JIMS ENGINEERING MANAGEMENT TECHNICAL CAMPUS,

SCHOOL OF LAW, GREATER NOIDA

Submission of Project for Fulfilment of L.L.B Degree

Section 321: Withdrawal from Prosecution

THE CODE OF CRIMINAL PROCEDURE, 1973

Submitted to: Submitted by:

Prof. Dr. K.K. Geetha Siddhant Puri

DEAN VIth Semester

School of Law BBA LLB (Hons.)

1
 TABLE OF CONTENTS

S. NO CONTENTS P. No.

1. Table of Cases

2. Introduction

3. Scope, Application and Grounds

4. Distinction between Sec. 320 and 321

5. Duty of the Government

6. Who can Withdraw Prosecution

7. Stages of Withdrawal

8. Recording of Reasons

9. Third Party can Oppose Withdrawal

10. Conclusion

11. Bibliography

2
 TABLE OF CASES

Sr. No. Name of the case Citation

1. Rajendra Kumar Jain v. State (AIR 1980 SC 15010)

2. Abdul Karim v. State of Karnataka (2000, SCC 1765, 788)

3. State of Orissa v. Chandrika Mohapatra (AIR 1977 SC 903)

4. Emperor v. Labbai Kutt (AIR 1939 Mad 190)

5. Sanatan Ram v. State 1991 Cr LJ 758(ORI)

6. State of Orissa v. Chandrika Mahapatra (AIR 1977 SC 903)

7. Sheonandan Paswan v. State of Bihar (2000) 8 SCC 710

8. Km Srilekha Vidyarthi v . State of U.P. (1983) 1 SCC 438

9. Subash Chandra v. State (1980)3 SCC 434

3
 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
321, 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.

4
 SCOPE, APPLICATION AND GROUNDS

In the case Sheo Nandan Paswan V. State of Bihar and others1 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 U/S 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,

3. Inexpediency of the prosecution for reasons of State and public policy,

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 Administration2it was helds 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.

1
(1983) 1 SCC 438
2
(1980) 2SCC 155

5
It has been held by the Apex Court in the case of Abdul Karim and others v. State of
Karnataka3, 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 Establishment,4 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.”

In State of Orissa v. Chandrika Mohapatra5, Court held that the ultimate consideration
always must be the interest of administration of justice. The Section does not provide the
grounds on which the withdrawal may be sought.

In Emperor v. Labbai Kutt6, Madras High Court held that, to the PP is entrusted the discretion
to withdraw from the prosecution. It may, often be proper for him to consult the DM or other
authorities before exercising the discretion. The same office, of the PP, which acted for the
state to withdraw the cases, cannot come forward to set aside the order permitting to withdraw
the case, irrespective of the change in the ruling party.

3
(2000) 8 SCC 710
4
(1980) 3SCC 435
5
AIR 1977 SC 903
6
AIR 1939 Mad 190

6
In Sanatan Ram v. State,7 the court held, that where the state at one stage has decided not to
withdraw from the Prosecution, it can at subsequent stage decide to withdraw from the
prosecution, there is no bar.

In Sheonandan Paswan v. State of Bihar8, Supreme Court held, PP is not an independent

In KM Srilekha Vidyarthi v. State of U.P9, SC reviewed its above decision and finally putting
the discretion to withdraw from prosecution entirely on PP’s shoulders. The section is silent as
to the right of the complainant or any other person to oppose the application of the Public
Prosecutor seeking withdrawal from the prosecution.

7
1991 Cr LJ 758(ORI)
8
1987 AIR 877, 1987 SCR (1) 702
9
1991 AIR 537, 1990 SCR Supl. (1) 625

7
 DISTINCTION BETWEEN 320 AND 321

It must be pointed out that Section 321 provides for “Withdrawal from prosecution” and not
“withdrawal of prosecution”, the accused shall be discharged if the withdrawal is before the
framing of a charge and he shall be acquitted where no charge has been framed and such
acquittal shall be a bar to re-trial under Section 300. It would also be pertinent to note the
distinction between composition of an offence under Section 320 and ‘withdrawal” under
Section 321 of the Code. The main distinction between the two is as follows —

(1) Composition of an offence requires consent of both parties whereas withdrawal is an act
of one party only, namely, the Public Prosecutor.
(2) Withdrawal is always with the consent of the Court but in case of composition of an
offence Court’s permission is not always necessary.
(3) Composition necessarily ends in the acquittal of the accused, but in case of withdrawal
accused is discharged if withdrawal is made before a charge is framed.

8
 Duty of the 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 favoritism 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
Paswan10, 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.

10
Supra

9
 Stages 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 Vs. State11 , the Supreme Court has held that notwithstanding the fact that
offence is exclusively trial able 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 trail 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.

11
(1980)3 SCC 434

10
 Third Party can Oppose Withdrawal

Any private indivisual can oppose the application for withdrawal from prosecution and it
cannot be discounted on grounds of locus standi. In case of Sheo Nandan Paswan Vs. State of
Bihar12, 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.

Conclusion

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 judgment 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

12
(1987) 1 SCC 288

11