ABSTRACT

In the criminal justice system, a person's crime is never committed against a single person or
victim, but rather against the entire society (state). As a result, the state is a party in criminal
proceedings. The Public Prosecutor is in charge of prosecuting criminal matters on behalf of
the state. The CrPC is one of the most important laws in the Indian Criminal Justice System
that governs the procedural aspects of a criminal trial. This present research paper examines
the situation in India in terms of the withdrawal from prosecution .

Keywords: Public prosec

CONTENTS

INTRODUCTION

Any crime which is against the entire society and not just the individual the state assumes the
obligation to pursue prosecution under Section 321 of the Criminal Procedure Code of 1973.
It gives the Public Prosecutor/Assistant Public Prosecutor the authority to withdraw a case at
any stage before the judgement is pronounced after getting written approval from the state
government, which must be presented in Court. The authority of withdrawal can be exercised
by the Public Prosecutor/Assistant Public Prosecutor in the interest of public policy and
justice, rather than to obstruct or hinder the legal process.

Although section 321 does not apply to some special laws dealing with terrorist related
actions such as UAPA but the principle of judicial review still applies to all special laws
relating to power of court to give consent to public prosecutor's withdrawal application from
prosecution.

The prosecution was separated from the police department by the Code of Criminal
Procedure, which was enacted in 1973. In the criminal justice system, the position of
prosecutor is critical for a fair trial. The prosecutor is an officer of the court who supports the
court in finding the truth and providing justice not only to the victim but also to the accused,
as guaranteed by Article 21 of the Indian Constitution.

The supreme court quoted in Babu v. the State of Kerala that:

“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.”1

RESEARCH QUESTION
1
(2010) 9 SCC 189
RESEARCH METHODOLOGY

The approach of this paper is doctrinal research in which secondary sources such as
journal ,articles,books,research papers and related websites are used.

HYPOTHESES

LITERATURE REVIEW

Dr Mithilesh Narayan Bhatt in Withdrawal of Prosecution examined the roots of Naxalism/

Maoism and the incidents of abduction and blackmailing and government responses,
withdrawal of prosecution in heinous crimes under section 321 crpc and its scope . he stated
in a number of cases involving Naxalites/Maoists, Section 321 is abused when they try to
persuade the government to drop charges against members accused of committing terrible
crimes by kidnapping powerful people.

Poornima Hatti and Rati Ranga in Withdrawal from prosecution: Current crisis and
controversial application argued that courts have interpreted the clause to suggest that state
governments might instruct public prosecutors to drop cases for policy or public interest
reasons. However, if the Public Prosecutor comes to the opinion that, contrary to the
Government's orders, a particular case does not require withdrawal, his sole valid choice is to
resign rather than file a withdrawal motion and explain to the court why the application is not
viable. As a result, determining whether government directives are genuine or not can be
difficult in some cases, particularly when high-ranking officials are involved and, at times,
working in self-interest rather than the public interest.

Ashutosh Kumar Misra2 in The Withdrawal from Prosecution analysed that the public
prosecutor's decision under section cannot be overturned lightly unless the Court finds that
the Public Prosecutor has not applied his intellect or that his decision is not in the public
interest. In providing its authorization to withdraw from prosecution, the Court has a special
responsibility since it is the final repository of legislative trust.

SCOPE, APPLICABILITY & GROUNDS

Section 321 of the Code grants the Public Prosecutor or Assistant Public Prosecutor broad
executive power to withdraw from a case, subject to the Court's approval. If consent is
granted, the accused must be discharged or acquitted, depending on the circumstances. The
accused shall be dismissed in respect of such offence or offences if the withdrawal is made
before a charge has been created, and the accused shall be acquitted in respect of such

2
https://ujala.uk.gov.in/files/ch08.pdf
offence if the withdrawal is made after a charge has been framed or when no charge is
necessary under the Code.

However, this section makes no mention of the reasons on which the Public Prosecutor may
file the application or the factors on which the Court will decide whether or not to grant
consent. The Court must use its judicial judgement when giving approval.

In the case Sheo Nandan Paswan v.State of Bihar and others,3 the apex court cited four
grounds for seeking withdrawal from prosecution-

1. The absence of a reasonable prospect of a successful prosecution in light of the evidence,

2. The implication of individuals as a result of political and personal grudge,
3. The prosecution's inefficiency for reasons of State and public policy, and
4. The adverse effects that the prosecution's continuation will have on the public interest in
light of the changed situation.

