What is the law relating to the withdrawal of persons from prosecution?

Question: What is the law relating to the withdrawal of persons from prosecution? [MPHJS 2015, BIHAR J 1998]

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Answer

The prosecution of criminal cases is conducted by the Public Prosecutor. Section 321 of the Criminal Procedure Code enables the Public Prosecutor or the Assistant Public Prosecutor to 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. For doing so, consent of the Court is necessary.

Section 321, CrPC corresponds to section 494 of the Old Code except that a proviso has been newly added. The proviso lays down that consent of the Central Government should be obtained before a Public Prosecutor moves the Court for the withdrawal from prosecution, whenever the offence relates to a matter to which the executive power of the Union extends or was investigated by the Special Police Establishment or involves misappropriation, destruction or damage to Central Government property or is committed by a Central Government Servant.

It is important to observe that Section 321 of CrPC uses the phrase ‘withdrawal from prosecution’ and not ‘withdrawal of prosecution’ the effect is that when prosecution is instituted for one or more offences against one or more persons, the Public Prosecutor may at any time before the judgment, file an application to withdraw from Prosecution. i.e. withdrawal of one or more offences against one or all persons. If the phrase used was ‘withdrawal of Prosecution’ that would have necessarily meant the closure of the case.

In the case of Sheo Nandan Paswan v. State of Bihar and others (1983), 1 SCC 438 the Supreme Court opined that Section 321 of the code enables the Public Prosecutor to withdraw from the prosecution with the consent of the Court.

Before an application made under section 321 CrPC, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence and secondly that the Court, before which the case is pending cannot give its consent to withdraw without itself applying mind to the fact of the case. The majority of Judges, in this case, cited four grounds for seeking withdrawal from prosecution

1. 1. lack of prospect of successful prosecution in the light of the evidence,
   2. the implication of persons as a result of political and personal vendetta,
   3. inexpediency of the prosecution for reasons of State and public policy, and
   4. adverse effects that the continuance of the prosecution will bring to the public interest in the light of the changed situation.

Application for withdrawal from prosecution may be made at any time before the judgment is pronounced. So the Public Prosecutor may file an application for withdrawal from prosecution at any time ranging from the Court taking cognizance of the case till such time the Court actually pronounces the judgment.

In Rajendra Jain v. State (1980)3 SCC 434 the Supreme Court has held that notwithstanding the fact that offence is exclusively triable by the Court of Session, the Court of Committing Magistrate is competent to give consent to the Public Prosecutor to withdraw from the prosecution.

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