A is tried for an offence. During the trial, the Public Prosecutor wants to withdraw from prosecution against A even as some of the prosecution witnesses have already been examined. Can the Public Prosecutor withdraw from prosecution? Give reasons in support of your answer and also refer to the statutory provision in this regard, if any.

Question: A is tried for an offence. During the trial, the Public Prosecutor wants to withdraw from prosecution against A even as some of the prosecution witnesses have already been examined. Can the Public Prosecutor withdraw from prosecution? Give reasons in support of your answer and also refer to the statutory provision in this regard, if any.

Find the answer only on Legal Bites. [A is tried for an offence. During the trial, the Public Prosecutor wants to withdraw from prosecution against A even as some of the prosecution witnesses have already been examined. Can the Public Prosecutor withdraw from prosecution? Give reasons in support of your answer and also refer to the statutory provision in this regard, if any.]

Answer

Section 321 of the Code of Criminal Procedure lays down the provision regarding withdrawal from prosecution. According to the section, “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,-

1. if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
2. 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-
3. was against any law relating to a matter to which the executive power of the Union extends, or
4. was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or
5. involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
6. 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.”

Withdrawal of prosecutions is not to be mechanically allowed on the basis of the recommendations of a review committee. The Public Prosecutor must satisfy himself that the case in question was fit for withdrawal.

As it was noted in the case of Ghanshyam v. State of M.P. And others [2007(57) ACC 305], 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, political purposes. In this regard, the Court performs a supervisory function in granting its consent to the withdrawal.

The Court’s duty is not to reappreciate the grounds which led the Public Prosecutor to request a 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.”

Similarly, in the case of Abdul Karim v. State of Karnataka [(2000) 8 SCC, 710], the Hon’ble Apex Court has opined that section 321 CrPC contemplates consent by a court in a supervisory and not an adjudicatory manner and the court must see that the application moved by a public prosecutor for withdrawal of prosecution has been properly made in good faith in the interest of public policy and justice and not to thwart or stifle the process of law or suffers from such improprieties or illegalities as to cause manifest injustice if consent is given by the court. For ready reference, a relevant portion envisaged in paragraph 18 of the aforesaid judgement is hereby enunciated herein below:

“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 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.”

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Important Mains/Long Questions for Judiciary, APO & University Exams

1. CRPC Mains Questions Series Part I: Important Questions
2. CRPC Mains Questions Series Part II: Important Questions
3. CRPC Mains Questions Series Part III: Important Questions
4. CRPC Mains Questions Series Part IV: Important Questions
5. CRPC Mains Questions Series Part V: Important Questions
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7. CRPC Mains Questions Series Part VII: Important Questions
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