A is prosecuted for the offence of murder. Before the pronouncement of judgment, the Public Prosecutor seeks permission from the Sessions Judge for withdrawal from prosecution. Is the Sessions Judge bound to give consent to the Public Prosecutor for withdrawal from prosecution under Section 321? Give reasons for your answer and also refer to case laws, if any, on this point.

Question: A is prosecuted for the offence of murder. Before the pronouncement of judgment, the Public Prosecutor seeks permission from the Sessions Judge for withdrawal from prosecution. Is the Sessions Judge bound to give consent to the Public Prosecutor for withdrawal from prosecution under Section 321? Give reasons for your answer and also refer to case laws, if any, on this point.

Find the answer only on Legal Bites. [A is prosecuted for the offence of murder. Before the pronouncement of judgment, the Public Prosecutor seeks permission from the Sessions Judge for withdrawal from prosecution. Is the Sessions Judge bound to give consent to the Public Prosecutor for withdrawal from prosecution under Section 321? Give reasons for your answer and also refer to case laws, if any, on this point.]

Answer

No, the Sessions Judge is not bound to give consent for withdrawal from prosecution under section 321 of the Code of Criminal Procedure. This was clarified by Hon’ble courts in the case of Singh v. Jitendra Nath, (1932) 36 CWN 16, and in Balwant v. State, AIR 1977 SC 2265.

Under section 321, the Public Prosecutor can withdraw from prosecution with the consent of the court at any time before judgment is pronounced. It is notable that the court is not bound to give consent in all circumstances.

The Supreme Court has held that the power contained in this section gives a general executive direction to withdraw from the prosecution subject to the consent of the Court. The section indicates neither the reasons which should weigh with the Public Prosecutor or the Assistant Public Prosecutor to move the Court nor the grounds on which the Court will grant or refuse permission, but the essential consideration which is implicit in the grant of the power is that it should be in the interest of the administration of justice.

As held in MNS Nair v. PV Balakrishnan, AIR 1972 SC 496, it is a duty of the Court to see that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecute offenders under the law directs the Public Prosecutor or Assistant Public Prosecutor to withdraw from the prosecution.

In Sher Singh’s case, it was held that consent by the court is not given as a matter of course, while in Balwant’s case, the SC held that the court should be vigilant at the time of giving consent to withdrawal from prosecution.

Applying the principles laid down in aforesaid cases to the present proposition in hand, it can be said that the Sessions Judge is not bound to give consent to withdraw from prosecution against the accused.

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