CrPC Section 321 – Withdrawal From Prosecution

You might have heard that the accused is being prosecuted in the court. Have you ever thought about what it means? Prosecution is the process of trying someone in the court. It is the process through which the accused is charged with certain offences. The government lawyer levels the allegations against the accused. He leads the case against him. Prosecution involves levying charges against the accused, presentation of evidence, arguments, etc. The prosecution is made to ensure that the accused is liable for his actions. Thus, it aims to establish the guilt of the accused. But it also ensures that the proceedings are fair and justice is served.

Withdrawal From Prosecution In Criminal Cases

The prosecution works to make the right decision in the case. If the case circumstances are such that he can't be prosecuted successfully, the case can be withdrawn. This is called withdrawal from prosecution and not withdrawal of prosecution. The difference is that in withdrawal from prosecution, the prosecuting party takes a step back from the case, and the matter ends. While in withdrawal of prosecution, the prosecuting person separates himself from the case. On withdrawal from prosecution, the proceedings against the accused are paused for certain reasons and can't be continued further. The accused can walk out of court as a result. This provision is now covered under section 360 of the Bhartiya Nagarik Suraksha Sanhita, 2023.

Scope Of Section 321 In CrPC

Section 321 allows the withdrawal from prosecution. It generally applies to all criminal proceedings. Irrespective of the offence, if the offence is levelled against the accused by the state, Section 321 comes into the picture. The state isn't involved if the charge is made through a private complaint. Thus, Section 321 does not apply. In addition, the provision allows withdrawals to be made concerning certain offences or as a whole. It must be noted that for offences such as terrorism that are covered in separate acts, Section 321 doesn't become applicable.

Who Can File An Application For Withdrawal

The application can be filed by either the Public Prosecutor or the Assistant Public Prosecutor. These prosecutors represent the state in the court. Only then can they withdraw the prosecution representing the state. It must be noted that the court or the complainant can't withdraw the prosecution on their own. This power is only with the prosecution. Though no one except the prosecution has the power to withdraw, they can oppose the withdrawal of the prosecution.

When Can Withdrawal From Prosecution Be Made

The withdrawal application can be made anytime while the case is running. However, it must be made before the court pronounces the final judgment. The application for withdrawal of prosecution can be made in these cases:

• If considering the facts and evidence gathered, there are minimal chances of getting a successful prosecution of the accused.
• It seems that the accused was charged because of some personal motives or political agendas.
• The state has been unwise in this case. The case has been dragged on for too long.
• If the case is continued, it will impact public interest.

What forms public interest is not defined anywhere. But it must be remembered that if the case is such that it can cause disharmony among masses or cause disruption, then it falls within this category. If cases involve sensitive public policy and interest issues, they fall within this case.

Consent Of The Court

It must be noted that withdrawal from prosecution can be made only with the court's prior consent. The court has unlimited power to decide on these applications. However, it is not mandated to give its consent in every case. Instead, it should apply its judicial mind and then decide. More importantly, the court must determine that the judicial process is not used to serve the executive.

In certain situations, consent of the court isn't sufficient. There may be cases where the central government's permissions are also required. These are as follows:

• If the office with which the accused is charged relates to the execution powers of the Union,
• The Delhi Special Police Establishment was investigating the offence;
• The offence covered the misappropriation or destruction of property that belonged to the central government;
• An employee of the central government committed the offence.

Effect Of Withdrawal From Prosecution

Once the withdrawal has been made successfully, any allegations against the accused will be dissolved. He would be discharged for those offences if wages were not framed offences. He will be acquitted if a withdrawal is made, even framing of charge against the accused. This means that he can't be tried again for these offences as the principle of double jeopardy kicks in.

Case Laws On Withdrawal From Prosecution

Rajender Kumar v. State through Special Police Establishment (1980)

While explaining the provision, the court noted the public prosecutor's and the court's responsibility. Prosecutors should inform the court of the grounds for withdrawal. The court must also play an active role in withdrawal cases. It should accept the application, control it, and decide what should be done. The court must protect justice from being misled by the executive.

Sheo Nandan v. State of Bihar (1983)

The Apex Court opined that Section 321 allows the public prosecutor to withdraw the prosecution. However, before doing so, he should consider the facts and decide whether withdrawal is appropriate. He isn't only a state representative; he should also think independently.

Abdul Karim vs. the State of Karnataka (2002)

The Supreme Court held that an application of Section 321 can't be allowed merely because the state government has decided to withdraw prosecution. Orders under this provision are passed after examining the facts and circumstances of the case. The court has to see if the application suffers from impropriety or illegalities that would cause injustice to the parties.

State Of Kerala v. K. Ajith (2021)

The court laid down a few guidelines to govern the wide power of Section 321. These are:

• The power of applying lies with the prosecution. But the consent of the court is necessary.
• Withdrawal can be made for public justice.
• The prosecutor should act independently to form an opinion of withdrawal.
• The court must exercise its judicial mind and power to decide on the withdrawal application.
• The court should consider the seriousness of the crime, the facts, and the effect on public interest while deciding the withdrawal application.

Conclusion

Withdrawal from prosecution is a significant legal provision under Section 321 of the Criminal Procedure Code (CrPC), offering the prosecution the discretion to discontinue criminal proceedings under certain circumstances. This provision ensures that justice is served fairly by allowing the withdrawal of a case if it is deemed unwise, lacks sufficient evidence, or if continuing the case may affect public interest. However, this decision requires the court’s consent, ensuring that the power is not misused and that the judicial process remains unbiased and transparent. The court's role is essential in evaluating the appropriateness of such applications, balancing the interests of justice and fairness.

FAQs

Here are some frequently asked questions (FAQs) to help you understand the concept and implications of withdrawal from prosecution in criminal law:

Q1. What does "withdrawal from prosecution" mean?

Withdrawal from prosecution refers to the decision by the prosecution to discontinue a case against the accused. It does not mean withdrawing the accusation entirely, but rather halting the proceedings in court before a final judgment is passed.

Q2. Who has the power to withdraw a prosecution under Section 321 of CrPC?

The power to withdraw a prosecution lies with the Public Prosecutor or Assistant Public Prosecutor, who represents the state. The court must give its consent before the withdrawal is finalized.

Q3. Can the court reject a request for withdrawal from prosecution?

Yes, the court has the discretion to reject an application for withdrawal from prosecution. The court must apply its judicial mind to ensure the withdrawal is not made for improper or unjust reasons.

Q4. When can a withdrawal from prosecution be requested?

A withdrawal request can be made at any stage of the criminal proceedings, as long as it is before the court pronounces a final judgment. The request can be made if there is insufficient evidence, if continuing the case may harm public interest, or if the case is based on personal or political motives.

Q5. What happens if a prosecution is withdrawn?

If the prosecution is successfully withdrawn, the accused is discharged from the charges and cannot be tried again for the same offence due to the principle of double jeopardy. The case ends, and the accused is acquitted from those charges.

Ref:

https://www.drishtijudiciary.com/to-the-point/bharatiya-nagarik-suraksha-sanhita-&-code-of-criminal-procedure/withdrawal-from-prosecution-section-321-of-crpc

https://www.legalserviceindia.com/legal/article-1280-withdrawal-from-prosecution-under-section-321-crpc.html#google_vignette

https://articles.manupatra.com/article-details/Withdrawal-from-Prosecution-Section-321-of-the-CRPC

https://www.lawvidhi.com/withdrawal-from-prosecution-section-321-crpc/#google_vignette

https://ujala.uk.gov.in/files/ch08.pdf