top of page
Search
  • LLC

Section 321

In Jahira Habibulla H. Sheikha and Another vs. State

of Gujarat and others 2004 Supreme Court Cases (Cri)

999, Hon’ble Apex Court has held that given direction about

role of the public prosecutor it was held in para 43 as under:

“43. The courts have to take a participatory role in a trial.

They are not expected to be tape recorders to record

whatever is being stated by the witnesses. Section 311 of

the Code and Section 165 of the Evidence Act confer was

and wide powers on presiding officers of court to elicit all

necessary materials by playing an active role in the

evidence-collecting process. They have to monitor the

proceedings in aid of justice in a manner that something,

which is not relevant, is not unnecessarily brought into

record. Even if the prosecutor is remiss in some ways, it

can control the proceedings effectively so that the

ultimate objective i.e. truth is arrived at. This becomes

more necessary where the court has reasons to believe

that the prosecuting agency or the prosecutor is not

acting in the requisite manner. The court cannot afford

to be wishfully or pretend to be blissfully ignorant or

oblivious to such serious pitfalls or dereliction of duty on

the part of the prosecuting agency. The prosecutor who

does not act fairly and acts more like a counsel for the

defence is a liability to the fair judicial system, and courts

could not also play into the hands of such prosecuting

agency showing indifference or adopting an attitude of

total aloofness.” Can a private person oppose the application for withdrawal ? It is settled law that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. It is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A. R. Antulay v. R.S. Nayak , Supreme Court pointed out that "punishment of the offender in the interests of the society being one of the objects behind penal statute enacted for larger good of society, the right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi". Court observed that locus standi of the complainant is a concept foreign to criminal jurisprudence. Now if any citizen can lodge a first information report or file a complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, we do not see why a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiation of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. If the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong, any member of the society must have locus to initiate a prosecution as also to resist withdrawal of such prosecution, if initiated. any person who is interested in cleanliness of public administration and public morality would be entitled to file a complaint, as held by this Court in A. R. Antulay v. R. S. Nayak and equally he would be entitled to oppose the withdrawal of such prosecution if it is already instituted. Are Motivations of such complainant are immaterial ? in criminal law the only criterion is whether his allegations are true or not ? that can only be determined at the trial . It was rightly observed by Krishna Iyer, J. in State of Punjab v. Gurdial Singh

If the use of power is for the fulfilment of a legitimate object, the actuation or catalisation by malice is not regicidal". The same principle must obviously apply where a person is opposing withdrawal of prosecution against an accused. His political motivation or vendetta cannot justify grant of consent for withdrawal if otherwise it is not legitimate or justified. Successive ministry may order probe against the earlier ministry , merely by order of probe into corruption it cannot be held that its a political vendetta :- When a Ministry goes out of office, its successor may consider any glaring charges and may, if justified, order an inquiry. Otherwise, each Ministry will become a law unto itself and the corrupt conduct of its Ministers will remain beyond scrutiny. One thing is certain that no unfettered or unrestricted power is conferred on the Public Prosecutor when we refer to Public Prosecutor, it also includes Assistant Public Prosecutor to apply for withdrawal from the prosecution. It is obvious that the power conferred on the Public Prosecutor to withdraw from the prosecution must be a controlled on guided power or else it will fall foul of Article 14 of the Constitution. Power under section 321 can be exercised only with the consent of the Court so that the Court can ensure that the power is not abused or misused or exercised in an arbitrary or fanciful manner. Once the charge-sheet is filed and the prosecution is initiated, it is not left to the sweet will of the State or the Public Prosecutor to withdraw from the prosecution. The Court is entrusted with control over the prosecution and as pointed out by Krishna Iyer, J. in Subhash Chander v. State . "The even course of criminal justice cannot be thwarted by the Executive however high the accused, however sure the Government feels a case is false, however unpalatable the continuance of the prosecution to the powers-that-be who wish to scuttle Court justice because of hubris, affection or other noble or ignoble consideration." Once the prosecution is launched, its relentless course cannot be halted except on sound considerations germane to public justice. And again, to quote the words of Krishna Iyer, J. in the same case, "the Court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the public prosecutor." The Public Prosecutor cannot therefore withdraw from the prosecution unless the Court before which the prosecution is pending gives its consent for such withdrawal. This is a provision calculated to ensure non-arbitrariness on the part of the Public Prosecutor and compliance with the equality clause of the Constitution. Grounds for withdrawal :- Public Prosecutor in withdrawing from the prosecution and this safeguard is that the Public Prosecutor can apply for withdrawal only on the basis of certain legitimate grounds which are germane or relevant to public justice. The essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice. Public prosecutor is the primary authority to decide on withdrawal , Court is to perform the judicial function to see if the consent has been exercised for the greater good of administration of justice :- in Balwant Singh v. State of Bihar ( Equivalent citations: 1977 AIR 2265, 1978 SCR (1) 635)

