INDEX

1. Introduction
a) Introduction to the area of study
b) Research Methodology
c) Research Problem
d) Research objectives
2. Withdrawal from Prosecution: Section 321 CrPC
3. Scope and Objectives of Section 321
4. Grounds for Withdrawal from Prosecution
5. Who can file an application for Withdrawal from Prosecution
6. How Withdrawal from Prosecution is misused in India
7. Conclusion
8. Bibliography
 WITHDRAWAL FROM PROSECUTION

INTRODUCTION

Introduction to the area of study

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. The doctrine of
withdrawal from prosecution is recognized in criminal procedural law in many countries. The
common law countries recognize the said doctrine as “discontinuance of the prosecution.” This
power is vested to the Crown Prosecutor. In the USA, the said doctrine is also known as nolle
prosequi, the prosecution will not and while it is not an acquittal, it constitutes a termination of
that particular prosecution1. Public Prosecutors play important roles like representing the state
and are charged with proving the guilt of the accused in the criminal justice system. This points
us towards an interesting set of questions – should public prosecutors be allowed to withdraw
criminal cases from prosecution leading to potential criminals not facing any prosecution and
escaping liability? What kind of circumstances can justify such an action? Are these decisions, if
taken, totally devoid of any socio-political influence? This paper attempts to navigate through
answering these difficult questions. While it could have its uses as a provision of law, as it helps
ease the burden on the judiciary by reducing their potential workload, it is argued that the
confinement of the Public Prosecutor’s discretion in Section 321, CrPC, by the executive will of
state governments creates room for great misuse2.

1
Withdrawal from Prosecution under Section 321 CrPc, available at: https://www.ourlegalworld.com/withdrawal-
from-prosecution-under-section-321-crpc-ourlegalworld/ (last visited on 15th Novemeber, 2022)
2
Taking back Justice: A Critical Appraisal of Section 321 of the Criminal Procedure Code, available at:
https://criminallawstudiesnluj.wordpress.com/2022/01/07/taking-back-justice-a-critical-appraisal-of-section-321-of-
the-criminal-procedure-code/ (last visited on 14th November, 2022).
Research Methodology

The data for the article would be taken from the studies which are made to understand the
detailed concepts of this topic. There are ample source of literature available on this topic. The
author has referred to authentic sites to impart the basics of this topic. Various judgments have
been referred to get clear information on the topic. This Research has incorporated Secondary
Data into consideration. There are many researchers who have done extensive research on
specific issues pertaining to this topic. Information and data have been collected from different
secondary sources like various websites, newspapers, books, research papers and different PDF
documents. The research will mainly be an observation-based study.

Research Problem

The main research problem here is regarding the topic, withdrawal of prosecution under Section
321 of Code of Criminal Procedure.

Research Questions/ Problems

The present paper explains the concept of Advocate’s right to strike. The following are the
objectives of the present paper:

 To provide an overview about the topic of withdrawal of Prosecution under Section 321
of Code of Criminal Procedure.
 To analyze the scope and objective of Section 321 of CrPC.
 To explain grounds allowed for withdrawal from Prosecution.
 To explain how withdrawal from prosecution is misused in India.
 WITHDRAWAL FROM PROSECUTION: SECTION 321 CRPC

The 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 Court is
necessary. The proviso to the section lays down that consent of the Central Government has to be
obtained before a Public Prosecutor or Assistant Public Prosecutor moves the court for
withdrawal of the case, whenever the offence falls within the categories mentioned in sub-clause
(i) to (iv) of the proviso.

It is important to note here that the section 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 or the Assistant Public
Prosecutor may at any time before the judgement may 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’ then that would have necessarily meant the closure of suit.

