Withdrawal from Prosecution in Criminal Case Under Section 321 CrPC
Written by Advocate Ashish Panday (Delhi High Court)
“We must always remember that procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant not a resistant in the administration of justice”
Justice Krishna Iyer
INTRODUCTION
In the criminal justice system, an offence done by a person is never against any particular individual or victim but against the whole society (state). Therefore, the state itself is a party in Criminal matters. The prosecution of criminal cases is conducted by the Public Prosecutor on behalf of the State. In Indian Criminal Justice System there is various law that provides a procedural aspect of a criminal trial, the CrPC is one and most important of them. The present article is aimed to analyse the prosecution system with respect to Withdrawal from prosecution.
The article tries to identify the scope and limitations of criminal procedural law doctrine viz. the Withdrawal from Prosecution.
The doctrine of withdrawal from prosecution is recognized in criminal procedural law in many countries. The common law countries recognize the said doctrine as “discontinuance of the prosecution”[1] This power is vested to the Crown Prosecutor.[2]
In the USA, the said doctrine is also known as nolle prosequi, the prosecution will not and while it is not an acquittal, it constitutes a termination of that particular prosecution.[3]
This research article examines the Indian scenario regarding the said withdrawal from prosecution and its application.
CRIMINAL JUSTICE SYSTEM
In the Indian Criminal Justice system, we have four important institutions, which dealt with criminal acts, Investigating Agency (e.g State Police), the Judiciary, the Prosecution Wing and the Prison. The police wing is established by the state under the Indian Police Act[4] and in addition to the State Police, many other central government investigating agencies are investigating criminal matters, including the CBI [Delhi Special Establishment Act, 1946], NIA, Enforcement Directorate etc. These cases are investigated within jurisdictions and prosecuted in the courts of law.
The criminal cases were instituted by the investigating agency followed the procedure mentioned under the CrPC or any other special or local laws and adjudicated by the Courts. We have a hierarchical judicial system[5] which is provided by section 6 Criminal Procedure Code, 1973. At the level is the Court of Judicial Magistrates/Metropolitan Magistrate, at the district level, there is the Court of District and Sessions. The highest court in a state is the High Court, at is an appellate court and hears appeals against the orders of conviction or acquittal passed by the subordinate courts. At the apex, is the Supreme Court of India.”
In the Criminal Justice System, the state has a duty to prosecute the accused in the courts of law. The state governments or central government-appointed public prosecutors or Assistant Public/Special Prosecutors to prosecute cases in the Court of Law.
The fourth pillar in the Criminal justice system is Prisons and Correctional Services. Both services are under the control of the state governments, they govern by the Prisons Act or manual.
“The apex court in R Sarala v. TS Velu[6] held that the prosecution and the investigation after CrPC, 1973 become the two separate wings in the Indian criminal justice system a, wherein the role of a prosecutor starts after completion of the investigation, and not during the investigation. Otherwise, the principles for a fair trial, equity and justice will be compromised and every proceeding where the prosecutor acts on behalf of the Police or executive will be jeopardized.”
Constitution and Structure of the Prosecution
Through the Code of Criminal Procedure, 1973, the prosecution was brought under a separate agency and detached from the police department. The position of Prosecutor is very important in the criminal justice system for a free trial. The prosecutor is represent the state but he is an officer of the court and assists the Court to find the truth and serving justice not only to the victim but also to the accused which right granted under Article 21 of the Indian Constitution.
The 154th Report[7] of Law Commission of India on ‘Code of Criminal Procedure, 1973’ and the apex court quoted in Babu v. the State of Kerala[8] to the following effect:
“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.”
Whether the Public Prosecutor is an independent person or under executive Control?
According to the 197th report[9] on the appointment of Public Prosecutors and independent from the executive and other external influences, also independent of the police and the investigation process. He cannot advise the police in matters relating to the investigation. He is independent of Executive interference. He is independent of the Court but has duties to the Court. He is in charge of the trial, appeal and other processes in Court. He is, in fact, a limb of the judicial process, an officer of Court and a minister of justice assisting the Court. He has duties not only to the State and to the public to bring criminals to justice according to the rule of law but also duties to the accused so that innocent persons are not convicted.
The Prosecution Department is separated after the new criminal procedure. Previously the prosecution is under the state police department, now the prosecution is under the home department of the State.
The Public Prosecutors can be appointed by the Central or State government in the various court under Section 24[10] and Assistant Public Prosecutors are appointed under section 25 of the code. The criminal amendment 2005 introduce the concept of the Directorate of Prosecution under section 25A which may establish by the state government.
