Source: Allahabad High Court 

Why in News? 

A bench of Justice Arun Kumar Singh Deshwal held that the Court should not permit withdrawal of prosecution if the prosecutor does not mention his opinion.             

• The Allahabad High Court held this in the case of Dilip Singh v. State of U.P. and Another (2025). 

What was the Background of Dilip Singh v. State of U.P. and Another Case?

• In the present facts First Information Report (FIR) was lodged by opposite party no. 2 against Dilip Singh under Sections 384, 506 Indian Penal Code, 1860 (IPC). 
• After investigation, police filed charge sheet under Sections 384, 352, 504, 506 IPC. 
• During the trial's pendency, the State filed an application under Section 321 Criminal Procedure Code, 1973 (CrPC) to withdraw prosecution, based on Government Order dated 6th May 2013. 
• The Public Prosecutor did not mention any reason or public interest for withdrawal from the application.  
• The accused (Dilip Singh) is a history sheeter with 32 cases against him. 
• The trial is at an advanced stage with Section 313 CrPC statement already recorded. 
• Both the trial court (Additional Chief Judicial Magistrate) and revisional court rejected the withdrawal application. 
• The present application under Section 482 CrPC seeks to quash: 
  • Order passed by the Additional Chief Judicial Magistrate. 
  • Order passed in criminal Revision. 

What were the Court’s Observations?  

• The Court held that it has been observed by the Supreme Court in earlier decisions that an application by the prosecution for withdrawal must be made in good faith and in interest of justice and not thwart or stifle the process of law. 
• Further, it was observed that the legal position is that prosecution cannot be withdrawn merely because the government has issued a government order.   
  • The public prosecutor should also apply his mind by mentioning in his application filed under Section 321 CrPC that he is satisfied that the application has been made under good faith and in the interest of public policy and justice.  
• Therefore, on the application by public prosecutor to withdraw the criminal case on the basis of government order without mentioning any reason or his opinion, court should not permit to withdraw the prosecution as the same is not permissible in the eyes of law. 
• Thus, the Court in the present case did not find any illegality in the impugned order and dismissed the application.

What is Withdrawal of Prosecution?

• Section 321 of CrPC provides for withdrawal of Prosecution.  
• This provision can now be found under Section 360 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).  
• Under Section 360 of BNSS following points are laid down: 
  • A Public Prosecutor or Assistant Public Prosecutor can withdraw from prosecuting a case, but they need the Court's permission to do so. 
  • This withdrawal can be done any time before the final judgment, and it can be
    • For all charges against the accused 
    • For specific charges only 
  • The effect of withdrawal depends on timing:  
    • If withdrawn before charges are framed: The accused is discharged 
    • If withdrawn after charges are framed: The accused is acquitted 
  • Special permission from Central Government is needed if the case involves:  
    • Matters under Union government's power 
    • Cases investigated under Central laws 
    • Damage to Central Government property 
    • Crimes by Central Government employees during official duty 
  • Two important safeguards:  
    • In cases involving Central matters, the prosecutor must show the court written permission from Central Government 
    • The court must hear the victim's side before allowing any withdrawal

What are Landmark Cases on Withdrawal of Prosecution? 

• Abdul Wahab K v. State of Kerela and other (2018): 
  • The Public Prosecutor or an Assistant Public Prosecutor, as the case may be, has an important role under the statutory scheme and is expected to act as an independent person. 
  • He/she has to apply his/her own mind and consider the effect of withdrawal on the society in the event such permission is granted. 
• State of Kerela v. K Ajith and others (2021): 
  • The Court laid down before deciding whether to grant consent for withdrawal of prosecution the Court must be satisfied that: 
    • The 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 application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law. 
    • The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given. 
    • The grant of consent subserves the administration of justice. 
    • Permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the Public Prosecutor is duty-bound to maintain.