Section 321 of the CrPC grants the power to the Public Prosecutor and Assistant Public Prosecutor to withdraw prosecution against a person, except in certain 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.”
The Grounds
These grounds have been variously stated in the decisions of Supreme Court but the basic principle underlying all these grounds is that the withdrawal can be sought only for furthering the cause of public justice, the paramount consideration must always be the interest of administration of justice. That is the touchstone on which the question must be determined whether an application for withdrawal of the prosecution can be sustained. Supreme Court tried to formulate several instances where the cause of public justice would be served better by withdrawal from the prosecution.
It was observed by Supreme Court in M.N. Sankaranarayanan v. P.V. Balakrishnan, that an application for withdrawal from the prosecution may be made on the ground that “it will not be possible to produce sufficient evidence to sustain the charge or that subsequent information before prosecuting agency would falsify the prosecution evidence or in any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case. Supreme Court also pointed out in State of Orissa v. C. Mohapatra, that “it is not sufficient for the Public Prosecutor merely to say that it is not expedient to proceed with the prosecution. He has to make out some ground which would show that the prosecution is sought to be withdrawn because inter alia the prosecution may not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution.”
It was also emphasised by Supreme Court in Subhash Chander v. State, that “justice cannot be allowed to be scuttled by the Public Prosecutor or the State because of hubris affection or other noble or ignoble considerations.”
Supreme Court also observed in R. K. Jain v. State:
“In the past we have often known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest, etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter productive.
An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched.”
It will thus be seen that the Public Prosecutor cannot maintain an application for withdrawal from the prosecution on the ground that the Government does not want to produce evidence and proceed with the prosecution against the accused or that the Government considers that it is not expedient to proceed with the prosecution. The Public Prosecutor has to make out some ground which would advance or further the cause of public justice. If the Public Prosecutor is able to show that he may not be able to produce sufficient evidence to sustain the charge, an application for withdrawal from the prosecution may be legitimately made by him. But there are two clarifications which we would like to introduce where the prosecution is sought to be withdrawn on this ground.
The first qualification is that where a charge has been framed by the Court either under Section 228 or Section 240, Criminal Procedure Code, 1973, it would not be open to the Public Prosecutor to apply for withdrawal from the prosecution on the ground of insufficiency of evidence in support of the prosecution. The reason is that under Section 228 a charge can be framed by the Court only if the Court is of opinion that there is ground for presuming that the accused has committed an offence and so also under Section 240 the Court can frame a charge only if it is of opinion that there is ground for presuming that the accused has committed an offence.
The Court in both these cases applies its mind to the material consisting of the police report and the documents sent with it under Section 173 and comes to a conclusion that a prima facie case has been made out against the accused and the charge should therefore be framed. When the Court has come to this conclusion after full consideration and framed a charge, it is difficult to see how on the same material the Court can be persuaded to hold that there is not sufficient evidence to sustain the prosecution. How can the Public Prosecutor be permitted to make a volte face on the basis of the same material ? That would be mockery of justice and it would shake the confidence of the Court in the purity and integrity of the administration of justice.
That is why Supreme Court pointed out in Bansi Lal v. Chandan Lal, AIR 1976 Supreme Court 370 that “if the material before the Additional Sessions Judge was considered sufficient to enable him to frame the charges against the respondents, it is not possible to say that there was no evidence in support of the prosecution case.”
So also in Balwant Singh v. State, Supreme Court reiterated that “the State should not stultify the Court by first stating that there is a true case to be tried and then make volte face to the effect that on a second investigation the case has been discovered to be false”. The Public Prosecutor in this last mentioned case sought to rely on a second investigation for supporting the application for withdrawal but that was clearly and unequivocally not countenanced by Supreme Court . Obviously, the Public Prosecutor would be on much weaker ground when on the same material which was before the Court when it framed the charge, he subsequently seeks to withdraw the prosecution on the ground that there is not sufficient. evidence to sustain the prosecution.
It is, therefore, clear that though the prosecution can be withdrawn at any stage, even after the framing of the charge, it would not be competent to the Public Prosecutor, once the charge is framed, to apply for withdrawal of the prosecution on the ground that the same material which was before the Court when it framed the charge is not sufficient to sustain the prosecution. Of course, if some material has subsequently come to light which throws doubt on the veracity of the prosecution case the Public Prosecutor can certainly apply for withdrawal on the ground that the prosecution is not well founded.
It may also happen that in the meanwhile key witness may have died or some important evidence may have become unavailable or some such thing may have happened; in that event, the Public Prosecutor may legitimately feel that it will not be possible to sustain the prosecution in the absence of such evidence and he may apply for withdrawal from the prosecution. But, on the same material without anything more, the Public Prosecutor cannot apply for withdrawal from the prosecution after the charge is framed. To allow him to do so would impair the faith of the people in the purity and integrity of the judicial process.