Provision of Withdrawal from Prosecution in Indian law
In general, justice demands that every case should normally be allowed to take its usual course. and should not be interrupted en route but the doctrine of Withdrawal from Prosecution is the exception to this rule. The expression of Withdrawal from Prosecution have found in Section 321 of the Code of Criminal Procedure, 1973, read as [11]–
- The Public Prosecutor or Assistant Public Prosecutor can only with the consent of the court withdraw the prosecution of any person
- At any time but before the pronouncement of judgement withdraw the prosecution
- If the withdrawal takes place before framing of the charges, the accused can only be discharged,
- But if the withdrawal takes place after the framing of charges, the accused would be entitled to acquittal.
The provision of Section 321 is said the previous approval of the central Government is also required if the offence (i) was against the Union extent (ii) the investigation was done by the CBI under the Delhi Special Police Establishment Act, 1946 (iii) if the offence was committed by the person who is in central government service[12].
Scope, applicability and grounds:
The statutory responsibility for deciding upon withdrawal from Prosecution is with Public Prosecutor or Assistant Public Prosecutor, there is no role of government. But the application of the above-said doctrine is very different from a literal reading of the section, the government has executive control over the Prosecution department, therefore inherently has major say.
Section 24 and 25 of the act deal with the PP and APP, they are appointed by the State Government or Central Government and have a fiduciary relationship between them.[13] However, S. 321 doesn’t mention the role of government but it is only the duty of the Public Prosecutor to inform the court and the subject to court to apprise itself of the reasoning which prompts the withdrawal.[14]
The state government cabinet time to time recommends that the prosecution department withdraw certain cases in court. These recommendations stated that the withdrawal of the case is necessary and is in the interest of public justice.
Though the statute does not provide guidelines regard to the application of withdrawal, patently the door opens to misuse of the section by the Political Parties. However, the reasons for withdrawal generally can be divided into two categories;-
Judicial Reason
The judicial reason is the most recognised reason behind the withdrawal from prosecution. The prosecutor submits an application sitting the judicial ground such as insufficient evidence, falsifying the prosecution evidence, false and frivolous allegations etc..
Non-Judicial Reason
The non-judicial reason while filing an application under section 321, is not a merit of the case but it’s resulting in communal feuds, political class etc. This reason is often linked with the political motive.[15]
The apex court in Bairam Muralidhar’s said that:-
- The Public Prosecutor is appointed by the executive
- The PP/APP is an officer of the court and he has bound the help the court in the administration of justice.
- In the Indian Criminal Justice System, the prosecution played a very important responsibility.
- The PP/APP has an obligation to state what material he relied on, and he moved the application under section 321 to seek the withdrawal.
The public prosecutor cannot act just like the post office on behalf of the executive. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large.
The power under said section can only be exercised by the prosecutor only with the consent of the Court[16]. The Court have to follow certain guidelines which lead by the apex court. Thus are:-
- The court is required to exercise judicial discretion properly, not mechanically[17].
- The Court is required to properly consider the material on record and whether the application is filed in good faith and is in the interest of Public Justice.
- Once the court approved the application
Withdrawn from prosecution u/s 321 CrPC is only permissible in the public interest and cannot be done for political considerations. The application must be made in good faith, in the interest of public policy and justice and not the misuse of the process of law by the executive. The check and balance is an essential ingredient always there in any discretionary power to any person or authority.
Withdrawal by the complainant
In a trial of a summons case on a private complaint under section 190 of the Criminal Procedure Code if the complainant at any time before pronouncement of order after satisfying the magistrate that there are sufficient grounds for permitting him to withdraw his complaint against the accused, then the magistrate may allow a complainant to withdraw the complaint, and shall thereupon acquit the accused. (Sec.257 Cr.P.C)).
Locus Standi
Locus Standi means the legal capacity to approach courts. In the court in recent times, the rule of locus standi was interpreted liberally.
Section 321 is also silent on the locus of the victim, complainant or any other person to oppose the application of withdrawal from prosecution filed by a public prosecutor, in Subhash Chander v State[18].
In the case of Sheo Nandan Paswan v. the State of Bihar, the Supreme Court held that citizens can lodge an FIR or registered a complaint and set the machinery of Criminal law in motion, society has locus standi to oppose withdraw. Therefore any person from the society can oppose the application for withdrawal from prosecution.
Public Prosecutor is bound by the state government recommendation on withdrawal of the case, if he does not agree with the proposal, he has to resign, or government will appoint the Special Public Prosecutor of that recommendation.
In Poonamchand Jain v. the State of MP[19], MP High Court had ruled that the appointment of SPPs under CrPC and also held that such appointment against the basic principle of CrPC, the government must objectively assess the facts and circumstances and ascribe reasons for such appointment. The court further said that the serious nature of the crime or the pressure from media is not special grounds that warrant the appointment of an SPP.
In apex court in Ashutosh Kumar Misra[20] “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.”
