Section 321 CrPC-Withdrawal of Prosecution

Presented byAbsar Aftab Absar

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.

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.

Section 321 of CrPC

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.

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.

Distinction between Sec 320 and Sec 321

Once a Prosecution is launched it cannot be halted except for sound considerations

germane to public justice.

Section 321makes room for such consideration by enabling the Public Prosecutor to withdraw from prosecution with prior consent of court.

The objects are for promotion of public peace , public justice , long lasting security in a locality , harmony or for halting false and vexatious prosecution.

Object and Purpose

In Rajendra Kumar Jain v. State(AIR 1980 SC 15010) the Scope of the Section was

best interpreted by the Supreme Court.

1. Prosecution of an offender is the responsibility of Executive.

2. Withdrawal from prosecution is an executive function of the public Prosecutor.

3. Only public Prosecutor is having discretion to withdraw from Prosecution.

4. The Govt. may suggest him that he may withdraw but no one can compel him to do so.

5. Public Prosecutor cannot merely withdraw on the ground of paucity of evidence but on other relevant grounds i.e. for furtherance of public justice.

6. He is an officer of court and responsible to court.

7. Public Prosecutor must apply his mind independently as a free agent and should not be influenced by any extraneous considerations.

In Abdul Karim v. State of Karnataka (2000),Supreme Court held , for the application of this section the PP must act in good faith and exercise due discretion.

Scope and application

In State of Orissa v. Chandrika Mohapatra (AIR 1977 SC 903),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 Kutt (AIR 1939 Mad 190),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.

In Sanatan Ram v. State,1991 Cr LJ 758(ORI),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 state of Orissa v. Chandrika Mahapatra (AIR 1977 SC 903),court held two cases arising out of same incident against different accused ,if one withdrawn ,the other should also be withdrawn.

Scope and application(contd…)

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

independent officer like a Judge and is appointed by Government , thus he can only file a withdrawal application with prior approval of the Government.

In Km Srilekha Vidyarthi v . State of U.P. , 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 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.

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 Court of Session or the High Court under Section 397 of the Code.

Scope and application(contd…)

In Navnidas v. Kundalikaro (1979 Cr LJ 1242),Supreme Court held grounds like

time , money and chances of success as ‘Flimsy’ in case of withdrawal.

The permission for withdrawal from prosecution shall never be granted where such a withdrawal is against the public interest and administration of justice.

If withdrawals are allowed in a routine manner, the confidence of the public in the judicial system will be lost.

Refusal of Permission

In Abdul Karim v. State of Karnataka(2001), it was held that even if Government

ordered the prosecution , he he must satisfy the Court that he has applied his mind in good faith to all the relevant materials of the case and public interest will be advanced by such withdrawal.

In Mohd. Mumtaz v. Nandini Satpathy, (1987) Sheonandan Paswan v. State of Bihar, (1987) ,three questions were raised,

1. Under what circumstances can a prosecution be withdrawn? In other words, when can the State "sacrifice a pending case for a wider benefit"?

2. What is the degree of autonomy conferred on the Public Prosecutor in the process of withdrawal?

3. The concept of furtherance of public justice in the withdrawal process.

Unanimous view came out pointing towards an unwanted Political interference.

Power of Courts under Section 321

In accordance with the accusatory principle (Anklageprinzip), criminal court

proceedings cannot be initiated without a formal accusation (Anklageschrift) having been filed by the prosecutor.

The accusation describes the acts committed by the suspect, names the applicable provisions of the criminal law and sums up the evidence on which the accusation rests (Sect. 200 CCP).

Once the prosecutor has filed a formal accusation and the court has accepted it, the accusation cannot be withdrawn (Sect. 157 CCP; so-called principle of immutability).

Even if the prosecutor who represents the state at the trial comes to the conclusion that the charges are unfounded he cannot simply withdraw the case from the jurisdiction of the court. If this situation arises, he can – and is obliged to – ask the court to acquit the defendant, but the court can nevertheless convict if it evaluates the evidence differently.

