By Aryan Mohanty
Published On: February 22, 2022 at 19:34 IST
Introduction
The Code of Criminal Procedure, 1973 is a procedural legislation that specifies how a criminal trial should be conducted in accordance with substantive criminal law, such as the Indian Penal Code and other criminal laws.
The major goal of the criminal equity framework is to ensure that the trial is fair. When comprehension is taken, the case usually continues after a full trial, which either results in a Conviction or Acquittal. Prior to that, in a Summons case, the accused might be released under specific circumstances under Section 256 of the Code of Criminal Procedure.
It is the official courtroom’s responsibility to conduct a full-fledged trial of an accused brought before it in order to determine whether the accused is guilty or innocent.
Regardless, the court may clear or release the accused in accordance with the law, based on the nature of the alleged offence, a legitimate concern for equity, and the circumstances prevailing in the criminal case to allow the accused to improve or avoid legal maltreatment, to save time, or to keep a strategic distance from an extended prosecution.
Because the State is in charge of prosecuting the offender in the criminal justice system, the Public Prosecutor, who serves as a representative of the government in court and as a court official, plays a crucial role in the administration of justice.
Under Section 321, the Public Prosecutor has the authority to withdraw from prosecution at any time before the judgement is rendered with the approval of the court.
The Public Prosecutor or Assistant Public Prosecutor is the primary actor in the withdrawal from prosecution procedure, with the court acting as the supervisor. The government has no participation in this procedure, according to the clause itself.
However, in practise, the government is the executive branch in charge of prosecution and so has the last word. Because the State government appoints the Public Prosecutor, it has an agent-principal relationship with the government, which is the root of all interpretive and practical issues.
Understanding Section 321
The element of the Public Prosecutor’s withdrawal from prosecution is addressed in Section 321 of the Criminal Procedure Code of 1973. This section relates to the old Criminal Procedure Code Section 494. The new section differs from the old one in primarily two ways.
One, the word in-charge of a case was not contained in the previous part, which caused any public prosecutor to withdraw a case. Only the Public Prosecutor or Assistant Public Prosecutor in charge of the specific case may ask for withdrawal from prosecution under the new clause.
Second, Sections (i) to (iv) have been added to the new section to need the Central government’s consent for the Public Prosecutor to withdraw from prosecution in instances involving the Central government.
According to Section 321 of Criminal Procedure Code, the Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, 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; and, upon such withdrawal,
- If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
- If it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences:
Provided that where such offence:
- was against any law relating to a matter to which the executive power of the Union extends, or
- was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or
- involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
- was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case hag hot been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.
Some specific laws dealing with terrorist-related activities, such as POTA (repealed) and Unlawful Activities Prevention Act (UAPA), do not apply to Section 321 of Criminal Procedure Code per se, but the principle of judicial review, which is the essence of Section 321 Criminal Procedure Code, still applies.
Even though Section 321 does not apply in its entirety as worded in the Criminal Procedure Code, the concept of judicial review applies to all special legislation relating to the competence of the court to approve to a public prosecutor’s withdrawal application from prosecution.
If an application for withdrawal from prosecution is lodged before charges are drafted and the court agrees, the accused is freed from the offences for which he or she was charged, according to clause (a) of Section 321.
If an application for withdrawal from prosecution is submitted after the charges have been brought and the court agrees to the application, the accused is acquitted of the allegations against him or her.
Interpretive Issues in Section 321 of Criminal Procedure Code
Section 321 is divided into three analytical areas that have been addressed by the courts since the code’s inception.
The first question to consider is who can seek for a stay of prosecution. This topic contains a lot of tangled interpretation concerns.
For example, when the prosecutor or assistant public prosecutor as mentioned in section, what role does the government play in dictating the prosecutor’s decision, on what basis does the public prosecutor apply for withdrawal from prosecution, and how much influence does the government have on the prosecutor’s decision?
The consent of the court is the second interpretive problem. This topic has also received a lot of attention in the courts. It may appear straightforward at first glance, but the difficulties underlying the court’s approval are considerable.
For example, can the court consent to the application without providing reasons, may the court deny the application without providing reasons, and what does the court have to consider before consenting to the application?
The victim’s locus standi is the third interpretive difficulty. Although this is a critical issue, it is given less weight in interpretive arenas. The lawsuit was started because it harmed the victim first and later the society, but the State, in constructing the idea of Parens Patriae, conveniently ignores the victim’s concerns.
The state executive can be swayed by political factors that are contradictory to the public interest and request for a stay of prosecution. In order to oppose an application for withdrawal from prosecution, the victim or any other person need have locus standi before the court hearing the case.
Who can withdraw?
Only the public prosecutor or assistant public prosecutor in charge of a given case can ask for withdrawal from prosecution in that instance, as per Section 321. In addition, in the event of a private complaint, a public prosecutor cannot request for a withdrawal from prosecution.