Withdrawal of criminal cases against Ministers, MP, MLAs
The prosecution department has to discharge their duty according to the law of the land and bring out the maximum conviction. However, the various governments used section 321 CrPC, to withdraw the case against the ministers and own political leaders without giving any legitimate reasons. In Criminal jurisprudence, the concept of a fair trial entails balancing the interest of the accused, the Victim, and the society with the help Pooja Pal v. Union of India[21]
The prosecution department of the state gets instruction from the cabinet of the Government, to make an application to Withdrawal from the Prosecution. Recently, Karnataka High Court and Allahabad High Court criticised the public prosecutor on their act.
Violation of Article 14
Indian Constitution prohibited any type of discrimination and provide equality before the law. The withdrawal from the Prosecution of the MP, MLAs etc is violative of Article 14 of the Constitution, where the common people face rigorous criminal trials for minor offences. But government misuse the provision, the apex court in Rahul Agrawal v. Rajesh Jain[22] the application under section 321 only allowed when valid reasons are made out and interest in the justice.
MISUSE OF PROSECUTOR’S POWER
Section 321 of CrPC doesn’t mention any conditions and guidelines for Withdrawal from Prosecution, but it provides discretionary power to Public Prosecution/Assistant Public Prosecutor to file an application under said section with the consent of the Court. So, executive control over Prosecution that resulting in gross misuse by the state government or central government.
Recently, the Apex Court in State of Kerala Vs. K. Ajith,[23] lead down certain guidelines – “The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:”[24]
(i) The withdraw from prosecution by the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;
(ii) The public prosecutor can not only file an application under section 321 on the ground of paucity of evidence but also further the broad ends of public justice;
(iii) The public prosecutor must apply an independent mind before seeking the consent of the court to withdraw from the prosecution;
(iv) “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;”[25]
(v) The court while deciding whether to grant its consent to an application, the court must have exercised a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:
(a) The function of the public prosecutor should not interfere with the normal course of justice for illegitimate reasons or purposes;
(b) The Withdrawal of case have must be in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;
(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;
(d) The permission for withdrawal from prosecution should not be sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty-bound to maintain;
(vi) While determining the application, the prosecution sub-serves 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;
In Ashwini Kumar Upadhyay Vs Union of India[26], the three judges of the apex court laid down certain guidelines for withdrawal from Prosecution for sitting or former MLAs, MPs, Ministers, in the guidelines court bars withdrawal without consent of High Court.
Conclusion
The legislature leaving the section open-ended has its definite advantages and disadvantages. However, possible abuse of the provision by the executive over the control of the public prosecutor. The wider discretionary power under said section provided the scope of gross misuse of the provision by the government through withdrawal of case of Ministers, MLAs, MP. But the judiciary played a very important role during the examination of the application whether the withdrawal of cases in the interest of public justice or not[27].
This type of provision is very useful in democratic Countries link India, where freedom to protest is there. The government or police put various cases during the democratic protest. If such type will go like the normal course of the trial, then it takes precise time of the court.
Also Read: REDEFINING OBSCENITY IN DYNAMIC INDIA
The Supreme Court and High Courts restrict the scope of the section by determining the circumstances in which the section can be invoked, and the role of public prosecutors in the criminal justice system.
[1] In English law, this doctrine is incorporated into S.23 of the Prosecution of Offences Act, 1985
[2] Paragraph 10 of the Code for Crown Prosecutors
[3] Common Wealth v. Buck, 188 N.E. 613
[4] 1861
[5] https://www.ourlegalworld.com/hierarchy-of-criminal-courts-and-their/
[6] (2000) 4 SCC 459)
[7] 1996
[8] (2010) 9 scc 189
[9] 197th Law Commission Report 2006
[10] Special Public Prosecutor Section 24(8)
[11] Section 321 of the Criminal Prosedure Code 1973
[12] Proviso of Section 321.
[13] Sheondan Paswan v. State of Bihar, AIR 1983 SC 194
[14] Rajinder K. Jain v. State AIR 1980 SC1510
[15] Krishna Iyer J, in the case of Balwant Singh v. State of Bihar,
(1977) 4 SCC 448.
[16] Capt. Ram Singh’s 2016Cr LJ HP, at 4469
[17] Bansilal v. Chandan Law, AIR 1976 sc, at 370; Balwant Singh v. State of Bihar, AIR 1977 SC, at 2265; Subas Chander v. State, 1980
[18] (1980) 2 SCC 155
[19] 2001 CriLJ 3113
[20] Case No. 168 of 2010
[21] (2016) 3 SCC 135
[22] 2005 SCC (Crl.) 506
[23] (2021) SCC Online SC 510
[24] SLP(Crl) No. 4009/2021
[25] Ibid
[26] Writ Petition(s)(Civil) No(s).699/2016
[27] Abdul Karim v. State ofKarnataka, 2000 SOL Case No. 602
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