Section 321 of CrPC grants the power to Public Prosecutor and Assistant Public Prosecutor to withdraw the prosecution against a person except in some cases.

Section 321 reads as follows:-

“321. Withdrawal from prosecution – 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 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.”

In the case of Sheo Nandan Paswan v. State of Bihar (1986), there was one major question debated before the court in regard to the position of the Public Prosecutor in relation to an application for withdrawal from the prosecution and the issue was as to what is the degree of autonomy conferred on the Public Prosecutor vis-a-vis the Government whilst filing an application for withdrawal.

The court operationalized the issue into three different questions :

(1) Does Section 321 permit a Public Prosecutor to withdraw from a case without seeking the opinion of the Government

(2) whether Section 321 empowers a Public Prosecutor to refuse to withdraw from the prosecution despite the advice of the Government to withdraw and

(3) where a public prosecutor withdraws from the prosecution on the advice and direction of the Government, does he act contrary to the requirement of Section 321.

Before the Sheo Case these questions have presented a lot of difficulty and the decisions of Supreme Court had not been consistent in the answer to be given to these questions.

Earlier Decision

In State of Bihar v. Ram Naresh Pandey, 1957 SCR 279 which is the first important case dealing with the interpretation and application of Section 321, Supreme Court while deliberating on the role of a Public Prosecutor said (at p. 393) : –

“….it is right to remember that the Public Prosecutor (though an executive officer as stated by the Privy Council in Faqir Singh v. King-Emperor, (1938)65 IA 395 is, in a larger sense, also an officer of the Court and that he is bound to assist the Court with his fairly considered view and the Court is entitled to have the benefit of the fair exercise of his function. It has also to be appreciated that in this country the scheme of the administration of criminal justice is that the primary responsibility of prosecuting serious offences (which are classified as cognizable offences) is on the executive authorities.

Once information of the commission of any such offence reaches the constituted authorities, the investigation including collection of the requisite evidence, and the prosecution for the offence with reference to such evidence, are the functions of the executive. But the Magistrate also has his allotted functions in course of these stages” ……………In all these matters he exercises discretionary functions in respect of which the initiative is that of the executive but the responsibility is his.”

These observations seem to suggest that the prosecution for an offence is the function of the Executive and that the Public Prosecutor is really an Executive Officer who is conducting the prosecution on behalf of the State.

Supreme Court also seemed to accept in State of Orissa v. C. Mohapatra, that the policy decision for withdrawal from the prosecution can be made by the State though the application for withdrawal was to be made by the Public Prosecutor. This is what the Court said in that case :-

“We cannot forget that ultimately every offence has social or economic cause behind it and if the State feels that elimination or eradication of the social or economic cause behind it would be better served by not proceeding with the prosecution the State should be at liberty to withdraw.” (italics are ours).

This position seems to obtain until 1978 so far as the decided cases are concerned.

But in 1978 the trend changed when in Balwant Singh v. State of Bihar, (1978) 1 SCR 604 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 same view was reiterated by Krishna Iyer, J., speaking on behalf of the Court ,’ in Subhash Chander v. State, where the learned Judge said :-

“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 execution.”

The learned Judge strongly deprecated the action of the District Magistrate in directing the Public Prosecutor to withdraw the prosecution in the case before him and observed in words, admitting of no doubt :

“The jurisprudence of genuflexion is alien to our system and the law expects every repository of power to do his duty by the Constitution and the laws, regardless of commands, directives, threats and temptations. The Code is the master for the criminal process. Any authority who coerces or orders or pressurises a functionary like a public prosecutor, in the exclusive province of his discretion violates the rule of law and any public prosecutor who bends before such command betrays the authority of his office.

May be, 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.”

This case also, like the one in Balwant Singh v. State of Bihar, introduced the concept of independent application of mind by the Public Prosecutor on the question of withdrawal from the prosecution and insisted that the Executive cannot direct or pressurise the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor must come to his own decision without bending before the command of the Executive. Once this component of independent application of mind on the part of the Public Prosecutor was introduced the Court while considering whether consent for such withdrawal should be granted or not was required to deliberate not only on the legitimacy of the grounds urged in support of the withdrawal but also whether the Public Prosecutor had applied his mind in the matter.

