WITHDRAWAL FROM PROSECUTION

CRIMINAL PROCEDURE CODE

Submitted By-

Harshvardhan

SM0117040

2nd Year, 4th Semester

Faculty In Charge

Dr. Amol Deo Chavhan

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

GUWAHATI

2nd May, 2022

 TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................... 2

TABLE OF CASES ................................................................................................................... 3

TABLE OF STATUTES............................................................................................................ 3

INTRODUCTION ..................................................................................................................... 3

RESEARCH QUESTIONS .................................................................................................... 4

LITERATURE REVIEW ....................................................................................................... 5

SCOPE AND OBJECTIVES ................................................................................................. 5

RESEARCH METHODOLOGY ........................................................................................... 6

WITHDRAWAL FROM PROSECUTION- SECTION 321 OF CRIMINAL PROCEDURE

CODE......................................................................................................................................... 7

ROLE OF PROSECUTOR ........................................................................................................ 9

CONCLUSION ........................................................................................................................ 12
 TABLE OF CASES

1. Sheo Nandan Paswan vs. State of Bihar and others (1983) 1 SCC 438.

2. Subhash Chandra v. Chandigarh Administration (1980) 2SCC 155.

3. Abdul Karim and others vs. State of Karnataka (2000) 8 SCC 710.

4. Rajender Kumar v. State through Special Police Establishment (1980) 3SCC 435.

5. Dy. Accountant General AIR 1970 Ker 158.

6. S.K Shukla v. State of U.P AIR 2006 SC 413.

7. Rahul Agarwal v. Rakesh Jain AIR 2005 SC 910.

8. Balwant Singh v State of Bihar AIR 977 SC 2265.

9. State of Orissa v. Chandrika Mohapatra (1976 4 SCC 527).

10. Rajendra Jain v. State (1980) 3 SCC 434.

TABLE OF STATUTES
1973- Criminal Procedure Code

CHAPTER I
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
3211, Cr.P.C. corresponds to section 494 of the Old Code except that a proviso has been
newly added. The proviso lays down that consent of the Central Government should be
obtained before a Public Prosecutor moves the Court for the withdrawal from prosecution,
whenever the offence relates to a matter to which the executive power of the Union extends
or was investigated by the Special Police Establishment or involves misappropriation,
destruction or damage to Central Government property or is committed by a Central
Government Servant. The object of Section 321, Cr.P.C. appears to reserve power with the
executive Government to withdraw any criminal case on longer grounds of public policy such
as inexpediency of prosecutions for reasons of State, broader public interest like maintenance
of law and order, maintenance of public peace and harmony, changed social, economic and
political situation. It is important to observe that Section 321 Cr.P.C. uses the phrase
‘withdrawal from prosecution’ and not ‘withdrawal of prosecution’ the effect being that
when prosecution instituted for one or more offences against one or more persons, the
Public Prosecutor may at any time before the judgement, file an application to
withdraw from Prosecution. i.e. withdrawal of one or more offences against one or all
persons. If the phrase used was ‘withdrawal of Prosecution’ that would have necessarily
meant the closure of case.

CHAPTER – 1.1
RESEARCH QUESTIONS
Q1. What is the scope of Section 321 of Criminal Procedure of India?

Q2. What is the duty of the government and the prosecution in this case?

1
321. 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 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.
Q3. What is the stage at which prosecution can be withdrawn?

CHAPTER – 1.2

LITERATURE REVIEW
1. Ratanlal & Dhirajlal 2 in his book vividly discussed Sec 321 of the Criminal
Procedure Code, 1973, This classic work provides an interesting and lucid study of
the fundamental principles involved in withdrawal of prosecution. The topic-wise
treatment of the subject along with references to academic writings and the judicial
decisions makes the study of criminal procedure meaningful and comprehensible. The
author has incorporated all recent developments in the field of criminal procedure
since the publication of the last edition in 2001. Latest case law has been
incorporated, several amendments made in the Code and the important decisions of
the Supreme Court and the High Courts have all been considered and discussed at the
appropriate places in the book. The author has also drawn attention to some ticklish
aspects of the Code with a view to generating new thinking in the light of new
developments so that the criminal procedure law may grow in tune with the times.
2. Pillai3 in his book categorically discuses Sec 321 of the Criminal Procedure Code,
1973. It briefly discusses the role of the prosecutor and the state in withdrawing the
cases. Unlike the traditional treatise in criminal law, the unique feature of the book is
that it explores the untouched arena in criminal jurisprudence dealing with nature and
concept of search and seizure proceedings under the Code of Criminal Procedure. The
latest innovations through judicial and administrative techniques of creativity have
been well projected in the book wherein the judiciary has played an innovative and
pivotal role in evolving new concept of criminal jurisprudence.