SCOPE AND OBJECTIVES OF SECTION 321

Section 321 is an enabling one and vests in the Public Prosecutor and discretion to apply to the
court for its consent to withdraw from the prosecution of any person. The consent, if granted, has
to be followed up by his discharge or acquittal, as the case may be. The Section gives no
indication as to the grounds on which the Public Prosecutor may take the application, or the
considerations on which the Court is to grant its consent. In granting the consent the Court must
exercise a judicial discretion. But it does not follow that the discretion is to be exercised only
with reference to material gathered by judicial method. Section 321 gives a general executive
discretion to the Public Prosecutor to withdraw from the prosecution subject to the consent of the
Court, which may be determined on many possible grounds. The Public Prosecutor though an
executive officer is, in a larger sense, also an officer of the Court and that he is bound to assist
the Court with his fairly considered view and the Court is entitled to have the benefit of the fair
exercise of his function. But the Public Prosecutor, without a careful and proper scrutiny of the
grounds on which the application of the consent is made. Hence where an application for
withdrawal under Section 321, Criminal Procedure Code, is made on the ground of insufficiency
or meagerness of reliable evidence that is available, it is not an improper exercise of discretion
for the Court to grant consent before evidence is taken, if it was reasonably satisfied, otherwise,
that the evidence, if actually taken, is not likely to result in conviction.

Permission for withdrawal of the prosecution cannot be grated mechanically, or simply because
the State has no objection. Withdrawal must be for proper administration of justice and is not to
be allowed mechanically, but only in Public Interest. The Public Prosecutor must apply his mind
and should satisfy himself that it is a fit case for withdrawal of Prosecution. The Public
Prosecutor while applying for withdrawing from prosecution must apply his mind; there must be
an independent application of mind. A Public Prosecutor in a fit case can file an application
under section 321 of the Code of Criminal Procedure for seeking permission of the Court to
withdraw from prosecution. The court while considering the application is not required going
into the merits of the case. All that it has to see is whether the Public Prosecutor before making
the application applied its own independent mind to the material collected at the trial or
otherwise and the grounds cannot be exhaustively laid down as otherwise it would amount to
restricting the sweep and amplitude of section 321 of the Code which gives no indication of the
grounds on which the Public Prosecutor may make an application for withdrawal. However, in a
complaint case prosecuted by the complainant, Public Prosecutor cannot apply for withdrawal
under section 321 of CrPC.

In the case Sheo Nandan Paswan v State of Bihar3, the majority of the Judges identified four
reasons for seeking a withdrawal from prosecution.

a) Lack of possibility of successful prosecution in light of the evidence,

b) Implication of individuals as a consequence of personal and political vendetta,
c) Inexpediency of the prosecution for purposes of Government and public policy, and
d) Negative impacts on the interest of the public that continuation of the prosecution will
introduce in light of the situation.

3
Sheo Nandan Paswan v State of Bihar (1983) 1 SCC 438
 Section 321 of the Criminal Procedure Code allows the Public Prosecutor or Assistant Public
Prosecutor in control of a case to withdraw from prosecution with the Court's permission. The
Public Prosecutor may submit an application for withdrawal at any point between when the
Court takes cognizance of the case and when the Court issues its decision 4. It is important for the
Court to record grounds for his satisfaction with the Public Prosecutor's opinion.

GROUNDS FOR WITHDRAWAL FROM PROSECUTION

The Consideration weighing with the prosecuting authority may be either that it will not be able
to produce sufficient evidence to sustain the charge or subsequent information before it will
falsify the prosecution evidence or other similar circumstance. It is difficult to predicate all
factors, as they are dependent entirely on the facts and circumstances of each case 5. Nonetheless,
it is a duty of the Court to see that the permission is not sought on grounds extraneous to the
interest of justice or that offences which are offences against the State go unpunished merely
because the Government as a matter of general policy or expediency unconnected with its duty to
prosecute offender under the law directs the Public Prosecutor and afterwards the Magistrate
surrendered their discretion, they were held not to have applied their mind.

