Withdrawal From Prosecution Under Section 321 CRPC - OurLegalWorld

6/8/22, 4:16 PM Withdrawal From Prosecution Under Section 321 CrPc- OurLegalWorld
Withdrawal From
Prosecution Under
Section 321 CrPc-
OurLegalWorld
Withdrawal from Prosecution in Criminal Case
Under Section 321 CrPC
Written by Advocate Ashish Panday (Delhi High

Court)
“We must always remember that procedural law

is not to be a tyrant but a servant, not an
obstruction but an aid to justice. It has been
wisely observed that procedural prescriptions
are the handmaid and not the mistress, a
lubricant not a resistant in the administration
of justice”
Justice Krishna Iyer
INTRODUCTION
In the criminal justice system, an offence done by a
person is never against any particular individual or
victim but against the whole society (state). Therefore,
the state itself is a party in Criminal matters. The
prosecution of criminal cases is conducted by the
Public Prosecutor on behalf of the State. In Indian
Criminal Justice System there is various law that
provides a procedural aspect of a criminal trial, the
CrPC is one and most important of them. The present
article is aimed to analyse the prosecution system
with respect to Withdrawal from prosecution.
read://https_www.ourlegalworld.com/?url=https%3A%2F%2Fwww.ourlegalworld.com%2Fwithdrawal-from-prosecution-under-section-321-crpc-o… 1/15
The article tries to identify the scope and limitations

of criminal procedural law doctrine viz. the
Withdrawal from Prosecution.
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”[1] This power is vested to the Crown
Prosecutor.[2]
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 prosecution.[3]
This research article examines the Indian

scenario regarding the said withdrawal from
prosecution and its application.
CRIMINAL JUSTICE SYSTEM
In the Indian Criminal Justice system, we

have four important institutions, which dealt with
criminal acts, Investigating Agency (e.g State Police),
the Judiciary, the Prosecution Wing and the Prison.
The police wing is established by the state under the
Indian Police Act[4] and in addition to the State
Police, many other central government investigating
agencies are investigating criminal matters,
including the CBI [Delhi Special Establishment Act,
1946], NIA, Enforcement Directorate etc. These cases
are investigated within jurisdictions and prosecuted
in the courts of law.
The criminal cases were instituted by the

investigating agency followed the procedure
mentioned under the CrPC or any other special or
local laws and adjudicated by the Courts. We have a
hierarchical judicial system[5] which is provided by

section 6 Criminal Procedure Code, 1973. At the level
is the Court of Judicial Magistrates/Metropolitan
Magistrate, at the district level, there is the Court of
District and Sessions. The highest court in a state is
the High Court, at is an appellate court and hears
appeals against the orders of conviction or acquittal
passed by the subordinate courts. At the apex, is the
Supreme Court of India.”
In the Criminal Justice System, the state

has a duty to prosecute the accused in the courts of
law. The state governments or central government-
appointed public prosecutors or Assistant
Public/Special Prosecutors to prosecute cases in the
Court of Law.
The fourth pillar in the Criminal justice system is

Prisons and Correctional Services. Both services are
under the control of the state governments, they
govern by the Prisons Act or manual.
[6]
“The apex court in R Sarala v. TS Velu held that the
prosecution and the investigation after CrPC, 1973
become the two separate wings in the Indian criminal
justice system a, wherein the role of a prosecutor
starts after completion of the investigation, and not
during the investigation. Otherwise, the principles for
a fair trial, equity and justice will be compromised
and every proceeding where the prosecutor acts on
behalf of the Police or executive will be jeopardized.”
Constitution and Structure of the Prosecution
Through the Code of Criminal Procedure, 1973, the

prosecution was brought under a separate agency
and detached from the police department. The
position of Prosecutor is very important in the
criminal justice system for a free trial. The prosecutor
is represent the state but he is an officer of the court

and assists the Court to find the truth and serving
justice not only to the victim but also to the accused
which right granted under Article 21 of the Indian
Constitution.
The 154th Report[7] of Law Commission of India on

