Section 321 of CrPC gives 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.”
Analysis
This Section corresponds to Section 494 of the old Criminal. P.C., 1898, and it incorporates certain changes which have relevance in that they throw some light on the true interpretation of the Section. It may be noted that there are two limbs of Section 321. The first is that any Public Prosecutor or Assistant Public Prosecutor in charge of a case may withdraw from the prosecution of any person but this power to withdraw from the prosecution is not an unfettered or unrestricted power because it can be exercised only “with the consent of the Court “. If the Court does not give its consent to the withdrawal of the prosecution, the Public Prosecutor or the Assistant Public Prosecutor cannot withdraw it.
In the case of Sheo Nandan Paswan v. State of Bihar (1986), the Supreme Court analysed the provision in these terms-
But the question is as to what are the grounds on which the Public Prosecutor or Assistant Public Prosecutor can apply for withdrawal from the prosecution and also similarly what are the considerations which must weigh with the Court in granting or refusing consent for the withdrawal of the prosecution. There have been a number of decisions of Supreme Court bearing on both these issues but it must be conceded straightway that these decisions do not disclose any uniform approach. The Court has in some decisions taken very narrow view while in some others it has adopted a broader view. ‘The Court has swung from narrow grounds to broad ones in different decisions from time to time.
Now one thing is certain that no unfettered or unrestricted power is conferred on the Public Prosecutor when we refer to Public Prosecutor, we also include Assistant Public Prosecutor to apply for withdrawal from the prosecution. It is obvious that the power conferred on the Public Prosecutor to withdraw, from the prosecution must be a Controlled on guided power or else it will fall foul of Article 14 of the Constitution. It is necessary in this context to refer to certain other provisions of the Criminal Procedure Code,1973, which, though not directly relevant, throw some light on the determination of the question as to what is the extent of the power of the Public Prosecutor to withdraw from the prosecution and how it is controlled and regulated.
When a First Information Report relating to the commission of a cognizable offence is lodged in a Police Station under Section 154 or an order is made by a Magistrate directing the police to investigate a non-cognizable case under Section 155, the police is bound to investigate the offence alleged to have been committed. The powers of the police in regard to investigation and the procedure to be followed by them in such investigation are set out in Sections 157 to 172.
Section 173, sub-section (1) casts an obligation on the police to complete the investigation without unnecessary delay and sub-section (2), Section 173 then proceeds to state that as soon as the investigation is completed, the officer in charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the prescribed form stating the various particulars mentioned in that sub-section.
Section 190 confers power on the Magistrate to take cognizance of an offence and there are three different ways in which cognizance of an offence may be taken by a Magistrate. This Section states that cognizance of an offence may be taken-
(a) upon receiving a complaint of facts which constitute such an offence,
(b) upon a police report of such, facts and
(c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed.
We may concentrate our attention on Clause (b) since the Section read with that clause clearly goes to show that even in the matter of initiating a prosecution, the police has no unfettered discretion. It is now well settled as a result of several decisions of Supreme Court , of which we may mention only one, namely, H. S. Bains v. State, AIR 1980 Supreme Court 1883 that even if the report submitted by the police to the Magistrate under Section 173 states that in the opinion of the police no offence appears to have been committed and no prosecution may therefore be initiated, the Magistrate can still form an opinion on the facts set out in the report that they Constitute an offence and he can take cognizance of the offence and issue process against the accused.
The Magistrate may also find, after considering the report, that the investigation is unsatisfactory or incomplete or there is scope for further investigation and in that event; the Magistrate may decline to accept the report and direct the police to make further investigation and then decide whether or not to take cognizance of the offence after considering the report submitted by the police as a result of such further investigation. It will thus be seen that the police has no absolute or unfettered discretion whether to prosecute an accused or not to prosecute him.
In fact, in our constitutional scheme, conferment of such absolute and uncanalised discretion would be violative of the equality clause of the Constitution. The Magistrate is therefore given the power to structure and control the discretion of the police. If the Magistrate finds from the report made by the police either on initial investigation or on further investigation directed by the Magistrate, that prima facie an offence appears to have been committed, the Magistrate is empowered to take cognizance of the offence notwithstanding the contrary opinion of the police and equally if the Magistrate forms an opinion that on the facts set out in the report no offence prima facie appears to have been committed though the police might have come to a contrary conclusion, the Magistrate can decline to take cognizance of the offence.
The discretion of the police to prosecute is thus ‘cabined and confined’ and, subject to appeal or revision, and the Magistrate is made the final arbiter on this question. The Legislature has in its wisdom taken the view that it would be safer not to vest absolute discretion to prosecute in the police which is an Executive arm of the Government but to subject it to the control of the judicial organ of the State.
Same Scheme in the case of Public Prosecutor
The same scheme has been followed by the Legislature while conferring power on the Public Prosecutor to withdraw from the prosecution. This power can be exercised only with the consent of the Court so that the Court can ensure that the power is not abused or misused or exercised in an arbitrary or fanciful manner. Once the charge-sheet is filed and the prosecution is initiated, it is not left to the sweet will of the State or the Public Prosecutor to withdraw from the prosecution. The Court is entrusted with control over the prosecution and as pointed out by Krishna Iyer, J. in Subhash Chander v. State, (1980)2 SCR 44.
“The even course of criminal justice cannot be thwarted by the Executive however high the accused, however sure the Government feels a case is false, however unpalatable the continuance of the prosecution to the powers-that-be who wish to scuttle Court justice because of hubris, affection or other noble or ignoble consideration.”
Once the prosecution is launched, its relentless course cannot be halted except on sound considerations germane to public justice. And again, to quote the words of Krishna Iyer, J. in the same case,
“the Court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the public prosecutor.”
The Public Prosecutor cannot therefore withdraw from the prosecution unless the Court before which the prosecution is pending gives its consent for such withdrawal. This is a provision calculated to ensure non-arbitrariness on the part of the Public Prosecutor and compliance with the equality clause of the Constitution.
It is also necessary to point out that the law has fashioned another safeguard against arbitrary exercise of power by the Public Prosecutor in withdrawing from the prosecution and this safeguard is that the Public Prosecutor can apply for withdrawal only on the basis of certain legitimate grounds which are germane or relevant to public justice. It is significant to note that the entire development of administrative law is characterised by a consistent series of decisions controlling and structuring the discretion conferred on the State and its officers. The law always frowns on uncanalised and unfettered discretion conferred on any instrumentality of the State and it is the glory of administrative law that such discretion has been through judicial decisions structured and regulated.
Supreme Court has, therefore, despite fluctuating opinions delivered in different cases, laid down the broad principle and consistently acted upon it, namely, that the power to apply for withdrawal from the prosecution can be exercised only in furtherance of justice. It was pointed out by Supreme Court in M.N. Sankaranarayanan Nair v. P.V. Balakrishnan, (1972)2 SCR 599, “the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice.”
So also, one of us, (Bhagwati, J. as he then was) said in State of Orissa v. C. Mohapatra, (1977)1 SCR 335 – “the ultimate guiding consideration must always be the interest of administration of justice.” That is the broad principle under which the Public Prosecutor must bring his case in order to be able to justify his application for withdrawal from the prosecution. What are the different grounds which may possibly come within this principle is a matter which we shall presently discuss but whatever be the grounds on which the application is made it can be sustained only if these grounds are relatable to furtherance of public justice.
Reference
Sheo Nandan Paswan v. State of Bihar (1986)