Despite the fact that the provision offers no grounds for the Public Prosecutor to submit a withdrawal from prosecution, the Supreme Court read into the clause an important inherent requirement that withdrawal must be in the interest of the administration of justice.
It is the duty of the court in which the withdrawal application was filed to examine the reasons for the withdrawal and ensure that the withdrawal is not being sought for reasons unrelated to justice.
Furthermore, it is the court’s responsibility to ensure that the Public Prosecutor uses his or her free will rather than acting as a simply mechanical agent of the State government.
In a number of situations, the courts have entrusted public prosecutors with considerable responsibility to use their own judgement and, if necessary, to go against the State government’s position.
The truth, on the other hand, is more complicated. Except where specifically required by law, the provision envisions the free application of the intellect of the concerned public prosecutor without involvement from any government.
In Sheonandan Paswan v State of Bihar[1], on the other hand, the Supreme Court acknowledged that the Public Prosecutor is selected by the State Government and serves at the discretion of the government, making him more of a government agent than an independent official of the court. This statement of the Supreme Court is extremely close to the truth.
The courts have interpreted the situation as follows:
- The State government can give the Public Prosecutor instructions or opinions regarding the withdrawal of a case on grounds of policy, public justice, vexatious prosecution, and so on, but the Public Prosecutor must apply his free mind to the State government’s recommendation and then decide whether to withdraw or continue the prosecution.
- If he decides to withdraw, he must tell the court reasons and demonstrate that he used his free will to consider the matter.
- If, on the other hand, he decides to proceed with the prosecution, he will have no choice but to resign from his position.
As a result, the issue of the public prosecutor’s free application of mind while withdrawing from criminal prosecution is sensitive and fraught with practical difficulties.
The literal connotation that the public prosecutor or assistant public prosecutor is in charge of filing the application for withdrawal from prosecution appears to be a long way from the reality, in which the State government has taken a central role in deciding the outcome of the withdrawal from prosecution process.
Withdrawal from indictment of whom and in regard of which Offence?
Withdrawal from the indictment of any individual either all things considered or in respect of any somewhere around one of the offenses for which he is attempted. Considering that where such offense-
- Was against any regulation relating to an issue to which the authority force of the Union expands, or
- Was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946, or
- Incorporated the misappropriation or pulverization of, or mischief to, any property related with the Central Government, or
- Was presented by a person in the organization of the Central Government while acting or inferring to act in the arrival of his authority commitment, furthermore, the inspector responsible for the case has not been assigned by the Central Government he won’t, with the exception of assuming that he has been permitted by the Central Government to do all things considered, move the Court for its agree to pull back from the arraignment and the Court will, prior to agreeing consent, direct the investigator to make before it the approval permitted by the Central Government to pull back from the indictment.
Is withdrawal feasible up to certain point?
Before the judgement is stated, a request for withdrawal from prosecution can be submitted at any moment. So, between the time the Court takes cognizance of the matter and the time the Court, all things considered, articulates the judgement, the Public Prosecutor may file an application for withdrawal from prosecution.
In Rajendra Jain Vs. State[2] the Supreme Court has held that regardless of how offense is just offense by the Court of Session, the Court of Submitting Magistrate is skilful to offer agree to the public prosecutor to pull back from the indictment.
If an individual has been arraigned or indicted by trial Court and case is forthcoming under the careful attention of Appellate Court, by then, at this stage the Public Prosecutor cannot move an application under the careful attention of Appellate Court for withdrawal from indictment considering the fact that under Section 321 of the Criminal Procedure Code.
‘Court’ implies Trial Court, not Appellate Court and furthermore arraignment or indictment is made under the careful focus of a fundamental Court. Thus, the Public Prosecutor cannot move an application for withdrawal from arraignment under the careful focus of an Appellate Court.
Discretion of Public Prosecutor
Under the provision, the public prosecutor has complete authority in determining which cases to apply for withdrawal. Nonetheless, such discretion is not unchallengeable and, as stated in the section, is subject to judicial oversight.
The Supreme Court attempted to establish the guidelines within which the public prosecutor can exercise his or her discretion in the case of M.N. Sankarayarayanan Nair v P.V. Balakrishnan[3]. The court stated that the discretion is guided by the implied condition that the withdrawal be in the best interests of justice administration.
For example, the prosecution may be unable to gather sufficient evidence to establish charges against the accused, or withdrawal may be required to manage the law-and-order situation, or to maintain public peace and tranquilly, among other reasons.
In Rajender Kumar Jain v State[4], the Supreme Court held that were prosecuting a case result in or threatens to result in violence, such as mass agitations, sectarian violence, or student unrest, it is acceptable and in the public interest for the public prosecutor to withdraw from the case.