The Public Prosecutor has to make out some grounds which would show that the prosecution is
sought to be withdrawn because inter alia the prosecution might not be able to produce sufficient
evidence to sustain the charge or that the prosecution does not appear well-founded or that there
are other circumstances which clearly show that the object of administration of justice would not
be advanced or furthered by going on with the prosecution. The ultimate guiding consideration
must be the interest of justice. The Kerala High Court in its full bench decision has held that
though the power to withdraw is an executive function but it should be exercised in the light of
Public Prosecutors own judgement and not at dictation of some other authority, however high.

4
Shvena Nendoor, Withdrawal from Prosecution: A comprehensive Analysis, available at:
https://www.lawyersclubindia.com/articles/withdrawal-from-prosecution-a-comprehensive-analysis-15023.asp (last
visited on 15th November, 2022).
5
Mr. Anuj Trivedi, Withdrawal from Prosecution, available at:
https://articles.manupatra.com/article-details/Withdrawal-from-Prosecution-Section-321-of-the-CRPC (last visited
on 14th November, 2022)
Further the Court held that this power is not an absolute power, it can be exercised only with the
consent of the court. The curb thus placed on the power is to ensure that it is not abused, that is
to say, not exercised for improper reasons or to save improper acts. The Court gives its consent
in the exercise of its judicial discretion and before granting consent, it must be satisfied that the
grounds stated for the withdrawal are proper grounds, grounds which, if true, would make the
withdrawal in furtherance of rather than hindrance to the object of law.

Thus, the court is not to re-appreciate the grounds, which led the Public Prosecutor to request for
consent to withdraw, such observation is to read in context in which it was made which means
that Court is not the appellate authority of Public Prosecutor. The grounds taken by the Public
Prosecutor are to be examined by Court to find out whether they are reasonable. When Court is
satisfied that request is unreasonable or tainted with extraneous consideration or without
application of mind at the dictate of the State Government, it can refuse to give consent. It is duty
of the Public Prosecutor to apply his mind and to be satisfied that the withdrawal of the case is in
Public Interest. When a Public Prosecutor files an application for withdrawal on the basis of
order passed by the Government that does not satisfy the requirements of Section 321.

In the Case of Sheo Nandan Paswan, v. State of Bihar and others 6, the Court opined that
Section 321 providing for withdrawal from prosecution gives no indication as to the grounds on
which the Public Prosecutor may make the application, or the considerations on which the Court
is to grant its consent. The initiative is that of the Public Prosecutor and what the Court has to do
is only to give its consent and not to determine any matter judicially. The judicial function
implicit in the exercise of the judicial discretion for granting the consent would normally mean
that the court has to satisfy itself that the executive function of the Public Prosecutor has not
been improperly exercised, or that it is not an attempt to interfere with the normal course of
justice for illegitimate reasons or purposes. When an application under S. 321 is made, it is not
necessary for the Court to assess the evidence to discover whether the case would end in
conviction or acquittal. The Court's function is to given consent. This section does not obligate
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

6
Supra Note 3.
discretion by considering such materials and on such consideration, either gives consent or
declines consent. The section should not be construed to mean that the Court has to give a
detailed reasoned order when it gives consent. All that is necessary to satisfy the section is to see
that the Public Prosecutor acts in good faith and that the Magistrate is satisfied that the exercise
of discretion by the Public Prosecutor is proper. This will be clear on perusal of some other
provisions in the Code such as Ss. 203, 227, 245, 257 and 258 which relate to the manner in
which Courts have to exercise their jurisdiction in pending cases when applications are made for
their withdrawal or when the Court finds that there is not ground to proceed with the cases and
Sec. 320 which is a kindred section. While Ss. 203, 227, 245, 257 and 255 require the Magistrate
to record his reasons for the order he passed S. 320 contemplates consent by the Court only in a
supervisory manner and not in an adjudicatory manner.