the view that found favour was that the Public Prosecutor is the primary authority to decide on the question of withdrawal from the prosecution. Supreme Court speaking through Krishna Iyer, J. observed in this case:-


The statutory responsibility for deciding upon withdrawal squarely vests on the public prosecutor. It is non-negotiable and cannot be bartered away in favour of those who may be above him on the administrative side. The Criminal Procedure Code is the only matter of the public prosecutor and he has to guide himself with reference to Criminal Procedure Code only.... Here, the Public Prosecutor is ordered to move for withdrawal. This is not proper for a District Magistrate to do. Indeed, it is not proper to have the public prosecutor ordered about. It is entirely within the discretion of the public prosecutor. It may be open to the District Magistrate to bring to the notice of the Public Prosecutor and suggest to him to consider whether the prosecution should be withdrawn or not. He cannot command where he can only commend.


This decision for the first time made the Public Prosecutor autonomous of the Executive in so far as withdrawal from the prosecution is concerned and held that the Public Prosecutor must apply his mind and come to his own decision whether to apply for withdrawal or not, irrespective of the opinion or advice of the Executive. The functionary clothed by the Code with the power to withdraw from the prosecution is the Public Prosecutor. The Public Prosecutor is not the executive, nor a flunkey of political power. Invested by the statute with a discretion to withdraw or not to withdraw, it is for him to apply an independent mind and exercise his discretion. In doing so, he acts as a limb of the judicative process, not as an extension of the executive.

Government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on grounds of policy or reasons of public interest relevant to law and justice in their larger connotation and request the public prosecutor to consider whether the case or cases may not be withdrawn. Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and the responsible position of Government, which in the last analysis, has to maintain public order and promote public justice. But the decision to withdraw must be his.