‘Code of Criminal Procedure, 1973’ and the apex court
[8]
quoted in Babu v. the State of Kerala to the
following effect:
“Public Prosecutors are really Ministers of Justice

whose job is none other than assisting the State in the
administration of justice. They are not
representatives of any party. Their job is to assist the
Court by placing before the Court all relevant aspects
of the case. They are not there to see the innocent sent
to the gallows; they are also not there to see the
culprits escape conviction.”
Whether the Public Prosecutor is an independent

person or under executive Control?
According to the 197th report[9] on the appointment

of Public Prosecutors and independent from the
executive and other external influences, also
independent of the police and the investigation
process. He cannot advise the police in matters
relating to the investigation. He is independent of
Executive interference. He is independent of the Court
but has duties to the Court. He is in charge of the trial,
appeal and other processes in Court. He is, in fact, a
limb of the judicial process, an officer of Court and a
minister of justice assisting the Court. He has duties
not only to the State and to the public to bring
criminals to justice according to the rule of law but
also duties to the accused so that innocent persons are
not convicted.
The Prosecution Department is separated after the

new criminal procedure. Previously the prosecution is
under the state police department, now the
prosecution is under the home department of the
State.
The Public Prosecutors can be appointed by the

Central or State government in the various court
under Section 24[10] and Assistant Public Prosecutors
are appointed under section 25 of the code. The
criminal amendment 2005 introduce the concept of the
Directorate of Prosecution under section 25A which
may establish by the state government.
Provision of Withdrawal from Prosecution in

Indian law
In general, justice demands that every case should
normally be allowed to take its usual course. and
should not be interrupted en route but the doctrine of
Withdrawal from Prosecution is the exception to this
rule. The expression of Withdrawal from Prosecution
have found in Section 321 of the Code of Criminal
Procedure, 1973, read as [11]–
The Public Prosecutor or Assistant Public

Prosecutor can only with the consent of the
court withdraw the prosecution of any person
At any time but before the pronouncement of
judgement withdraw the prosecution
If the withdrawal takes place before framing
of the charges, the accused can only be
discharged,
But if the withdrawal takes place after the
framing of charges, the accused would be
entitled to acquittal.
The provision of Section 321 is said the previous

approval of the central Government is also required if
the offence (i) was against the Union extent (ii) the
investigation was done by the CBI under the Delhi
Special Police Establishment Act, 1946 (iii) if the
offence was committed by the person who is in central
government service[12].
Scope, applicability and grounds:
The statutory responsibility for deciding

upon withdrawal from Prosecution is with Public
Prosecutor or Assistant Public Prosecutor, there is no
role of government. But the application of the above-
said doctrine is very different from a literal reading of
the section, the government has executive control over
the Prosecution department, therefore inherently has
major say.
Section 24 and 25 of the act deal with the

PP and APP, they are appointed by the State
Government or Central Government and have a
fiduciary relationship between them.[13] However, S.
321 doesn’t mention the role of government but it is
only the duty of the Public Prosecutor to inform the
court and the subject to court to apprise itself of the
reasoning which prompts the withdrawal.[14]
The state government cabinet time to time

recommends that the prosecution department
withdraw certain cases in court. These
recommendations stated that the withdrawal of the
case is necessary and is in the interest of public
justice.
Though the statute does not provide guidelines regard

to the application of withdrawal, patently the door
opens to misuse of the section by the Political Parties.
However, the reasons for withdrawal generally can be

divided into two categories;-
Judicial Reason
The judicial reason is the most

recognised reason behind the withdrawal from
prosecution. The prosecutor submits an application
sitting the judicial ground such as insufficient
evidence, falsifying the prosecution evidence, false
and frivolous allegations etc..
Non-Judicial Reason
The non-judicial reason while filing an application

under section 321, is not a merit of the case but it’s
resulting in communal feuds, political class etc. This
reason is often linked with the political motive.[15]
The apex court in Bairam Muralidhar’s said that:-
1. The Public Prosecutor is appointed by the