Similarly in Veerathaiah v Ramamswamy Iyyengar, it was held that Section 321 of the Cr PC is
the only section which refers to withdrawal of a Warrant Case and it does not empower a private
party to apply for withdrawal as obviously the policy of the Code is to regard withdrawal of all
warrant cases as the concern of the State. As the effect of the withdrawal of the Public Prosecutor
with the consent of the Court is either discharge or acquittal of the accused, the giving or
withholding consent, is a judicial act and discretion conferred on the court must be exercised
judicially.

In Amar Narain Mathur v State of Rajasthan 7 it was held that the Court is entitled to demand
reasons for withdrawal from the Public Prosecutor. And also, that the giving of consent under
this section by the Court is a judicial act, as it results in either the acquittal or discharge of the
accused. It is the duty of the Court also to see in furtherance of justice that the permission is not
sought on grounds extraneous to the interest of justice or that offences which are offences against
the State go unpunished merely because the Government as a matter of general policy or
expediency unconnected with its duty to prosecute offenders under the law, directs the public
prosecutor to withdraw from the prosecution and the public prosecutor merely does so at the
behest.

7
AIR 1952 Raj 42
Consent for termination of Prosecution

If the position in relation to the criminal case was that the Court was invited by the Union of
India to permit the termination of the prosecution and the Court consented to it and quashed the
criminal case, it could not be said that there was some prohibition in some law for such powers
being exercised under Art. 142 of the Constitution of India. The power under Article 142 are
exercised with the aid of principles of section 321, which enables withdrawal of Prosecution. The
Court has to consider whether the broader cause of public justice will be advanced or retarded by
the withdrawal or continuance of prosecution. The Supreme Court has held that the Public
Prosecutor was bound to receive instructions from the Government and such instructions would
not amount to an extraneous influence.

Whether Pendency of departmental proceeding is a ground for withdrawal

Mere pendency of departmental proceeding against the accused employee is not sufficient
ground for granting permission for withdrawal from prosecution. The power under this provision
should be exercised in the interest of administration of justice, which may be either that it will
not be able to produce sufficient evidence to sustain the charge or that subsequent information
before the prosecuting agency would falsify the prosecution evidence or any other similar
circumstance which it is difficult to predicate as they are dependant entirely on the facts and
circumstances of each case.

In the case of Tek Chand v Tek Chand, Suptd. of Polic 8e, the court has held that a delayed FIR,
weak chances of conviction, inadequate materials are some of the reasons for withdrawal from
prosecution. The prosecution of a case may be withdrawn not merely on the ground of paucity of
evidence, but also in order to further the broad ends of public justice and such broad ends of
public justice may well include appropriate social, economic and political purpose. However, in
Suraj Prasad v State of U.P, it was held that the fact, that the evidence collected by the
investigating agency and brought before the Court along with the charge sheet is insufficient to
warrant conviction is no ground for withdrawal of the Prosecution. It has also been held by the
Supreme Court that in case of two prosecutions against different set of persons in respect of same
8
AIR 1987 SC 349
incident on the same set of evidence, withdrawal of prosecution on respect in respect of one set
of persons necessarily requires withdrawal in respect of other set of persons as well.

WHO CAN FILE AN APPLICATION FOR WITHDRAWAL UNDER SECTION 321

It is only the Public Prosecutor or Assistant Public Prosecutor who is in charge of a particular
case and is actually conducting prosecution that can file an application under this section seeking
permission to withdraw from the Prosecution. Though Assistant Public Prosecutor is in charge of
a case, yet Public Prosecutor can maintain an application for withdrawal from the Prosecution. If
a public prosecutor is not in charge of a particular case and is not conducting the prosecution, he
will not be entitled to ask for withdrawal from Prosecution.