CHAPTER – 1.3

SCOPE AND OBJECTIVES

SCOPE: This project aims to analyse Sec. 321 of the Criminal Procedure Code, which

pertains with the withdrawal of prosecution. The research paper would be analysing the role

of prosecutor, state and third person intervention in withdrawal process.

2
Ratanlal and Dhirajlal, The code of Criminal Procedure, 19 th Edition, 2011, Lexis Nexis Butterworths
Wadhwa, Nagpur.
3
K. N. Pillai, CRIMINAL PROCEDURE, 5th edition. 2008, Eastern Book Company.
OBJECTIVES:

The objectives of this project are as follow:

1) To study Section 321 of the Criminal Procedure Code, 1973 (Herinafter will be

referred as Cr.P.C);

2) To study the role of Prosecutor; and

3) To study the role of state government in the process of withdrawal.

CHAPTER – 1.4
RESEARCH METHODOLOGY
In this project, doctrinal research was involved. Doctrinal Research is research in which
secondary sources are used and materials are collected from libraries, archives, etc. Books,
journals, articles were used while making this project. Explanatory type of research was used
in this project. Secondary source of data collection was used which involves collection of
data from books, articles, websites, etc.

The researcher has used the BLUEBOOK (20th ed.) format for citation.
 CHAPTER – 2

WITHDRAWAL FROM PROSECUTION- SECTION 321 OF CRIMINAL

PROCEDURE CODE

SCOPE, APPLICABILITY AND GROUNDS: Section 321 of the Code gives a general executive
discretion to the Public Prosecutor or the Assistant Public Prosecutor to withdraw from the
prosecution, subject to the consent of the Court. The consent, if granted, has to be followed
up by discharge or acquittal of the accused as the case may be. If withdrawal is made before a
charge had been framed, the accused shall be discharged in respect of such offence or
offences and if such withdrawal is made after a charge has been framed, or when under the
Code no charge is required, the accused shall be acquitted in respect of such offence. But this
Section gives no indication as to the grounds on which the Public Prosecutor may move the
application or the consideration on which the Court is to grant its consent. In granting consent
the Court must exercise judicial discretion. In the case Sheo Nandan Paswan vs. State of
Bihar and others4 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 under section 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 cannot 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 cannot 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,

4
Sheo Nandan Paswan vs. State of Bihar and others (1983) 1 SCC 438.
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.

In the case of Subhash Chandra v. Chandigarh Administration 5it 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 vs. State of Karnataka 6, that an application
under Section 321 Cr.P.C. could not be allowed only on the ground that the State
Government had taken a decision for withdrawing the prosecution and such an order could
only be passed after examining the facts and circumstances of the case. What the Court has
to see is whether the application is made in good faith, in the interest of public policy
and justice and not to thwart or stifle the process of law. The Court, after considering the
facts of the case, has to see whether the application suffers from such improprieties or
illegalities as would cause manifest injustice, if consent was given. In the case of Rajender
Kumar v. State through Special Police Establishment7, 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.”

5
Subhash Chandra v. Chandigarh Administration (1980) 2SCC 155.
6
Abdul Karim and others vs. State of Karnataka (2000) 8 SCC 710.
7
Rajender Kumar v. State through Special Police Establishment (1980) 3SCC 435.
 CHAPTER-3