The second qualification which we must introduce relates to a situation where a charge-sheet has been filed but charge has not been framed in a warrant case instituted on police report. Section 239, Criminal Procedure Code, 1973, provides :-
“If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.”
Now when a warrant case instituted on a police report comes before the Court , the Court is required to consider only the police report and the documents sent along with it and the Court may make such examination, if any, of the accused as it thinks necessary and on the basis of such material if the Court , after giving the prosecution and the accused an opportunity of being heard, considers the charge against the accused to be groundless, the Court is bound to discharge the accused.
What the Court , therefore, does while exercising its function under Section 239 is to consider the police report and the document sent along with it as also any statement made by the accused if the Court chooses to examine him. And if the Court finds that there is no prima facie case against the accused the Court discharges him. But that is precisely what the Court is called upon to do when an application for withdrawal from the prosecution is made by the public prosecutor on the ground that there is insufficient or no evidence to support the prosecution. There also the Court would have to consider the material placed before it on behalf of the prosecution for the purpose of deciding whether the ground urged by the public prosecutor for withdrawal of the prosecution is justified or not and this material would be the same as the material before the Court while discharging its function under Section 239.
If the Court while considering an application for withdrawal on the ground of insufficiency or absence of evidence to support the prosecution has to scrutinise the material for the purpose of deciding whether there is in fact insufficient evidence or no evidence at all in support of the prosecution, the Court might as well engage itself in this exercise while considering under Section 239 whether the accused shall be discharged or a charge shall be framed against him. It is an identical exercise which the Court will be performing whether the Court acts under Section 239 or under Section 321.
The Court will have to consider the same issue under Section 239 and it will most certainly further or advance the case of public justice if the Court examines the issue under Section 239 and gives its reasons for discharging the accused after a judicial consideration of the material before it, rather than allow the prosecution to be withdrawn by the Public Prosecutor. When the prosecution is allowed to be withdrawn there is always an uneasy feeling in the public mind that the case has not been allowed to be agitated before the Court and the Court has not given a judicial verdict. But, if on the other hand, the Court examines the material and discharges the accused under Section 239, it will always carry greater conviction with the people because instead of the prosecution being withdrawn and taken out of the ken of judicial scrutiny the judicial verdict based on assessment and evaluation of the material before the Court will always inspire greater confidence.
Since the guiding consideration in all these cases is the imperative of public justice and it is absolutely essential that justice must not only be done but also appear to be done. We would hold that in a warrant case instituted on a police report – which the present case against Dr. Jagannath Misra and others admittedly is – it should not be a legitimate ground for the public prosecutor to urge in support of the application for withdrawal that there is insufficient or no evidence in support of the prosecution. The Court in such a case should be left to decide under Section 239 whether the accused should be discharged or a charge should be framed against him.
It was pointed out by Supreme Court in State of Orissa v. C. Mohapatra, that in a given case it may not be “conducive in the interest of justice to continue the prosecution ……………since the prosecution with the possibility of conviction” may rouse feelings of bitterness and antagonism and disturb the calm and peaceful atmosphere which has been restored. We cannot forget that ultimately every offence has a social or economic cause behind it and if the State feels that the elimination or eradication of the social or economic cause of the crime would be better served by not proceeding with the prosecution, the State should clearly be at liberty to withdraw from the prosecution.
This was the ground on which Supreme Court in State of Orissa v. C. Mohapatra allowed withdrawal of the prosecution in a case where the incident resulting in the commission of the offence had arisen out of rivalry between two trade unions but since the date of the incident calm and peaceful atmosphere prevailed in the industrial undertaking. There may be broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long lasting security in a locality, of order in a disorderly situation or harmony in a factious milieu which may legitimately persuade the State to “sacrifice a pending case for a wider benefit”.
The imperative of public justice may in such cases transcend and overflow the legal justice of a particular litigation. We are wholly in agreement with what Supreme Court observed in Balwant Singh v. State of Bihar:
“……… communal feuds which may have been amicably settled should not re-erupt on account of one or two prosecutions pending. Labour disputes which, might have given rise to criminal cases, when settled, might probably be another instance where the interests of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution,” We also express our approval of the observations made by Supreme Court in R. K. Jain v. State,:
“In the past we have often known how expedient and necessary it is in the public interest for the Public Prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest, etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter productive.
An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecutions already launched.”
These are broadly the considerations which can be brought under the rubric of public justice so as to justify an application for withdrawal from prosecution. But, of course, we must make it clear that in this area no hard and fast rule can be laid down nor can any categories of cases be defined in which an application for withdrawal of the prosecution could legitimately be made. It must ultimately depend on the facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice.
Reference
The article is an edited excerpt from the judgement Sheo Nandan Paswan v. State of Bihar (1986)