Before an application is made under this section, the Public Prosecutor has to apply his mind to
the facts of the case independently without being subject to any outside influence or instruction
from the Government because unlike a Judge a Public Prosecutor is not an absolutely
independent Officer. Discretion and independent application of mind by the Public Prosecutor is
necessary for allowing withdrawal from prosecution. It would not be sufficient if the Public
Prosecutor merely states that it was not expedient to proceed with the prosecution. He has to
state that the prosecution may not be able to provide sufficient evidence or that the prosecution
does not appear to be well founded or that the administration of justice would not be furthered by
proceeding with it.

For withdrawal of prosecution the decision of the Public Prosecutor must be independent and not
in obedience to the directions of any higher authorities. Where the Public Prosecutor without
applying his mind acted according to the directions of the District Magistrate and moved for
withdrawal of Prosecution, permission was refused. The Public Prosecutor should not act merely
as a rubber stamp for the State Government. Where the withdrawal originates from the
Government, Public Prosecutor without any application of mind/subjective satisfaction applies
for withdrawal, such application shall be set aside.

In the case of V. S. Achuthanandan, v. R. Balakrishna Pillai and others (2011), the Court
opined that where an application for withdrawal of prosecution was filed by public prosecutor
under S.321 of Criminal P. C., the Court should not consider grounds which were not urged by
the public prosecutor or which did not form part of the record because for the purpose of S.321 it
is the opinion of the public prosecutor alone is material and the ground on which he seeks
permission of the Court for withdrawal of the prosecution has alone to be examined, by Court
while granting permission for withdrawal of prosecution.

Also, in Rajendra Kumar Jain v State9 the Court said that the Withdrawal from Prosecution is a
function of the Public Prosecutor and cannot be surrendered, the government may suggest the
Public Prosecutor that he may withdraw but no one can compel the Public Prosecutor to do so,
Public Prosecutor may withdraw from prosecution not merely on ground of paucity of evidence
but on other relevant grounds like furthering the ends of justice, maintenance of public order and
peace. The Court went on to say that the Public Prosecutor is an officer of the Court and is
responsible to the Court; the Court performs a supervisory function in granting its consent to
withdraw and the Court’s duty is not to re appreciate the grounds but to consider whether the
Public Prosecutor applied his mind, as a free agent uninfluenced by irrelevant and extraneous
considerations. The Court has a special duty in this regard as it is ultimate repository of
legislative confidence in granting or withholding its consent to withdrawal from Prosecution.

Stage of withdrawal

The Public Prosecutor may file a petition for withdrawal from prosecution even at the stage of
examination of defence witnesses. The application for withdrawal of the prosecution can be filed
at any time before the delivery of judgement in any case.

In the case of Mohd. Mumtaz, v. Smt. Nandini Satpathy and others10, When a charge was
already framed against the accused on the basis that in the opinion of the Magistrate who framed
the charge there was ground for presuming that the accused had committed the offences charged
the withdrawal from the prosecution could not be permitted on the ground that there was
insufficient or no evidence to sustain the prosecution. In the instant case since the entire record
was before the Appellate Court and the matter had been argued at great length on the basis of the

9
1980 AIR 1510
10
1987 SCR (1) 680
material on record the Court considered whether the charge (of misappropriation of funds) was
rightly framed and came to the conclusion on the basis of the material on record that no charge
could be framed. Accordingly instead of permitting the prosecution to be withdrawn under S.
321 the charge framed was quashed under S. 239 of the Criminal P.C.

Duty of Government

Before instructing the Public Prosecutor, State Government should also consider the question
carefully. Consideration is to be made as per rules of business made by Governor under the
Constitution as well as the Secretariat Instructions 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. Accordingly, Public Prosecutor should be supplied with the entire file so that if
necessary, it can be produced before the Court for its perusal to give consent. If this procedure is
followed chances of favouritism or extraneous political considerations would be curbed to a
great extent. The Government can withdraw any case on larger grounds of Public Policy such as
inexpediency of prosecution for reasons of State; broader Public Interest and adverse effects
which the prosecution will bring on public in changed situation are relevant grounds for
withdrawal of Prosecution.