executive
2. The PP/APP is an officer of the court and he
has bound the help the court in the
administration of justice.
3. In the Indian Criminal Justice System, the
prosecution played a very important
responsibility.
4. The PP/APP has an obligation to state what
material he relied on, and he moved the
application under section 321 to seek the
withdrawal.
The public prosecutor cannot act just like the post

office on behalf of the executive. He is required to act
in good faith, peruse the materials on record and form
an independent opinion that the withdrawal of the
case would really subserve the public interest at large.
The power under said section can only be exercised by

the prosecutor only with the consent of the Court[16].
The Court have to follow certain guidelines which
lead by the apex court. Thus are:-
1. The court is required to exercise judicial

discretion properly, not mechanically[17].
2. The Court is required to properly consider the
material on record and whether the
application is filed in good faith and is in the
interest of Public Justice.
3. Once the court approved the application
Withdrawn from prosecution u/s 321 CrPC is only

permissible in the public interest and cannot be done
for political considerations. The application must be
made in good faith, in the interest of public policy
and justice and not the misuse of the process of law
by the executive. The check and balance is an
essential ingredient always there in any discretionary
power to any person or authority.
Withdrawal by the complainant
In a trial of a summons case on a private complaint

under section 190 of the Criminal Procedure Code if
the complainant at any time before pronouncement of
order after satisfying the magistrate that there are
sufficient grounds for permitting him to withdraw his
complaint against the accused, then the magistrate
may allow a complainant to withdraw the complaint,
and shall thereupon acquit the accused. (Sec.257
Cr.P.C)).
Locus Standi
Locus Standi means the legal capacity to

approach courts. In the court in recent times, the rule
of locus standi was interpreted liberally.
Section 321 is also silent on the locus of the victim,

complainant or any other person to oppose the
application of withdrawal from prosecution filed by a
public prosecutor, in Subhash Chander v State[18].
In the case of Sheo Nandan Paswan v. the State of

Bihar, the Supreme Court held that citizens can lodge
an FIR or registered a complaint and set the
machinery of Criminal law in motion, society has
locus standi to oppose withdraw. Therefore any
person from the society can oppose the application
for withdrawal from prosecution.
Public Prosecutor is bound by the state government

recommendation on withdrawal of the case, if he does
not agree with the proposal, he has to resign, or
government will appoint the Special Public
Prosecutor of that recommendation.
[19]
In Poonamchand Jain v. the State of MP , MP High
Court had ruled that the appointment of SPPs under
CrPC and also held that such appointment against the
basic principle of CrPC, the government must
objectively assess the facts and circumstances and
ascribe reasons for such appointment. The court
further said that the serious nature of the crime or the
pressure from media is not special grounds that
warrant the appointment of an SPP.
In apex court in Ashutosh Kumar Misra[20] “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.”
Withdrawal of criminal cases against

Ministers, MP, MLAs
The prosecution department has to discharge their
duty according to the law of the land and bring out
the maximum conviction. However, the various
governments used section 321 CrPC, to withdraw the
case against the ministers and own political leaders
without giving any legitimate reasons. In Criminal
jurisprudence, the concept of a fair trial entails
balancing the interest of the accused, the Victim, and
the society with the help Pooja Pal v. Union of
India[21]
The prosecution department of the state gets

instruction from the cabinet of the Government, to
make an application to Withdrawal from the
Prosecution. Recently, Karnataka High Court and
Allahabad High Court criticised the public prosecutor
on their act.
Violation of Article 14
Indian Constitution prohibited any type

of discrimination and provide equality before the law.
The withdrawal from the Prosecution of the MP, MLAs
etc is violative of Article 14 of the Constitution, where
the common people face rigorous criminal trials for
minor offences. But government misuse the provision,
[22]
the apex court in Rahul Agrawal v. Rajesh Jain the
application under section 321 only allowed when
valid reasons are made out and interest in the justice.
MISUSE OF PROSECUTOR’S POWER
Section 321 of CrPC doesn’t mention any conditions

and guidelines for Withdrawal from Prosecution, but
it provides discretionary power to Public
Prosecution/Assistant Public Prosecutor to file an
read://https_www.ourlegalworld.com/?url=https%3A%2F%2Fwww.ourlegalworld.com%2Fwithdrawal-from-prosecution-under-section-321-crpc-… 10/15
application under said section with the consent of the

Court. So, executive control over Prosecution that
resulting in gross misuse by the state government or
central government.
Recently, the Apex Court in State of Kerala Vs. K.