In the case of Subhash Chandra Vs. Chandigarh Administration4, it was held that the Public
Prosecutor, who is the only one who can pray for withdrawal, is to act not as an executive but
as a judicial limb, and that in praying for withdrawal, he is to exercise his
independentdiscretion, even if it offends his master and jeopardises his office's continuation.

It is impossible to provide permission to withdraw from prosecution on a mechanical basis.

Withdrawal must be done in the public interest and exclusively for the proper administration
of justice. In Abdul Karim and others vs. State of Karnataka5, the Supreme Court held that an
application under Section 321 Cr.P.C. could not be granted solely on the basis that the State
Government had decided to withdraw the prosecution, and that such an order could only be
issued after a thorough examination of the facts and circumstances of the case.

the Supreme Court held in Rajender Kumar Vs. State through Special Police Establishment, 6

"It shall be the duty of the Public Prosecutor to inform the Court of the grounds for
withdrawal, 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, like the Public
Prosecutor, its 'Minister of Justice,' has a role and a stake in the administration of criminal
justice. By using the provisions of Section 321, Cr.P.C. both have a duty to preserve the
administration of criminal justice from possible abuse or misuse by the Executive. 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.”
3
(1983) 1 SCC 438
4
( 1980) 2 SCC 155
5
( 2000) 8 SCC 710
6
( 1980) 3 SCC 435
PUBLIC PROSECUTOR AN INDEPENDENT

According to the 197th Law Commission Report 2006 on Public Prosecutors, they must be
independent of the executive and any external forces, as well as the police and the
investigation process. In areas pertaining to the investigation, he is unable to provide advice
to the police. The public prosecutor is not influenced by the Executive Branch. He is
independent of the Court, yet he does have responsibilities to the Court. He is in charge of the
Court's trial, appeals, and other procedures. He is, after all, a part of the judicial process, an
officer of the Court and a minister of justice who assists the Court.

Under Section 24(8) of Special Public prosecutor, the Central or State governments can
appoint Public Prosecutors in various courts, whereas Assistant Public Prosecutors are
appointed under Section 25. Under section 25A of the criminal amendment of 2005, the state
government may create a Directorate of Prosecution.

WITHDRAWAL FROM PUBLIC PROSECUTOR

Section 321 of the CrPC does not provide any conditions or procedures for Withdrawal from
Prosecution, it does give the Public Prosecution/Assistant Public Prosecutor discretion to
bring an application under the section with the Court's permission. As a result, executive
control over prosecution has resulted in widespread abuse by the state or federal
governments.

Recently , the guidelines were framed in relation to the case State of Kerala v.K Ajith7,
which are :

1. Consent of court is mandatory.

2. Grounds for withdrawal shall not only be merely paucity of evidence nut also furtherance
of broad ends of public justice.
3. Formulation of Independent Opinion by Public Prosecutor before seeking consent of the
Court for withdrawal.
4. Court must ensure that the withdrawal is for good and relevant reasons.
5. The court must be satisfied that:
6. There is no attempt to interfere with the normal course of justice.
7. Application must have been made bona fide.
8. Application made must not suffer from any infirmity leading to justice.
9. Grant of consent must further administration of justice.
10. Consent must not have been sought for ulterior purposes.
11. While deciding the withdrawal Application,the court may scrutinize the nature and
gravity of the offence and its impact upon public interest.

7
2021 SCC OnLine SC 510
12. Supreme Court must remain cautions disturbing the concurrent findings of the Trial Court
and the revision court in granting or refusing consent.

In case AshwiniKumar Upadhyay v.Union of India 8,the Honble Supreme Court was pleased
to direct that ‘no prosecution against a sitting or former M.P./M.L.A.shall be withdrawn
without the leave of the High Court.’

The high courts were requested to examine the withdrawals,whether pending or disposed of
since 16th September 2020.

MISUSE OF SECTION 321

The Indian Constitution prohibits all forms of discrimination and guarantees equal protection
under the law. The removal of MPs, MLAs, and others from prosecution is a violation of
Article 14 of the Constitution, which mandates that ordinary citizens be subjected to harsh
criminal proceedings for minor offences. However, because the government misuse the
law, the Supreme Court ruled in Rahul Agrawal v. Rajesh Jain 9that applications under
section 321 are only permitted when valid reasons are provided and the public interest is
served.

The Vidhi report emphasised that there is an increasing withdrawal of cases during election
years, particularly when elections result in a change in the political party in power.