Opposition by private parties

In respect of application for withdrawal from prosecution by the Public Prosecutor opposition by
private persons cannot be discountenanced on grounds of locus standi. The offences of
corruption and criminal breach of trust, being offences against society, any member of society
who is interested in cleanliness of administration is entitled to oppose application for withdrawal
of prosecution.

In the case of Abdul Karim v State of Karnataka, which relates to the famous Rajkumar
Kidnapping case, in which Veerappan asked for the release of forty-four of his associates in
exchange of Rajkumar. Government of Karnataka accepted some of the demands made by
Veerappan and at the same time took a decision of directing the Public Prosecutor to withdraw
from the case. The Public Prosecutor moved an application for withdrawal from prosecution for
offences under TADA, so that the accused may be released on bail and it would result in security
and peace in the State. Trial Court permitted the withdrawal on these grounds. Abdul Karim,
father of BSF personnel, who was killed by Veerappan, came in appeal before the Supreme
Court. The Hon’ble Supreme Court opined that a serious discrepancy has occurred as the Public
Prosecutor was directed by the State Government, who without verifying himself about real
object, moved the application and THUS has abducted his powers to the State Government and
also that the Trial Court, despite so many guidelines, erred in permitting the withdrawal.

PUBLIC PROSECUTOR TO ACT INDEPENDENTLY WITH THE APPLICATION OF

HIS MIND WITH REFERENCE TO M/S V.L.S. FINANCE LTD. VS. S.P. GUPTA AND
ANR

The Supreme Court, in this case has held that while filing an application u/s 321 of CrPC, the
Public Prosecutor is required to apply his own mind and the effect thereof on the society in the
event such permission is granted. The Public Prosecutor is required to act in good faith, peruse
the materials on record and form an independent opinion that the withdrawal from the
prosecution would really sub serve the public interest at large. He is not supposed to act as a post
office and he is expected to remember his duty to the Court as well as his duty to the collective.

The issues that came up for consideration before the Supreme Court was as to

a) Whether the Assistant Public Prosecutor is entitled under law to file an application for
withdrawal of the application for withdrawal of the application preferred under Section
321 of the Code of Criminal Procedure (Cr.P.C.) and not to press an application for
withdrawal,

b) Whether the Magistrate is disabled in law or lacks jurisdiction to allow the prosecution
from preferring the application for withdrawal,

c) Whether the accused has any say at that stage of the proceeding and
 d) Whether in the obtaining factual matrix this Court should decline to deal with the order
passed by the learned Magistrate in exercise of jurisdiction under Article 136 of the
Constitution of India.

Section 321 of the Cr.P.C. provides for withdrawal from prosecution which enables the Public
Prosecutor, in charge of the case to withdraw from the prosecution of any person at any time
before the judgment is pronounced. The application for withdrawal though has to get the consent
of the court and if the court gives consent for such withdrawal the accused will be discharged if
no charge has been framed or acquitted if charge has been framed or where no such charge is
required to be framed. It clothes the Public Prosecutor to withdraw from the prosecution of any
person, accused of an offence, both, when no evidence is taken or even if entire evidence has
been taken. The outer limit for the exercise of this power is ‘at any time before the judgment is
pronounced’. The judicial function implicit in the exercise of the judicial discretion for granting
the consent would normally mean that the court has to satisfy itself that the executive function of
the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere
with the normal course of justice for illegitimate reasons or purposes.