Ajith,[23] lead down certain guidelines – “The
principles which emerge from the decisions of this
Court on the withdrawal of a prosecution under
Section 321 of the CrPC can now be formulated:”[24]
(i) The withdraw from prosecution by the public

prosecutor but the consent of the court is required for
a withdrawal of the prosecution;
(ii) The public prosecutor can not only file an

application under section 321 on the ground of
paucity of evidence but also further the broad ends of
public justice;
(iii) The public prosecutor must apply an

independent mind before seeking the consent of the
court to withdraw from the prosecution;
(iv) “While the mere fact that the initiative has come
from the government will not vitiate an application
for withdrawal, the court must make an effort to elicit
the reasons for withdrawal so as to ensure that the
public prosecutor was satisfied that the withdrawal of
the prosecution is necessary for good and relevant
reasons;”[25]
(v) The court while deciding whether to grant its

consent to an application, the court must have
exercised a judicial function but it has been described
to be supervisory in nature. Before deciding whether
to grant its consent the court must be satisfied that:
(a) The function of the public prosecutor should not

interfere with the normal course of justice for
illegitimate reasons or purposes;
(b) The Withdrawal of case have must be in good faith,

in the interest of public policy and justice, and not to
thwart or stifle the process of law;
(c) The application does not suffer from such

improprieties or illegalities as would cause manifest
injustice if consent were to be given;
(d) The permission for withdrawal from prosecution

should not be sought with an ulterior purpose
unconnected with the vindication of the law which
the public prosecutor is duty-bound to maintain;
(vi) While determining the application, the

prosecution sub-serves the administration of justice,
the court would be justified in scrutinizing the nature
and gravity of the offence and its impact upon public
life especially where matters involving public funds
and the discharge of a public trust are implicated;
[26]
In Ashwini Kumar Upadhyay Vs Union of India ,
the three judges of the apex court laid down certain
guidelines for withdrawal from Prosecution for sitting
or former MLAs, MPs, Ministers, in the guidelines
court bars withdrawal without consent of High Court.
Conclusion
The legislature leaving the section open-ended has its

definite advantages and disadvantages. However,
possible abuse of the provision by the executive over
the control of the public prosecutor. The wider
discretionary power under said section provided the
scope of gross misuse of the provision by the
government through withdrawal of case of Ministers,
MLAs, MP. But the judiciary played a very important
role during the examination of the application
whether the withdrawal of cases in the interest of

public justice or not[27].
This type of provision is very useful in democratic

Countries link India, where freedom to protest is
there. The government or police put various cases
during the democratic protest. If such type will go like
the normal course of the trial, then it takes precise
time of the court.
Also Read: REDEFINING OBSCENITY IN DYNAMIC

INDIA
The Supreme Court and High Courts

restrict the scope of the section by determining the
circumstances in which the section can be invoked,
and the role of public prosecutors in the criminal
justice system.
[1]In English law, this doctrine is incorporated into

S.23 of the Prosecution of Offences Act, 1985
[2] Paragraph 10 of the Code for Crown Prosecutors
[3] Common Wealth v. Buck, 188 N.E. 613
[4] 1861
[5]https://www.ourlegalworld.com/hierarchy-of-
criminal-courts-and-their/
[6] (2000) 4 SCC 459)
[7] 1996
[8] (2010) 9 scc 189
[9] 197th Law Commission Report 2006
[10] Special Public Prosecutor Section 24(8)
[11] Section 321 of the Criminal Prosedure Code 1973
[12] Proviso of Section 321.
[13] Sheondan Paswan v. State of Bihar, AIR 1983 SC

194
[14] Rajinder K. Jain v. State AIR 1980 SC1510
[15]Krishna Iyer J, in the case of Balwant Singh v.