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

Who can withdraw prosecution: Section 321, Cr.P.C. enables the Public Prosecutor or the
Assistant Public Prosecutor in charge of a case to withdraw from the prosecution with the
consent of the Court. After State amendment of the State of Uttar Pradesh written permission
of the State Government to that effect is necessary for the Public Prosecutor or the Assistant
Public Prosecutor as the case may be, before an application for withdrawal is made in the
State of Uttar Pradesh and Uttarakhand. It is also necessary that the permission of the State
Government shall be filed in the Court. When the case was being conducted by a Special
Public Prosecutor and subsequently another Special Public Prosecutor was appointed to
conduct the case without cancelling the engagement of the earlier appointed Special Public
Prosecutor, in the case of Sheo Nandan Paswan8, 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. The statutory responsibility for
deciding upon withdrawal squarely rests on the public prosecutor. The power to withdraw
though an executive power should be exercised in the light of prosecutor’s own judgment and
not at the dictation of some higher authority.9 However high Though the Government may
have ordered the Prosecutor to withdraw from prosecution, it is for the Prosecutor to apply
his mind independently. Sec. 321 contemplates consent by court in a supervisory and not an
adjudicatory manner. It is not necessary for the court to assess the evidence to discover
whether the case would end in conviction or acquittal. What it has to see is whether the
Prosecutor had applied his mind in good faith after considering all material of case and
application is made in public interest and justice and not to thwart and stifle the process of
law. The Governments have to consider and balance between maintenance of law and order
and anarchy. If Government yield to the pressure tactics of those who are to terrorise and

8
Supra note 4.
9
Dy. Accountant General AIR 1970 Ker 158.
overawe the elected government, people may lose faith in the democratic process, when they
see public authorities flouted and the helplessness of the government 10. In Abdul Karim's
case, the film star Rajkumar was abducted by Veerappan and his associates; consequent
thereupon, the Karnataka Government had yielded to the demand, of Veerappan and had
issued notifications that it would withdraw all cases against Veerappan and his associates.
The public prosecutor sought withdrawal from prosecution the charges under TADA in order
to restore normalcy in the border area and among the people living in such area and to
maintain peace among the public in general and inhabitants of a particular village and also on
the ground that such withdrawal from prosecution was necessary in the larger interest of the
State and in order to avoid any unpleasant situation in the border area. The application did not
state why the public prosecutor apprehended a disturbance of the peace and normalcy of the
“border area” or “the particular village”, nor was any material in this behalf or summary
thereof, set out. The petition for withdrawal of cases, however, was allowed by the designated
Court, Mysore. Aggrieved by the decision of the court, the appellant Abdul Karim, father of a
police officer who had allegedly be killed by Veerappan in an encounter, moved the Apex
Court for cancellation of the order of the withdrawal on the ground that the state govt. of
Karnataka had yielded to the demand to the illegal demands of Veerapan and no cogent
reasons have to be given for the decision to drop the TADA and other cases. The Apex Court
held that there was no basis laid in the application upon which the court could decide that the
public prosecutor has applied his mind to the relevant material. Applications under Sec. 321
seeking consent of court to withdraw TADA charges were filed to facilitate ultimately the
release of accused persons from judicial custody so as to meet Veerappan’s demand. In other
words, withdrawal from prosecution on the ground that the application has been filed on the
basis of Government order does not meet the requirements of 321 and is bad in law. In
withdrawal from prosecution the Public Prosecutor cannot act on the dictates of State
Government. He has to act objectively as he is also an officer of the court. Besides, the coats
are also free to assess whether prima facie is made or not11.

The power of withdrawal is not meant to be used in ordinary criminal cases with focus on the
interest of the individual involved 12 . There have been instances where the court refused
consent as withdrawal might have affected public confidence in the criminal justice system13

10
AIR 2001 SC 116.
11
S.K Shukla v. State of U.P, AIR 2006 SC 413.; Rahul Agarwal v. Rakesh Jain, AIR 2005 SC 910.
12
Balwant Singh v State of Bihar AIR 977 SC 2265.
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. State14 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 trial 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.
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 Bihar15, 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.

13
State of Orissa v. Chandrika Mohapatra (1976 4 SCC 527)
14
Rajendra Jain v. State (1980) 3 SCC 434.
15
Sheo Nandan Paswan v. State of Bihar (1987) 1 SCC 288.
 CHAPTER-4

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

Ratanlal and Dhirajlal, THE CODE OF CRIMINAL PROCEDURE, 19th Edition, 2011, Lexis

Nexis Butterworths Wadhwa, Nagpur.

K. N. Pillai, CRIMINAL PROCEDURE, 5th edition. 2008, Eastern Book Company.

Ashok. K Jain, GUIDE ON JUDICIAL SERVICES, 24th Edition, Ascent Publications.