"In recent years, across many states, the executive has misused this provision to gain
political support and allies during elections. At many instances, political parties have even
made electoral promises to withdraw prosecution against political supporters to gain support
and votes in the election," the report stated.10

In this regard, the report mentions how political parties such as the Aam Aadmi Party in the
2013 Delhi elections, the Jharkhand Mukti Morcha in the 2019 Jharkhand elections, the
Indian National Congress in the 2019 Madhya Pradesh elections and 2019 Odisha elections,
and the Dravida Munnetra Kazhagam in the 2020 Tamil Nadu elections made it their election
promises.

STATISTIC
8
WP(c) No. 699/16
9
Appeal( crl) 559/03
10
States misuse section 32 CrPc to withdraw criminal cases; numbers spike during elections years: Vidhi
report,BAR and BENCH, 06March 2022,
https://www.barandbench.com/news/states-misuse-section-321-crpc-withdraw-criminal-cases-numbers-
spike-during-elections-years-vidhi-report
The Vidhi report shows the withdrawal of cases based on election year and rest of the year
between 2015-19 on some of the following states11 :

 Delhi, shows thw withdrawal of cases during election period is 65%

 Rajaasthan shows 45% of withdrwal during election period
 Madhya Pradesh shows 50% of the cases are withdrawn during election period.
 Karnataka in 2019,withdraw 60%of the cases during election period.
 Kerala 10% of the cases are withdrawn during election period.
 Jammu and Kashmir 90% of the cases are withdrawan during election period.
 Andhra Pradesh 15% of the cases are withdrawn during election period.
The report, titled 'The Quest for Prosecutorial Independence,' claims that Section 321 of
the Code of Criminal Procedure (CrPC), which allows public prosecutors to withdraw a
case, is frequently abused by politicians to further their own agendas.

The court concluded in Sheo Nandan Paswan v. State of Bihar and Ors.12 that the public
prosecutor's decision to dismiss the case should be free of outside influences. It was held that
the Court's duty was "not to reappreciate the grounds which led the Public Prosecutor to
request withdrawal from the prosecution but to consider whether the Public Prosecutor
applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations,"
despite the fact that the court's role was merely "supervisory" in granting consent to the
withdrawal. And it is at this point that the section gets difficult to implement.

While the idea of a public prosecutor free from outside influences is appealing in theory, it is
impossible to implement in practise because the judgement fails to consider how political and
monetary pressures may impact these judgments. Yogi Adityanath, the current Chief Minister
of Uttar Pradesh, has been charged with a number of criminal offences, including hate speech
and incitement to communal violence. As soon as his government took office, it opted to
dismiss several of these cases, making him one of the first chief ministers to dismiss cases
against himself. The government has also attempted to withdraw cases against various
legislators suspected of involvement in the Muzzafarnagar riots dismissed.

It can be difficult to tell whether government directives are genuine or not in some cases,
especially when high-ranking officials are involved and, at times, operate in their own self-
interest rather than the public good.

SUGGESTION

11
States misuse section 32 CrPc to withdraw criminal cases; numbers spike during elections years: Vidhi
report,BAR and BENCH, 06March 2022,
https://www.barandbench.com/news/states-misuse-section-321-crpc-withdraw-criminal-cases-numbers-
spike-during-elections-years-vidhi-report

12
( 1987) 1 SCC 288
 The judiciary, it is claimed, should have a significantly more active role in determining
the result of instances in which the public prosecutor invokes section 321.
 Section 321 could be amended to include the words "in the public interest and in the
interests of justice."
 When it comes to the withdrawal of cases, there needs to be a development of "public
moral judgement," as well as safeguards to ensure that prosecutors are not pressured into
doing so.
 The parliament shall pass a law which keeps the government interference in the
withdrawal of criminal cases by public prosecutor.

CONCLUSION

Many politicians arm-twist the state Governments to withdraw from the prosecutions initiated
against them.

The directions ins relation to section 321 of CrPC depict the seriousness of the Honble
Supreme Court to deal with criminal cases against the politicians. The legislature's decision to
leave the section open-ended offers both benefits and drawbacks. However, there is a risk that
the government will abuse the clause by exerting influence over the public prosecutor. The
government could abuse the provision by withdrawing cases of ministers, MLAs, and MPs,
but the judiciary played an important role in determining whether the withdrawal of cases
was in the interest of public justice or not.This type of provision is very useful in democratic
countries like India, where people have the right to protest. Various cases were filed by the
administration or the police during the democratic protest. If such a case follows the typical
path of a trial, the court will need to set aside specific time.

The Supreme Court and the High Court limit the section's reach by regulating when it can be
used and the function of public prosecutors in the criminal justice system.