The Public Prosecutor is an officer of the Court, as indeed every advocate practising before the Court is, and he owes an obligation to the Court to be fair and just: he must not introduce any personal interest in the prosecution nor must he be anxious to secure conviction at any cost. He must present the case on behalf of the prosecution fairly and objectively and as pointed out by Supreme Court in State of Bihar v. Ram Naresh Pandey he is bound to assist the Court with his fairly considered view and the fair exercise of his judgment. But at the same time it must be noted that he conducts the prosecution on behalf of the Central Government or the State Government, as the case may be, and he is an advocate acting on behalf of the Central Government or the State Government which has launched the prosecution. How is the public prosecutor to deal with a direction for withdrawal of prosecution by government? Sheonandan Paswan vs State Of Bihar And Ors AIR 1987 SC 877 If the Government takes a decision to withdraw from the prosecution and communicates such direction to the Public Prosecutor. The Public Prosecutor would inter alia consider the grounds on which the Government has taken the decision to withdraw from the prosecution and if he is satisfied that these grounds are legitimate, he may file an application for withdrawal from the prosecution. If on the other hand he takes the view that the grounds which have been given by the Government are not legitimate he has two options available to him. He may inform the Government that in his opinion, the grounds which have weighed with the Government are not valid and that he should be relieved from the case and if this request of his is not granted, he may tender his resignation, or else, he may make an application for withdrawal from the prosecution as directed by the Government and at the hearing of the application he may offer his considered view to the Court that the application is not sustainable on the grounds set out by him and leave it to the Court to reject the application. There is nothing wrong in the Public Prosecutor being advised or directed by the Government to file an application for withdrawal from the prosecution and the application for withdrawal made by him pursuant to such direction or advice is not necessarily vitiated. The Public Prosecutor can of course come to his own independent decision that the prosecution should be withdrawn but ordinarily if he is wise and sensible person he will not apply for withdrawal without consulting the Government because it is the Government which has launched the prosecution and is prosecuting the accused. Theoretically, of course, he can make an application for withdrawal from the prosecution without consulting the Government and he cannot be accused of any illegality for doing so and the Court may give its consent for such withdrawal but in that event the Public Prosecutor would run the risk of incurring the displeasure of the Government which has appointed him. If the Public Prosecutor seeks the permission of the Government for withdrawal from the prosecution and the Government grants such permission to him and on the basis of such permission he applies for withdrawal the application cannot be said to be vitiated. The proviso to Section 321 in fact contemplates in so many terms that in certain categories of offences the Public Prosecutor appointed by the State Government cannot move the Court for its consent to withdraw from the prosecution without the permission of the Central Government. There is no danger of abuse or misuse of power by the Government inherent in this process because there are two principal safeguards against any such abuse or misuse of power by the Government: one is that the application must be based on grounds which advance public justice and the other is that there can be no withdrawal without the consent of the Court. what are the grounds on which the Public Prosecutor can apply for withdrawal from the prosecution? These grounds have been variously stated in the decisions of Supreme Court but the basic principle underlying all these grounds is that the withdrawal can be sought only for furthering the cause of public justice. The paramount consideration must always be the interest of administration of justice. That is the touchstone on which the question must be determined whether an application for withdrawal of the prosecution can be sustained. Supreme Court tried to formulate several instances where the cause of public justice would be served better by withdrawal from the prosecution. It was observed by Supreme Court in M. N. Sankaranarayanan v. P. V. Balakrishnan that an application for withdrawal from the prosecution may be made on the ground that "it will not be possible to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or in any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case." Court also pointed out in State of Orissa v. C. Mohapatra that "it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution." It was also emphasised by Supreme Court in Subhash Chander v. State that "justice cannot be allowed to be scuttled by the Public Prosecutor or the State because of hubris affection or other noble or ignoble considerations."Supreme Court also observed in R. K. Jain v. State :


"In the past we have often known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest, etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter productive. An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched."


It will thus be seen that the Public Prosecutor cannot maintain an application for withdrawal from the prosecution on the ground that the Government does not want to produce evidence and proceed with the prosecution against the accused or that the Government considers that it is not expedient to proceed with the prosecution. The Public Prosecutor has to make out some ground which would advance or further the cause of public justice. If the Public Prosecutor is able to show that he may not be able to produce sufficient evidence to sustain the charge, an application for withdrawal from the prosecution may be legitimately made by him. But there are two clarifications which are to be introduce where the prosecution is sought to be withdrawn on the ground of insufficiency of evidence :- 1.The first qualification is that where a charge has been framed by the Court either under Section 228 or Section 240, Criminal P.C., 1973, it would not be open to the Public Prosecutor to apply for withdrawal from the prosecution on the ground of insufficiency of evidence in support of the prosecution. The reason is that under S. 228 a charge can be framed by the Court only if the Court is of opinion that there is ground for presuming that the accused has committed an offence and so also under Section 240 the Court can frame a charge only if it is of opinion that there is ground for presuming that the accused has committed an offence. The Court in both these cases applies its mind to the material consisting of the police report and the documents sent with it under Section 173 and comes to a conclusion that a prima facie case has been made out against the accused and the charge should therefore be framed. When the Court has come to this conclusion after full consideration and framed a charge, it is difficult to see how on the same material the Court can be persuaded to hold that there is not sufficient evidence to sustain the prosecution. Bansi Lal v. Chandan Lal that "if the material before the Additional Sessions Judge was considered sufficient to enable him to frame the charges against the respondents, it is not possible to say that there was no evidence in support of the prosecution case."; So also in Balwant Singh v. State Suoreme Court reiterated that "the State should not stultify the Court by first stating that there is a true case to be tried and then make volte face to the effect that on a second investigation the case has been discovered to be false". ( Observation in Sheonandan Paswan vs State Of Bihar And Ors AIR 1987 SC 877 approved principle of this proposition)

