Legal Provisions of Section 321 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Withdrawal from prosecution:
The section enables the Public Prosecutor or an Assistant Public Prosecutor, as the case may be, who is conducting the case, to withdraw from the prosecution which means retracting or refraining from proceeding with the prosecution any further.
ADVERTISEMENTS:
The section further requires that where the offence falls within any of the categories mentioned in sub-clauses (i) to (iv) of the proviso, the permission of the Central / State Government has to be obtained for moving an application for withdrawal from the prosecution by the Public Prosecutor. However, where the prosecution is being proceeded by a complainant on a private complaint, the Public Prosecutor is not entitled to apply for withdrawal from prosecution in such a case.
It must be pointed out that Section 321 provides for ‘withdrawal from prosecution’ and not the ‘withdrawal of the 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 a re-trial under Section 300 of the Code.
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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 —
ADVERTISEMENTS:
(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.
The section {i.e., Section 321) applies to every kind of inquiry and trial as also all cases which are capable of terminating either in a discharge or an acquittal according to the stage at which application for withdrawal is made.
ADVERTISEMENTS:
An offence may be exclusively triable by a Court of Session, but even then the committing Magistrate has the jurisdiction to give consent to Public Prosecutor to withdraw from the prosecution. The section is, however, not applicable to security proceedings under Section 107, CrPC because they do not terminate in discharge or acquittal of the accused.
The withdrawal from the prosecution on an application by the Public Prosecutor takes effect only after the Court gives its consent for the withdrawal after being satisfied with the material placed before it and the reasons which have prompted the Public Prosecutor to withdraw from prosecution.
While granting the permission for withdrawal, the Court must ensure that it would serve the ends of justice. The Court, while according consent under this section should record reasons therefore, so as to enable the revisional Court (i.e., High Court) to determine the propriety and correctness of the direction of the trial Court.
But the Supreme Court in its decision in V.S. Achutanandan v. Balkrishna Pillai, has held that it is not mandatory for the Court to make a reasoned order of withdrawal. Since the order of the Court granting, permission for the withdrawal from the prosecution is not an interlocutory order, therefore, it is subject to the revisional jurisdiction of the High Court. Where the accused was acquitted consequent to the withdrawal order made by the Court with its consent, the private party had no locus standi to move an application for revision of the order.
The amplitude of Section 321 is wide enough to enable the 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 has been charged.
It is now well established that the withdrawal from the prosecution by the Public Prosecutor is an executive function. The Government may direct the Public Prosecutor to withdraw from particular case, but he cannot be compelled by anyone, to do so.
However, from the practical stand point, it is difficult to subscribe to this view as rightly held by the Supreme Court in its decision in Shivnandan Paswan v. State of Bihar, The Court inter-alia, observed:
“Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the Government, Central or State, appointed for conducting in Court any prosecution or other proceedings on behalf of the Government concerned. So there is relationship of counsel and client between the Public Prosecutor and the Government. A Public Prosecutor cannot act without instructions of the Government; he cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government. Section 321 does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application under this section. On the contrary Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government.”
But the above decision has been reviewed by the Supreme Court wherein the Court categorically observed that a Public Prosecutor can withdraw the case at any stage of prosecution with the only limitation that the Court must have consented to it.
Reiterating this view, the Supreme Court has once again held in the case of Km. Sirilekha Vidyarthi v. State of U.P., that the statutory responsibility for deciding withdrawal from the prosecution solely vests with the Public Prosecutor and it cannot be circumscribed in favour of those who are above him (i.e., the Government).
The Public Prosecutor may avoid to withdraw from prosecution not only on the ground of insufficiency of evidence to sustain the charge but on other relevant grounds as well, such as public interest, peace and tranquillity, elimination of law and order problems which are likely to arise from communal riots, mass agitations, regional disputes and student unrest etc. The Government may also sometimes be required to drop the prosecution launched against certain offenders in the larger interests of the society.
In the case of S.K. Shukla v. State of Uttar Pradesh, the Supreme Court clarified that in withdrawal from prosecution the Public Prosecutor should not 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 not bound to accept the opinion of the Public Prosecutor and it is free to assess whether the prima facie case is made out or not. The Court, if satisfied, can also reject Public Prosecutor’s prayer of withdrawal from prosecution. In the instant case, the Court examined the matter and found that there was prima facie case to proceed against the accused persons under Section 4 (b) of the POTA and other provisions of the Explosives and Arms Act. Therefore, the sanction granted by the Government and application moved by Public Prosecutor for withdrawal of the cases could not be sustained.
Where a Magistrate permitted withdrawal of a case against a Police Inspector on the ground that departmental inquiry was already instituted and pending against him. the High Court set aside the withdrawal order holding that neither the Public Prosecutor nor the Court had applied their minds to :he circumstances justifying withdrawal.
In Phoolan Devi’s case i.e., State of U.P. v. Third Additional District & Sessions Judge, the Allahabad High Court upheld the order of the trial Court rejecting the request for consent for withdrawal from prosecuting the former woman dacoit on various charges as she belongs to a lower caste and had committed various heinous crimes to take revenge upon her enemies who had allegedly tortured her. The Public Prosecutor wanted withdrawal as proceeding further with the prosecution was likely to create a situation of caste-war in the State.
The consent of the Court for withdrawal under this section should be based on sound reasoning keeping in view the facts and circumstances of the case. Simply nonavailability of the accused or the fact that he cannot be served with summons has been held no justiciable ground for granting permission to withdrawal from prosecution.
The Supreme Court in Vijay Kumar Baldev Mishra v. State of Maharashtra held that while granting permission or refusing it, it is necessary that the designated Court should apply its mind in regard to grounds for withdrawal of prosecution in respect of any one or more of the offences for which the accused is tried. While filing application for withdrawal of prosecution, the Public prosecutor is also required to apply his mind and effect thereof in the society in the event such permission is granted by the Court.
In the instant case, the accused was being tried for murder under Section 302/307, I.P.C. as also under the Arms Act and TADA. The designated court while refusing to grant permission, expressed its opinion in the merits of the matter and effect of confessions made in terms of provisions of TADA.
Disposing of the appeal, the Apex Court held that expression of opinion in the merit of the matter and effect of confession thereon, by the designated Court was not warranted while refusing grant of permission for withdrawal of the prosecution.
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 In Subash Chandra v. State, the private complainant had opposed such withdrawal but his application was rejected both by the High Court as well as the Supreme Court.
The High Court of Andhra Pradesh has, however, held that a third party who has been aggrieved and suffered as a result of the offence sought to be withdrawn by the Public Prosecutor, has the right to oppose the withdrawal of prosecution.
There is no provision for appeal against the order passed under Section 321; hence the only remedy available is to invoke the revisional jurisdiction of the C cm of Session or the High Court under Section 397 of the Code.
In State v. L. Ganeshan, trial Court permitted withdrawal from prosecution in few cases on the application of the Public Prosecutor, at the instance of the Government of Tamil Nadu, but thereafter when another political party came to power, the Public
Prosecutor was directed to get the withdrawal cancelled and prosecution restored. The High Court of Madras held that the State Government which moved the applications for withdrawal from prosecution could not seek to set aside the order granting withdrawal, as it would lead to uncertainty as to the finality of the proceedings under Section 321.