The Public Prosecutor in terms of the statutory scheme laid down under the Cr.P.C. plays an
important role. He is supposed to be an independent person. While filing such an application, the
Public Prosecutor also is required to apply his own mind and the effect thereof on the society in
the event such permission is granted. The Public Prosecutor is required to act in good faith,
peruse the materials on record and form an independent opinion that the withdrawal from the
prosecution would really subserve the public interest at large. He is not supposed to act as a post
office and he is expected to remember his duty to the Court as well as his duty to the collective.
In the impugned order, it was observed that no doubt the withdrawal from prosecution is an
executive and non-judicial act but there is a wide discretion with the court, which ought to be
exercised judicially on well-established principles, i.e., the court has to be satisfied that the
executive function of the Public Prosecutor has not been improperly exercised or that it is not an
attempt to interfere with the course of justice for illegitimate purposes. It is within these
parameters, the judicial discretion is to be exercised. Thereafter, it was opined that it is the duty
of the Public Prosecutor to apply his mind as a free agent uninfluenced by irrelevant or
extraneous instructions. The High Court had ruled that the Public Prosecutor has shirked the
bounden responsibility by abruptly applying withdrawing the application under Section 321
Cr.P.C. after a few days, particularly when in the application under Section 321 Cr.P.C., Public
Prosecutor had asserted in no uncertain terms that a commercial transaction in between the
parties was sought to be given a criminal colour and there was no likelihood of conviction on the
basis of charge-sheet filed for the offence of criminal misappropriation, etc. In the case at hand,
the learned Magistrate was directed by the High Court to consider the application filed by the
Assistant Public Prosecutor seeking withdrawal of the application earlier preferred under Section
321 Cr.P.C. High Court was held to be incorrect in directing the accused persons to file an
application Section 91 Cr.P.C.

When an application of withdrawal from the prosecution under Section 321 Cr.P.C. is filed by
the Public Prosecutor, he has the sole responsibility and the law casts an obligation that he
should be satisfied on the basis of materials on record keeping in view certain legal parameters.
The Public Prosecutor having been satisfied, as the application would show, had filed the
application. The said application was not taken up for hearing. The learned Magistrate had not
passed any order granting consent for withdrawal, as he could not have without hearing the
Assistant Public Prosecutor. At this juncture, the authority decided that the Assistant Public
Prosecutor should withdraw the application and not press the same. After such a decision had
been taken, as the application would show, the Assistant Public Prosecutor re-appreciated the
facts, applied his mind to the totality of facts and filed the application for not pressing the
application preferred earlier under Section 321 Cr.P.C. The filing of application not to press the
application could not be compared with any kind of review of an order passed by the court. The
filing of the application for seeking withdrawal from prosecution and application not to press the
application earlier filed are both within the domain of Public Prosecutor. He has to be satisfied.

In the present case, the Public Prosecutor had not moved the application under Section 321
Cr.P.C. but only filed. He could have orally prayed before the court that he did not intend to
press the application. The court could not have compelled him to assist it for obtaining consent.
The court has a role when the Public Prosecutor moves the application seeking the consent for
withdrawing from the prosecution. At that stage, the court is required to see whether there has
been independent application of mind by the Public Prosecutor and whether other ingredients are
satisfied to grant the consent. Prior to the application being taken up being moved by the Public
Prosecutor, the court has no role. If the Public Prosecutor intends to withdraw or not press the
application, he is entitled to do so. The court cannot say that the Public Prosecutor has no legal
authority to file the application for not pressing the earlier application. Further, the accused
persons cannot be allowed to contest such an application. If anyone is aggrieved in such a
situation, it is the victim, for the case instituted against the accused persons on his FIR is sought
to be withdrawn. The accused persons have no role and, therefore, the High Court could not have
quashed the orders permitting the prosecution to withdraw the application and granting such
liberty to the accused persons. The principle stating that the Public Prosecutor should apply his
mind and take an independent decision about filing an application under Section 321 Cr.P.C.
cannot be faulted but stretching the said principle to say that he is to convince the court that he
has filed an application for not pressing the earlier application would not be appropriate.

HOW WITHDRAWAL FROM PROSECUTION IS MISUSED IN INDIA

Sometimes the State agencies or the State itself fail to perform their role diligently and honestly
without being influenced by any outside extraneous reasons. The attempt of withdrawal of
criminal cases, by state government is due to the State using its unfettered powers to ask its
agencies to withdraw criminal cases pending against its political followers. The provision
granting this power to state flows from section 321 of Criminal Procedure Code 1973 with the
only rider that the court had to pass order upon an application to withdraw a case pending before
it.

