A prosecutes B as a private party for voluntarily causing hurt to him. In this regard A files a complaint petition before the Chief Judicial Magistrate. The C.J.M. takes cognizance. During the trial, the Public Prosecutor wants to withdraw from prosecution under Section 321. Can he do so? Give reasons and refer to the case law.

Question: A prosecutes B as a private party for voluntarily causing hurt to him. In this regard, A files a complaint petition before the Chief Judicial Magistrate. The C.J.M. takes cognizance. During the trial, the Public Prosecutor wants to withdraw from prosecution under Section 321. Can he do so? Give reasons and refer to the case law.

Find the answer only on Legal Bites. [A prosecutes B as a private party for voluntarily causing hurt to him. In this regard A files a complaint petition before the Chief Judicial Magistrate. The C.J.M. takes cognizance. During the trial, the Public Prosecutor wants to withdraw from prosecution under Section 321. Can he do so? Give reasons and refer to the case law.]

Answer

Section 321 of CrPC lays down the provision for withdrawal from prosecution. Section 321 in the Code of Criminal Procedure, 1973 runs down as:

“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,-

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) 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-

(i) was against any law relating to a matter to which the executive power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

(iv) 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 has not 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.”

The role of the court under Section 321 is to assess whether the application is made in good faith, in the interests of justice and public policy, and not to stifle the process of law. Hence, the application of the Prosecutor must not fail to inform the court how the withdrawal of prosecution, in this case, would achieve these objectives.

In the State of Kerala v. K. Ajith & Ors. (2021) SC, the primary issue pertained to the exercise of power by the Public Prosecutor under Section 321, CrPC to withdraw the prosecution, and the exercise of jurisdiction by the C.J. M. On the issue of Section 321, the Court summarized the principles as follows:

1. 1. Section 321 entrusts the decision to withdraw from prosecution to the public prosecutor but the consent of the court is required for such withdrawal;
   2. The public prosecutor may withdraw from prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;
   3. The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution.

Thus applying the provision and principles laid down by the Hon’ble SC to the present case at hand, it is clear that the Public Prosecutor is competent to withdraw from prosecution under Section 321 during the trial of the case, with the consent of the court.

Moreover, 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 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 is to see that the Public Prosecutor has acted in good faith and that their exercise of discretion by him is proper.

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