2.The second qualification which must introduce relates to a situation where a charge-sheet has been filed but charge has not been framed in a warrant case instituted on police report.

when a warrant case instituted on a police report comes before the Court, the Court is required to consider only the police report and the documents sent along with it and the Court may make such examination, if any, of the accused as it thinks necessary and on the basis of such material if the Court, after giving the prosecution and the accused an opportunity of being heard, considers the charge against the accused to be groundless, the Court is bound to discharge the accused. What the Court, therefore, does while exercising its function under Section 239 is to consider the police report and the document sent along with it as also any statement made by the accused if the Court chooses to examine him. And if the Court finds that there is no prima facie case against the accused the Court discharges him. But that is precisely what the Court is called upon to do when an application for withdrawal from the prosecution is made by the public prosecutor on the ground that there is insufficient or no evidence to support the prosecution. There also the Court would have to consider the material placed before it on behalf of the prosecution for the purpose of deciding whether the ground urged by the public prosecutor for withdrawal of the prosecution is justified or not and this material would be the same as the material before the Court while discharging its function under Section 239. If the Court while considering an application for withdrawal on the ground of insufficiency or absence of evidence to support the prosecution has to scrutinise the material for the purpose of deciding whether there is in fact insufficient evidence or no evidence at all in support of the prosecution, the Court might as well engage itself in this exercise while considering under Section 239 whether the accused shall be discharged or a charge shall be framed against him. It is an identical exercise which the Court will be performing whether the Court acts under Section 239 or under Section 321. Hence , if in a warrant case instituted on a police report the public prosecutor should be entitled to make an application for withdrawal from the prosecution on the ground that there is insufficient or no evidence in support of the prosecution. The Court will have to consider the same issue under Section 239 and it will most certainly further or advance the case of public justice if the Court examines the issue under Section 239 and gives its reasons for discharging the accused after a judicial consideration of the material before it, rather than allow the prosecution to be withdrawn by the Public Prosecutor. When the prosecution is allowed to be withdrawn there is always an uneasy feeling in the public mind that the case has not been allowed to be agitated before the Court and the Court has not given a judicial verdict. But, if on the other hand, the Court examines the material and discharges the accused under Section 239, it will always carry greater conviction with the people because instead of the prosecution being withdrawn and taken out of the ken of judicial scrutiny the judicial verdict based on assessment and evaluation of the material before the Court will always inspire greater confidence. Since the guiding consideration in all these cases is the imperative of public justice and it is absolutely essential that justice must not only be done but also appear to be done. Hence , in a warrant case instituted on a police report it should not be a legitimate ground for the public prosecutor to urge in support of the application for withdrawal that there is insufficient or no evidence in support of the prosecution. The Court in such a case should be left to deckle under Section 239 whether the accused should be discharged or a charge should be framed against him. In State of Orissa v. C. Mohapatra - that in a given case it may not be "conducive in the interest of justice to continue the prosecution...since the prosecution with the possibility of conviction" may rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere which has been restored. We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution. This was the ground on which the Court in State of Orissa v. C. Mohapatra (supra) allowed withdrawal of the prosecution in a case where the incident resulting in the commission of the offence had arisen out of rivalry between two trade unions but since the date of the incident calm and peaceful atmosphere prevailed in the industrial undertaking. There may be broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long lasting security in a locality, of order in a disorderly situation or harmony in a factious milieu which may legitimately persuade the State to "sacrifice a pending case for a wider benefit". The imperative of public justice may in such cases transcend and overflow the legal justice of a particular litigation. In Balwant Singh v. State of Bihar : "...communal feuds which may have been amicably settled should not re-erupt on account of one or two prosecutions pending. Labour disputes which, might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution."