The court also stated that while considering whether to proceed with prosecution or withdraw from prosecution in situations that risk public safety, the state government is correct in withdrawing from prosecution.
The court determined that the narrower public interest of prosecuting the accused should be sacrificed in favour of the greater public interest of protecting society’s peace and tranquilly.
What is meant by “Public interest”?
The condition that a public prosecutor can request withdrawal from prosecution in the sake of securing greater public interest has proven to be ambiguous, and the government has often used this ambiguity to secure its self-serving political goals.
Although a comprehensive definition of public interest is difficult to come up with, courts have evaluated the executive’s determination on the magnitude of public interest based on the facts and circumstances of the case.
For example, in State of U.P. v III Additional District & Sessions Judge[5], the state government sought to drop charges against Phoolan Devi, a notorious lower caste woman dacoit who committed various crimes against higher caste people, including murder and dacoity, in order to teach them a lesson and prevent them from committing atrocities against lower caste people.
The prosecutor in charge requested to withdraw, claiming that the accused was compelled to conduct these acts as a result of other atrocities perpetrated against her by individuals of higher caste.
However, the court reasoned that withdrawing from prosecution in this case serves no public interest, and that doing so could lead to caste-based wars in which everyone believes he or she has the right to avenge any atrocities committed by others without recourse to lawful authorities, resulting in chaos and utter savagery.
In the case of State of Punjab v Union of India[6], the State administration decided to drop all charges against P&T Department personnel if there was no evidence of personal violence or property destruction. The Public Prosecutor filed a withdrawal application under Section 494 of the old Criminal Procedure Code at the time.
The application was allowed by the Magistrate, but the acquittal was overturned by the High Court. On appeal, the Supreme Court found that the public prosecutor might request withdrawal from prosecution in the public interest based on the State government’s position.
In this instance, the court decided that, first and foremost, it merely needs to act as a supervisor, ensuring that the office of public prosecutor is not being utilised for reasons other than public justice. Second, the start of the trial may cause public dissatisfaction among the workforce.
Court’s consent
What does the term “court” mean?
Although it may appear straightforward at first, answering the question when it is really asked might be difficult. Is it the court that conducts an investigation and refers the case to a court with competent jurisdiction, or the court that hears the case mentioned in the section?
Section 321 has no recommendations for the court to use in deciding whether or not to grant assent to the withdrawal application. As a result, the court has complete discretion in granting approval to the prosecutor in charge of the case’s motion for withdrawal from prosecution.
However, the Supreme Court has established guiding principles for courts to follow in granting consent to withdrawal applications via various decisions.
First, the court should provide consent only if it is persuaded that granting permission to withdraw from prosecution would serve the interests of justice and would not jeopardise the executive’s obligation to uphold and observe certain values.
A criminal case was filed against the defendants in Bansi Lal v Chandan Lal[7] under several provisions of the Indian Penal Code. After the charges were laid, the matter was referred to the Court of Sessions. At this point, the Public Prosecutor has filed a motion for withdrawal from prosecution on the grounds that the prosecution refuses to present evidence and continue the criminal procedures against the defendants.
The application was approved by the court. The High Court affirmed the trial court’s ruling on appeal. The Supreme Court ruled on appeal that the trial court cannot automatically grant the public prosecutor permission to withdraw from prosecution.
The court must determine whether the grounds for withdrawal are truly in the interests of justice and the public good. The court must also determine if the position of public prosecutor is being abused by the executive branch to serve a limited political objective.
Second, the court functions as a supervisor when it grants approval to the public prosecutor’s withdrawal from prosecution, and as a result, the court should not re-appreciate the grounds on which the public prosecutor chose to file for withdrawal.
The court, on the other hand, has a responsibility to investigate whether the public prosecutor used his discretion in making his decision. As a result, it is the courts’ vital obligation to analyse every motion for withdrawal from prosecution in light of the public prosecutor in charge of the case’s application of free mind.
Third, while the court is not obligated to investigate the reasons on why the public prosecutor in charge submitted the application, the court may do so to protect the public’s interests if the public prosecutor’s rationale fails the reasonable man test or is contrary to justice.
For example, in Abdul Karim v State of Karnataka[8], the Supreme Court refused to grant the public prosecutor in charge’s request for the court’s approval to withdraw from prosecution against several infamous offenders.
The Supreme Court stated that, while the court is not obligated to examine the grounds that led the public prosecutor in charge to apply for withdrawal from prosecution, it has the authority to do so if the public prosecutor’s reasoning appears to be perverse to public justice or not in accordance with the reasonable man standard.
Locus Standi of Victim
The locus of the victim, complainant, or any other person to challenge the public prosecutor in charge’s appeal for withdrawal from prosecution is not specified under Section 321.
