Introduction

• Once a prosecution is launched its relentless course cannot be halted except on sound consideration Germane to public justice. This line contains within itself the principle on the basis of which the public prosecutor can apply for withdrawal from the prosecution.
• The principle lies entrenched under Section 321 of the Criminal Procedure Code,1973 (CrPC).
• Since the state is responsible for prosecuting the offender in the criminal justice system, the public prosecutor acts as a representative of the government in the court and as an officer of the court assumes prime importance in justice delivery.
• Under this section, the public prosecutor or the associate public prosecutor in charge of the case is empowered to withdraw from the prosecution.
• The withdrawal can be done only with the consent of the court at any stage before the judgement is pronounced.

Legislative Intent behind Section 321 CrPC

• Any crime is said to be committed not just against the individual but against the entire society.
• Since the entire society is affected by the acts of the accused and we all know that it is not possible that entire society sue the accused person, and thus, the state takes the power and responsibility to initiate proceedings against the offender.
• There may be some situations in which the public prosecutor does not find enough evidence to further the prosecution case against the accused or that he or she realizes that furthering the prosecution case will lead to negating the prosecution evidence or that furthering the prosecution may not be in the interest of public justice, peace or tranquility.
• In such cases, the legislature provides freedom to the public prosecutor and thus the state government to end such cases furthering which may affect the public interest at large.
• Thus, Section 321 CrPC provides discretion to the public prosecutor to withdraw from the cases where they think that such withdrawal will be in saving the public interest at large.

Section 321 can be divided into three categories:

• Who can apply for withdrawal from prosecution?
• The consent of the court required or not?
• The victim locus standi.

Who can Withdraw?

• According to Section 321 CrPC, only the Public Prosecutor or Assistant Public Prosecutor who is in charge of a particular case can apply for withdrawal from the respective case.
• A public prosecutor cannot apply for withdrawal in case of a private complaint.
• There are no grounds mentioned under the section on which the public prosecutor applies for withdrawal from the case.
• The essential condition for withdrawal of case by the public prosecutor must be in the interest of administration of justice.
• The court is responsible for scrutinizing the reason behind the withdrawal and checking that withdrawal is not sought on extraneous reason or against the interest of justice.
• Furthermore, it is the duty of the court to satisfy itself with the reasons given by the public prosecutor for withdrawal of case and to ensure that he has applied his own mind and not just act as mere mechanical agent of the state government.
• The State Government can give instruction or opinion to the public prosecutor in regard to withdrawal of the case on the ground of public policy, but the public prosecutor has to apply his own free mind on the relevant case.
• Thus, in answer to the question who can withdraw? It is certainly the public prosecutor or the assistant public prosecutor in charge of the case, but, in actual reality this power is often used by the state government due to the relationship of agent and principle between the public prosecutor and the state.

The Consent of the Court Required or not?

• Section 321 CrPC does not provide any guidelines to be followed by the court in determining whether the consent for the withdrawal of the case is to be given or not.
• Thus, the court has unfettered discretion as regards giving consent to the application for withdrawal from prosecution filed by the prosecutor in charge of the case.
• However, through various judgements, the SC has laid down guiding principles to be followed by the court in giving consent for withdrawal of the case.
• The court should give consent only when it is satisfied with the fact that such a grant for withdrawal of the application would serve large public interest and justice.

Victims' Locus Standi

• Section 321 CrPC is silent on the locus of the person in question, the complainant or some other individual to restrict the use of withdrawal from prosecution by the prosecutor.
• In Sheonandan Paswan v. State of Bihar (1987):
  • The appellant applied before the trial court to initiate proceedings under Section 302 of Indian Penal Code,1860(IPC) against the accused while at the same time the prosecutor was applying for the withdrawal.
  • The Supreme Court rejected the application of the appellant and allowed the application of the public prosecutor in charge of the case to withdraw from prosecution.
• Something similar happened in the case of Subhash Chander v. State (1980), In this case, the private complainant opposed the application for withdrawal from the prosecution, but the application was permitted to be withdrawn by the SC.
• However, in the case of M. Balakrishna Reddy v. Principal Secretary to Govt. Home Deptt.(1999), Andhra Pradesh High Court held that:
  • An individual not being the victim of the crime is equally endowed with the right to oppose the withdrawal application from prosecution as is the victim of the crime.
  • The court further observed that the third person is a part of the community against whom the crime has been committed and thus he or she has a locus standi to oppose the withdrawal.
• In V.S Achuthanandan v. R. Balakrishnan Pillai (1995), the SC accepted the locus standi of the opposition leader in opposing the withdrawal application from prosecution against a minister since no one else was opposing such an application.

Thus, at present, it is more in favour of the recognition to victims and third-party locus standi in opposing the application for withdrawal from the prosecution.

Withdrawal of Prosecution from Whom and of What Offences?

• Withdrawal from the prosecution of any individual either generally or in respect of any one or more of the offences for which he is tried. Given that where such offence-
  • Was against any law identifying with an issue of which the official power of the union broadens, or
  • It was explored by Delhi Special Police Establishment, under the Delhi Special Police Establishment Act, 1946, or
  • Included the misappropriation or decimation of, or harm to, any property related to the Central Government, or
  • Was submitted by an individual in the administration of the Central Government while acting or implying to act in release of his official obligation,
  • Furthermore, if the examiner accountable for the case has not been designated by the Central Government he will not, except if he has been allowed by the Central Government to do as such, move the court for its consent to withdraw from the prosecution and the court will, before giving the assent, direct the prosecutor to present before it the authorization granted by the Central Government to withdraw from the prosecution.

Conditions Precedent for Withdrawal

• The two conditions precedent for withdrawal are:
  • If it is made, before a charge has been encircled, the accused or the blamed person will be released in regard to such offence or offences.
  • If it is made after a charge has been encircled, or when under this code no charge is required, he will be absolved in regard to such offence or offences.