These are broadly the considerations which can be brought under the rubric of public justice so as to justify an application for withdrawal from prosecution. But, of course, we must make it clear that in this area no hard and fast rule can be laid down nor can any categories of cases be defined in which an application for withdrawal of the prosecution could legitimately be made. It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice. When the application for consent to the withdrawal from the prosecution comes for consideration, the Court has to decide whether to grant such consent or not. The function which the Court exercises in arriving at this decision, as pointed out by Supreme Court in State of Bihar v. Ram Naresh (decided on 31 January, 1956 by Supreme Court) , is a judicial function. The Court has to exercise its judicial discretion with reference to such material as is then available to it and in exercise of this discretion the Court has to satisfy itself that the executive function of the public prosecutor has not been improperly exercised and that the grounds urged in support of the application for withdrawal are legitimate grounds in furtherance of public justice. The discretion has not to be exercised by the Court mechanically and the consent applied for has not to be granted as a matter of formality or for the mere asking. The Court has to consider the material placed before it and satisfy itself that the grant of consent would serve-the interest of justice. That is why this Court in State of Bihar v. Ram Naresh examined the entire material which was available to it for the purpose of coming to the conclusion that there was no evidence worth the name on the basis of which the prosecution could be sustained against the accused Mahesh Desai. Supreme Court pointed out that consent is not to be lightly given on the application of public prosecutor "without a careful and proper scrutiny of the grounds on which the application for consent is made". It was emphasised bythis Court that in these matters the public prosecutor exercises discretionary functions in respect of which the initiative is that of the executive but the responsibility is that of the Court.this Court again reiterated in M. N. Sankaranarayanan Nair v. P. V. Balakrishnan , that the Court must satisfy itself that the executive function of the public prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice and added that the Court may give its permission only if it is satisfied on the materials placed before it that the grant of consent subserves the administration of justice. The same view has been taken in all the subsequent cases and it must now be regarded as well settled that the Court while considering whether to grant consent or not must not accept the ipse dixit of the public prosecutor and content itself by merely examining whether the public prosecutor has applied an independent mind but the Court must satisfy itself not only that the grounds are germane or relevant to advancement of public justice but also whether the grounds in fact are satisfactorily established. The ultimate test which must be applied by the Court in order to determine the validity of the grounds in a particular case is that the requirement of public justice outweighs the legal justice of that case so that withdrawal from the prosecution could be permitted in the larger interest of public justice. The same considerations which we have discussed while determining what are the legitimate grounds on which an application may be made by the public prosecutor for withdrawal from the prosecution must also apply in guiding the Court as to whether consent for withdrawal of the prosecution should be granted or not. We may again emphasise that the imperative of public justice provides the only relevant consideration for determining whether consent should be granted or not. It is not possible to provide an exclusive definition of what may be regarded as falling within the imperative of public justice nor is it possible to place the concept of public justice in a strait-jacket formula. Every case must depend on its peculiar facts and circumstances because there may be a myriad situation where this question may have to be considered by the Court. The paramount consideration must be the requirement of public justice and some of the grounds which would bring the case within the fabric of public justice have already been discussed by us in the preceding paras and we need not repeat them. The same grounds may be regarded as germane and relevant to the requirement of public justice and if they exist, the Court would be justified in granting consent to withdrawal from the prosecution.


Time line of cases under 321 (important ones) :- Decisions of this Court have made clear the functional dichotomy of the Public Prosecutor and the Court. In the State of Bihar v. Ram Naresh Pandey, the Court while considering s. 494 of the old Code explained:


"The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. ........ The function of the Court, therefore, in granting its consent may well be taken to be a judicial function. It follows that in granting the consent the Court must exercise a judicial discretion. But it does not follow that the discretion is to be exercised only with reference to material gathered by the judicial method. Otherwise the apparently wide language of s. 494 would become considerably narrowed down in its application. In understanding and applying the section two main features thereof have to be kept in mind. The initiative is that of the Public Prosecutor and what the Court has to do is only to give its consent and not to determine any matter judicially. ..... The judicial function.... .. implicit in the exercise of the judicial discretion for granting the consent would normally mean that the Court has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. In the context it is right to remember that the Public Prosecutor (though an executive Officer ......) is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with the fairly- considered view and the Court is entitled to have the benefit of the fair exercise of his functions".