If the court has issued a penal order proposed by the prosecutor, and the defendant has appealed, the prosecutor can then withdraw the charges (Sect. 411 subs. 3 CCP).

Public Prosecutor System in Germany

The German Criminal Procedure Law provides that the prosecution service is

legally and functionally responsible for the pre-trial stage and it is referred to as ‘the ruler of the investigative stage.’

’ It authorizes prosecutors to perform acts of investigation themselves or to request the police to do so.

They can also give general instructions to the police regarding how particular cases are to be handled and can set areas of priority of investigation.

The police are obliged to inform the prosecution service of their actions and to provide them with information in order to facilitate their decisions for further investigatory actions.

Court proceedings are dominated by the presiding judge. It is the presiding judge who determines, in performance of his duty, to clear up the facts and to find the truth (Sect. 244 subs. 2 CCP).

Public Prosecutor System in Germany (contd…)

In order to determine the truth, the court shall extend, on its own motion, the

taking of evidence to all facts and items of proof that are relevant to the judgement. The presiding judge determines what evidence is presented in court, and

interrogates witnesses and experts. The prosecution as well as the defense have the right to request the calling of

additional witnesses, and the court can deny such requests only for a short list of reasons (Sect. 244 subs. 3 CCP).

Having submitted a list of witnesses it deemed relevant along with the formal accusation, the prosecution rarely makes use of this right. Although the CCP provides for the option of cross-examination of witnesses by the prosecutor and defense counsel (Sect. 239 CCP), this option is never used in practice.

All parties i.e. the prosecutor, the defendant, defense counsel, and counsel for the victim if the victim has joined the prosecution, have the right to subsequently ask questions of the defendant if he has chosen to make a statement as well as of any witness and expert (Sect. 240 subs. 2 CCP).

Public Prosecutor System in Germany (contd…)

This right to ask questions cannot be curtailed by the court except in cases of blatant

abuse; the court can however reject individual questions that are inappropriate or clearly irrelevant (Sect. 241 subs. 2 CCP).

The prosecutor can thus interrogate the defendant or any witness to the extent he deems necessary. In practice, most of the questioning is usually done by the presiding judge, and the prosecutor tends to remain silent or to ask just a few additional questions in order to clarify points particularly relevant to the prosecution.

The prosecutor is asked by the presiding judge to deliver the summing up (Plädoyer), i.e., to present the evidence and request a sentence, when the taking of evidence has been concluded (Sect. 258 subs. 1 CCP). The prosecutor is obliged to make a concluding statement, and to specify the charges of which he seeks conviction as well as the recommended sentence.

The court is not bound in any way by the prosecutor’s request. Many judges tend to remain a little below the sentence recommended by the prosecution, but it also occurs that the court imposes a more severe sentence than that requested by the prosecutor.

Public Prosecutor System in Germany (contd…)

Indian Judiciary has not gone full-fledged in deciphering the complete role of a

Public Prosecutor. He is made a non-entity at the entrance of a public prosecution but considered him

to be a pivotal player at the exits of a case. In the terms of Section 173 of Cr.P.C., it is said, the prosecutor has absolutely no

discretionary power to decide about launching prosecutions but he is pivotal in withdrawing prosecutions.

The Prosecutor has absolutely no role in deciding to launch a prosecution or not to launch a prosecution on a case investigated by Police.

The Police are not under a statutory duty to consult the prosecutor in initiating prosecutions before the courts. The decision to file a case before court is with police.

A case that came up to court without any scrutiny on part of the prosecutor has to be so meticulously scrutinised by the prosecutor if the case is to be withdrawn.

Conclusion

For insufficient evidence, the prosecutor cannot advise the police not to file a

charge sheet but on the same ground he can seek withdrawal from prosecution after it is filed before the court.

Even if the State does not want to prosecute a pending trial case, the prosecutor has to conduct prosecution if court does not give its consent for withdrawal.

Conclusion(contd…)