But then again there was a slight shift in this position in the latest decision in R.K. Jain v. State, (1980)3 SCR 982. The Court in this case adopted a mere middle of the road approach and after pointing out what the Court conceived to be the correct position in law in the following words :-

“Whilst at one point it said that it shall be the duty of the Public Prosecutor to inform the Court and it shall be the duty of the Court to apprise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and 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 Section 321, Criminal Procedure Code, 1973″

The Court recognised that the Government has a role in the administration of criminal justice and observed :

“An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for purposes of creating an atmosphere of goodwill or for the purpose of not disturbing the 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 interest to withdraw from prosecutions, how is the Government to go about the task ?”

and proceeded to add that the Public Prosecutor may act on the advice of the Government in applying for withdrawal of the prosecution “where large and sensitive issues of public policy are involved”. Chinnappa Reddy, J. speaking on behalf of the Court elaborated this view in the following words :-

“Where large and sensitive issues of public policy are involved he must if he is right minded the Public, Prosecutor 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 momentous public policy are involved and if they advice 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.”

The majority Judges however took a different view in the present appeal when it was heard by the earlier Bench. Baharul Islam, J. stated the view of the majority in the following terms :-

“Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the Government, Central or State (see sections 24 and 25, Criminal Procedure Code, 1973), appointed for conducting in Court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public Prosecutor and the Government. Public Prosecutor cannot act without instructions of the Government; a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government ……..

Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application under that Section. If the Public Prosecutor receives such instructions, he cannot be said to act under extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government………………

In our opinion, the object of Section 321, Criminal Procedure Code, 1973 appears to be to reserve power to the Executive Government to withdraw any criminal case on larger grounds of public policy such as inexpediency of prosecutions for reasons of State, broader public interest like maintenance of law and order, maintenance of public peace and harmony, social, economic and political; changed social and political situation, avoidance of destabilization of a stable Government and the like. And such powers have been, in our opinion, rightly reserved for the Government, for, who but the Government is in the know of such conditions and situations prevailing in a State or in the country ? The Court is not in a position to know such situations.”

It will thus be seen that the position in law in regard to the degree of autonomy enjoyed by the Public Prosecutor vis-a-vis the Government in filing an application for withdrawal of the prosecution is rather confused and it would be desirable to approach the question on first principle.

The Court in Sheo Nandan Case, while analysing the question, said that,

“27. Now there can be no doubt that prosecution of an offender who is alleged to have committed an offence is primarily the responsibility of the Executive. It is the executive which is vested with the power to file a charge-sheet and initiate a prosecution this power is conferred on the Executive with a view to protecting the society against offenders who disturb the peace and tranquillity of the society by committing offences, of course it is left to the Court to decide whether to take cognizance of the offences set out in the charge-sheet but the filing of the charge-sheet and initiation of the prosecution is solely within the responsibility of the Executive.

When the prosecution is initiated by filing a charge-sheet the Public Prosecutor comes into the picture. Of course, even before the charge-sheet is filed, the investigating authorities may seek the advice of the Public Prosecutor in regard to the prosecution of the accused but it is not obligatory on the investigating authorities to do so. The Public Prosecutor comes on the scene as soon as the charge-sheet is filed and he appears and argues the case on behalf of the prosecution. It is the State through the investigating authorities which files a charge-sheet and initiates the prosecution and the Public Prosecutor is essentially counsel for the State for conducting the prosecution on behalf of the State.

The expression “Public Prosecutor” is defined in Section 2, Clause (u) to mean “any person appointed under Section 24 and includes any person acting under the directions of a Public Prosecutor.” Section 24 provides for the appointment of a Public Prosecutor : sub-section (1) of Section 24 states that “for every High Court the Central Government or the State Government shall, after consultation with the High Court , appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for conducting in such Court any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.”

Sub-section (3) of Section 24 enacts that for every District, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district and under sub-section (7) of that Section a person is eligible for being appointed as a Public Prosecutor or an Additional Public Prosecutor only if he has been in practice as an advocate for not less than 7 years.

Thus the Public Prosecutor appointed by the State Government conducts the prosecution on behalf of the State Government and the Public Prosecutor appointed by the Central Government does so on behalf of the Central Government. It is undoubtedly true that 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. We are therefore of the view that there is nothing wrong 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. 

We do not think there is anything 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 render 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.”

Reference

Sheo Nandan Paswan v. State of Bihar (1986)