The Court also appreciated that in this Country the scheme of the administration of Criminal Justice places the prime responsibility of prosecuting serious offences on the executive authorities. The investigation, including collection of the requisite evidence, and the prosecution for the offence with reference to such evidence were the functions of the executive, and in that particular segment the power of the Magistrate was limited and intended only to prevent abuse.


In M. N. Sankaranarayanan Nair v. P. V. Balakrishnan & Ors. the Court while reiterating decision that the Court granting permission for withdrawal should satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes, observed that the wide and general powers conferred on the Public Prosecutor to withdraw from the prosecution have to be exercised by him "in furtherance of, rather than as a hindrance to the object of the law" and that the Court while considering the request to grant permission should not do so as "a necessary formality-the grant of it for the mere asking".


In State of Orissa v. Chandrika Mohapatra & Ors. the Court said:


"We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution".

In Balwant Singh & Ors. v. State of Bihar, the independent role of the Public Prosecutor in making an application for withdrawal from a prosecution was emphasised. It was pointed out that statutory responsibility for deciding upon withdrawal vested in the Public Prosecutor and the sole consideration which should guide the Public Prosecutor was the larger factor of the administration of justice and neither political favour nor party pressure or the like. Nor should he allow himself to be dictated to by his administrative superiors to withdraw from the prosecution. The Court also indicated some instance where withdrawal from prosecution might be resorted to independently of the merits of the case:


"Of course, the interests of public justice being the paramount consideration they may transcend and overflow the legal justice of the particular litigation. For instance, communal feuds which may have been amicably settled should not re-erupt on account of one or two prosecutions pending. Labour disputes which, might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution. Other instance also may be given".

In Subhash Chander v. The State (Chandigarh Admn.) & Ors. the Court once again emphasised the independence of the Public Prosecutor in the matter of seeking to withdraw from the prosecution. It was observed "Any authority who coerces or orders or pressures a functionary like the Public Prosecutor, in the exclusive province of his discretionary powers, violates the rule of law, and any Public Prosecutor who bends before such command betrays the authority of his office". However, it was indicated:


"Maybe, Government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on grounds of policy or reasons of public interest relevant to law and justice in their larger connotation and request the Public Prosecutor to consider whether the case or cases may not be withdrawn. Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and the responsible position of Government which, in the last analysis, has to maintain public order and promote public justice. But the decision to withdraw must be his.

A reference was made to some considerations which may justify withdrawal from prosecution. It was said:


"The fact that broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long-lasting security in a locality, of order in a disorderly situation or harmony in a faction milieu, or halting a false and vexatious prosecution in a court, persuades the Executive, pro bono publico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrate or Minister. The concurrence of the court is necessary. The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding as is alleged in this case, may well be a relevant ground for withdrawal. For the court should not be misused to continue a case conclusively proved to be a counterfeit. This statement of the law is not exhaustive but is enough for the present purpose and indeed, is well-grounded on precedents". Rajendra Kumar Jain Etc vs State Through Special Police ... on 2 May, 1980

elaborated on the principles under section 321 :-


1. Under the scheme of the Code prosecution of an offender for a serious offence is primarily the responsibility of the Executive.


2. The withdrawal from the prosecution is an executive function of the Public Prosecutor.


3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.


4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.


5. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes .

6. The Public Prosecutor is an officer of the Court and responsible to the Court.


7. The Court performs a supervisory function in granting its consent to the withdrawal.


8. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.


it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its 'Minister of Justice'. Both have a duty to protect the administration of criminal justice against possible abuse or misuse by the Executive by resort to the provisions of s. 361 Criminal Procedure Code. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case.


Paucity of evidence is not the only ground on which the Public Prosecutor may withdraw from the prosecution. In the past we have often known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter-productive. An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched. In such matters who but the Government, can and should decide in the first instance, whether it should be baneful or beneficial to launch or continue prosecutions. If the Government decides that it would be in the public interest to withdraw from prosecutions, how is the Government to go about this task ?


Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the Court that has to give its consent to such withdrawal. Rightly too, because the independence of the judiciary so requires it. Now, the Public Prosecutor is an Officer of the Court. He sets the criminal law in motion in the Court. He conducts the prosecution in the Court for the people. So it is he that is entrusted with the task of initiating the proceeding for withdrawal from the prosecution. But, where such large and sensitive issues of public policy are involved, he must, if he is right minded, seek advice and guidance from the policy-makers. His sources of information and resources are of a very limited nature unlike those of the policy- makers. If the policy-makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentus public policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the Court to say that the initiative came from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind. Nor can there be any quibbling over words. If ill-informed but well-meaning bureaucrats choose to use expressions like "the Public Prosecutor is directed" or "the Public Prosecutor is instructed", the Court will not on that ground alone stultify the larger issue of Public Policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution. What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy. The Court, in such a situation is to make an effort to elicit the reasons for withdrawal and satisfy itself, that the Public Prosecutor too was satisfied that he should withdraw, from the prosecution for good and relevant reasons. The law as it stands today in relation to applications under Section 321 is laid down by the majority judgment delivered by Khalid, J. in the Constitution Bench decision of Supreme Court in Sheonandan Paswan v. State of Bihar & Ors., [1987 (1) SCC 288]. It is held therein that when an application under Section 321 is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. What the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material and, on such consideration, must either give consent or decline consent. The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If, on a reading of the order giving consent, a higher court is satisfied that such consent was given on an over all consideration of the material available, the order giving consent has necessarily to be upheld. Section 321 contemplates consent by the court in a supervisory and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor and in furtherance of public interest. Section 321 enables the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by a consent from the court on a consideration of the material before it. What is necessary to satisfy the section is to see that the Public Prosecutor has acted in good faith and the exercise of discretion by him is proper. Supreme Court of India

Abdul Karim Etc. Etc vs State Of Karnataka & Others Etc. ... on 7 November, 2000 The law, therefore, is that though the Government may have ordered, directed or asked a Public Prosecutor to withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to all the relevant material and, in good faith, to be satisfied thereon that the public interest will be served by his withdrawal from the prosecution. In turn, the court has to be satisfied, after considering all that material, that the Public Prosecutor has applied his mind independently thereto, that the Public Prosecutor, acting in good faith, is of the opinion that his withdrawal from the prosecution is in the public interest, and that such withdrawal will not stifle or thwart the process of law or cause manifest injustice.


It must follow that the application under Section 321 must aver that the Public Prosecutor is, in good faith, satisfied, on consideration of all relevant material, that his withdrawal from the prosecution is in the public interest and it will not stifle or thwart the process of law or cause injustice. The material that the Public Prosecutor has considered must be set out, briefly but concisely, in the application or in an affidavit annexed to the application or, in a given case, placed before the court, with its permission, in a sealed envelope. The court has to give an informed consent. It must be satisfied that this material can reasonably lead to the conclusion that the withdrawal of the Public Prosecutor from the prosecution will serve the public interest; but it is not for the court to weigh the material. The court must be satisfied that the Public Prosecutor has considered the material and, in good faith, reached the conclusion that his withdrawal from the prosecution will serve the public interest. The court must also consider whether the grant of consent may thwart or stifle the course of law or result in manifest injustice. If, upon such consideration, the court accords consent, it must make such order on the application as will indicate to a higher court that it has done all that the law requires it to do before granting consent. Rahul Agarwal vs Rakesh Jain & Anr on 18 January, 2005

Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321 Code of Criminal Procedure is to be carefully exercised by the Court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished. Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same. In this case no inquiry was made out to find why case remained pending for more than 7 years , it just mentioned that accused continually suffered prosecution and it cause mental agony and harrassment. The judge disclose no other particular reasons for withdrawal of prosecution. Also , the prosecution evidence was about to be over at any point of time , the permission to withdraw at that stage was held to be improper , case was ordered to be restored to file and a direction was made to dispose off the case on merits at the earliest.