In Sheonandan Paswan v State of Bihar, the appellant sought to the trial court to commence proceedings against the accused under section 302 of the Indian Penal Code, while the prosecutor applied to withdraw from the case. The appellant’s application was denied, and the public prosecutor in charge was given permission to withdraw from the case.
In the case of Subhash Chander v State[9], something similar transpired. The private complainant objected to the motion for withdrawal from prosecution in this instance, but it was allowed to be withdrawn.
When a private person who is the true victim of the crime is not entitled to object to the withdrawal application, it becomes a farce of justice. The state has the authority to prosecute the accused on behalf of society and the victim, but when the state fails to do so for a variety of reasons, the victim or a member of the community against whom the crime was committed, as an equal member of the community as the victim, should have the locus standi to challenge the withdrawal application.
There are certain situations that appear to be heading in the correct way. In M. Balakrishna Reddy v Principal Secretary to Govt. Home Dept.[10], the Andhra Pradesh High Court declared that an individual who is not a victim of the crime has the same right to oppose the withdrawal application as a victim of the crime.
Furthermore, the court noted that the third person is a member of the community against whom the offence was perpetrated, and so has locus standi to object to the withdrawal application.
The Supreme Court upheld the opposition leader’s locus standi in opposing a withdrawal motion from prosecution against a minister in V.S. Achuthanandan v R. Balakrishna Pillai[11] since no one else was opposing the application.
As a result, the current tendency appears to be in favour of recognising the locus standi of victims and third parties in opposing the motion for withdrawal from prosecution.
Conclusion
Withdrawal from indictment is a critical piece of the criminal method in India. The Public Prosecutor or the Assistant Public Prosecutor who is considered as authorities of the court and furthermore as the specialists or specialists of the state government accept a vital occupation in choosing withdrawal from the arraignment.
The equal imagined by the Public Prosecutor has, actually, become the wellspring of the issue in delivering this limit since the Public prosecutor is depended upon to fulfil the solicitations of both the specific pillars of larger part governs framework with full certainty which has all the earmarks of being quite far from this present reality.
The Public Prosecutor, from one perspective, is expected to help the court, as an authority of the court, in conveying reality to the front and afterward once more, as the administrator of the organization, expected by the council to address the case for its methodology.
As such, the watchfulness presented by the Section 321 onto the Public prosecutors or the Assistant Public Prosecutors have all the earmarks of being laid out not in them, but in the State governments considering the fact that as seen by the Supreme Court itself in Sheonandan Paswan case that ignoring Public analyst being an authority of the court, he also shares a relationship of specialist head with the state government and appropriately, he is expected to seek after the evaluation of the state government or leave.
Therefore, the approaching round trip impact of this is the open prosecutors all around surrender these discretionary powers before the state government for their activity and along these lines, finally, taking a risk with the open value.
Regardless, there is a safeguard anyway weak which gives the principles on-reason of which the open analyst can search for withdrawal from indictment. The fundamental condition being that such withdrawal should incite help of greater energy for open value.
The segment has similarly given more grounded help against this recently referenced stagger to the value transport system. This pad is the need of consent of the court. the courts’ consent is expected before a case may be pulled back from the indictment.
Taking everything into account, the part experiences ailment due to the shortfall of clearness as regards to the level of the watchfulness of the public prosecutor which handles the individual being referred to in the questionable circumstance wherein, he wants to either pick his activity or value and, sadly, inclined toward elective remaining parts the activity.
The judiciousness of public prosecutor should be characterized undeniably with the objective that he can practice his mindfulness exactly as expected in the law for the headway of value.
Edited by: Tanvi Mahajan, Publisher, Law Insider
References
Crpc Section 257 Withdrawal of Complaint
Disposal of Criminal cases without full trial
Withdrawal from Prosecution Under Section 321 CRPC
- Sheonandan Paswan v State of Bihar, 1987 AIR 877 ↑
- Rajendra Jain Vs. State, (1980)3 SCC 434 ↑
- M.N. Sankarayarayanan Nair v P.V. Balakrishnan, 1972 AIR 496 ↑
- Rajender Kumar Jain v State, 1980 AIR 1510 ↑
- State of U.P. v III Additional District & Sessions Judge, 1997 CriLJ 3021 ↑
- State of Punjab v Union of India, AIR 1987 SC 188 ↑
- Bansi Lal v Chandan Lal, AIR 1976 SC 370 ↑
- Abdul Karim v State of Karnataka, (2000) 8 SCC 710 ↑
- Subhash Chander v State, 1990 CriLJ 1217 ↑
- M. Balakrishna Reddy v Principal Secretary to Govt. Home Dept, 1999 (2) ALD 228 ↑
- V.S. Achuthanandan v R. Balakrishna Pillai, (1994) 4 SCC 299 ↑