Source: Andhra Pradesh High Court

Why in News?

Recently, the Andhra Pradesh High Court has held that an independent decision must be made as to whether the prosecution of an accused is to be withdrawn or not although a public prosecutor is entitled to move an application under Section 321 of the Criminal Procedure Code, 1973 (CrPC) for withdrawal of prosecution.

What was the Background of the Case?

• A petition has been filed before the Andhra Pradesh High Court in public interest questioning the Government Order whereby, a decision has been taken to withdraw the prosecution in as many as six cases registered against the accused and directions have been issued to the Director General of Police, Andhra Pradesh to instruct the Public Prosecutor concerned to file a petition under Section 321 of CrPC for withdrawal of prosecution of the said six cases.
• Learned counsel for the petitioner submitted that the power to withdraw lies exclusively with the Public Prosecutor in terms of Section 321 of CrPC and that no Government’s interference in that power is either envisaged or warranted.
• The State contended that merely because a Government Order was issued, it does not vitiate the power exercisable by the Public Prosecutor to withdraw under Section 321 of CrPC.
• The High Court has provided for an interim measure while listing the matter for further proceedings.

What were the Court’s Observations?

• A Division Bench of Chief Justice Dhiraj Singh Thakur and Justice R. Raghunandan Rao observed that although a public prosecutor is entitled to move an application under Section 321 of CrPC for withdrawal of prosecution, an independent decision must be made as to whether the prosecution of an accused is to be withdrawn or not.
• The Court stated that as an interim measure, we direct that while the Public Prosecutor is vested with the power to move an application under Section 321 of CrPC yet, notwithstanding the fact that the Government Order has been issued, and the Public Prosecutor would be entitled to take an independent decision as to whether the prosecution has to be withdrawn or not.

What is Section 321 of CrPC?

About:

• Section 321 of CrPC deals with the withdrawal from prosecution whereas the same provision has been covered under Section 360 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS). It states that

The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal, —

(a) If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences.

(b) If it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.

Provided that where such offence—

(i) Was against any law relating to a matter to which the executive power of the Union extends, or

(ii) Was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or

(iii) Involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iv) Was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.

Case Law

• In State of Kerala vs. K. Ajith & Ors. (2021), the Supreme Court has laid down the following principles in respect Section 321 of CrPC:
  • Section 321 of CrPC entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution.
  • The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice.
  • The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution.
  • 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.
  • In deciding whether to grant its consent to a withdrawal, the Court exercises a judicial function, but it has been described to be supervisory in nature.
  • While determining whether the withdrawal of the prosecution subserves 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.