotion
of justice.

BIBLIOGRAPHY

1. Sinha, Shubham. Criminal Procedure Code of India: Indian Law Series. N.p., CreateSpace
Independent Publishing Platform, 2015.

2. https://blog.ipleaders.in/disposal-of-criminal-cases-without-full-trial/#Conclusion

3. https://indiankanoon.org/

4. https://ujala.uk.gov.in/files/ch08.pdf

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