Section 321 of CrPC 1973, deals with the power of Public Prosecutor/Assistant Public
Prosecutor to withdraw case of which he is in-charge after obtaining written permission from the
state government and that permission is required to be filed in Court. The power of withdrawal
can be invoked by the Public Prosecutor/Assistant Public Prosecutor, in the interest of public
policy and justice and not to frustrate or throttle the process of law.
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 case11, 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:

a) 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?
b) 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?
c) Whether the prosecution of offence relating to Central Act be withdrawn without taking
permission from the Central Government?
d) 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:

a) 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.
a) 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
11
2013 (11) ADJ 22.
 waging of war against the country, special and specific reason has to be assigned keeping
in view the discussion, made in the body of judgment.
b) 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.
c) 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 was constituted to consider the powers of government exercisable
under section 321 of Cr. P. C., the full bench (Cri Misc. Writ Petition no. 10861/2015. Ram
Narayan Yadav vs State of UP and others) was supposed to consider following three questions;

a) 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?
b) 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?
c) 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?

This full bench replied the above referred questions in the following terms in its judgment dated
20th February 2017;
 a) 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.
b) 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.
c) 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.

CONCLUSION

All that is necessary to satisfy the section is to see that the Public Prosecutor acts in good faith
and that the Magistrate is satisfied that the exercise of discretion by the Public Prosecutor is
proper. While considering the matter, the court’s duty is not to re appreciate the grounds which
led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the
Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous
considerations. The judgement of the Public Prosecutor under this section cannot be lightly
interfered with, unless the Court comes to the conclusion that he has not applied his mind or that
his decision is not bona fide. The Public Prosecutor shall act on his own volition to withdraw the
case and he is not bound by the instructions from his Superior Authority. It shall be duty of the
Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the
reasons, which prompted the Public Prosecutor to withdraw from the Prosecution.
 BIBLIOGRAPHY

1. Withdrawal from Prosecution under Section 321 CrPc, available at:

https://www.ourlegalworld.com/withdrawal-from-prosecution-under-section-321-crpc-
ourlegalworld/

2. Taking back Justice: A Critical Appraisal of Section 321 of the Criminal Procedure Code,
available at: https://criminallawstudiesnluj.wordpress.com/2022/01/07/taking-back-
justice-a-critical-appraisal-of-section-321-of-the-criminal-procedure-code/

3. Public Prosecutor when asking for withdrawal of prosecution U/s 321 of CrPC to act
independently with application of mind, available at: https://www.tclindia.in/public-
prosecutor-when-asking-for-withdrawal-of-prosecution-u-s-321-of-crpc-to-act-
independently-with-application-of-mind-indianlaws/.

4. Shvena Nendoor, Withdrawal from Prosecution: A comprehensive Analysis, available at:

https://www.lawyersclubindia.com/articles/withdrawal-from-prosecution-a-
comprehensive-analysis-15023.asp

5. Mr. Anuj Trivedi, Withdrawal from Prosecution, available at:

https://articles.manupatra.com/article-details/Withdrawal-from-Prosecution-Section-321-
of-the-CRPC

Cases Referred:

1. Sheo Nandan Paswan v State of Bihar

2. Veerathaiah v Ramamswamy Iyyengar

3. Amar Narain Mathur v State of Rajasthan

4. Tek Chand v Tek Chand, Suptd. of Police

5. V. S. Achuthanandan, v. R. Balakrishna Pillai and others

6. Mohd. Mumtaz, v. Smt. Nandini Satpathy and others

7. M/S V.L.S. Finance Ltd. Vs. S.P. Gupta And Anr

8. Abdul Karim v State of Karnataka