State of Bihar,
(1977) 4 SCC 448.
[16] Capt. Ram Singh’s 2016Cr LJ HP, at 4469
[17]
Bansilal v. Chandan Law, AIR 1976 sc, at 370;
Balwant Singh v. State of Bihar, AIR 1977 SC, at 2265;
Subas Chander v. State, 1980
[18] (1980) 2 SCC 155
[19] 2001 CriLJ 3113
[20] Case No. 168 of 2010
[21] (2016) 3 SCC 135
[22] 2005 SCC (Crl.) 506
[23] (2021) SCC Online SC 510
[24] SLP(Crl) No. 4009/2021
[25] Ibid
[26] Writ Petition(s)(Civil) No(s).699/2016

[27]Abdul Karim v. State ofKarnataka, 2000 SOL Case

No. 602

Withdrawal From Prosecution Under Section 321 CRPC - OurLegalWorld

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Withdrawal From Prosecution Under Section 321 CRPC - OurLegalWorld

Uploaded by

Copyright:

Available Formats

6/8/22, 4:16 PM Withdrawal From Prosecution Under Section 321 CrPc- OurLegalWorld

Written by Advocate Ashish Panday (Delhi High

“We must always remember that procedural law

The article tries to identify the scope and limitations

The doctrine of withdrawal from

In the USA, the said doctrine is also

This research article examines the Indian

CRIMINAL JUSTICE SYSTEM

In the Indian Criminal Justice system, we

The criminal cases were instituted by the

hierarchical judicial system[5] which is provided by

In the Criminal Justice System, the state

The fourth pillar in the Criminal justice system is

Constitution and Structure of the Prosecution

Through the Code of Criminal Procedure, 1973, the

is represent the state but he is an officer of the court

The 154th Report[7] of Law Commission of India on

“Public Prosecutors are really Ministers of Justice

Whether the Public Prosecutor is an independent

According to the 197th report[9] on the appointment

The Prosecution Department is separated after the

The Public Prosecutors can be appointed by the

Provision of Withdrawal from Prosecution in

The Public Prosecutor or Assistant Public

The provision of Section 321 is said the previous

Scope, applicability and grounds:

The statutory responsibility for deciding

Section 24 and 25 of the act deal with the

The state government cabinet time to time

Though the statute does not provide guidelines regard

However, the reasons for withdrawal generally can be

The judicial reason is the most

The non-judicial reason while filing an application

The apex court in Bairam Muralidhar’s said that:-

1. The Public Prosecutor is appointed by the

The public prosecutor cannot act just like the post

The power under said section can only be exercised by

1. The court is required to exercise judicial

Withdrawn from prosecution u/s 321 CrPC is only

Withdrawal by the complainant

In a trial of a summons case on a private complaint

Locus Standi means the legal capacity to

Section 321 is also silent on the locus of the victim,

In the case of Sheo Nandan Paswan v. the State of

Public Prosecutor is bound by the state government

In apex court in Ashutosh Kumar Misra[20] “The

Withdrawal of criminal cases against

The prosecution department of the state gets

Indian Constitution prohibited any type

MISUSE OF PROSECUTOR’S POWER

Section 321 of CrPC doesn’t mention any conditions

application under said section with the consent of the

Recently, the Apex Court in State of Kerala Vs. K.

(i) The withdraw from prosecution by the public

(ii) The public prosecutor can not only file an

(iii) The public prosecutor must apply an

(v) The court while deciding whether to grant its

(a) The function of the public prosecutor should not

illegitimate reasons or purposes;

(b) The Withdrawal of case have must be in good faith,

(c) The application does not suffer from such

(d) The permission for withdrawal from prosecution

(vi) While determining the application, the