Section 321 of CrPC grants the power to 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 Court in Sheo Nandan Paswan v. State of Bihar (1986) has held that,
“When the application for consent to the withdrawal from the prosecution comes for consideration, the Court has to decide whether to grant such consent or not. The function which the Court exercises in arriving at this decision, as pointed out by the Court in State of Bihar v. Ram Naresh, AIR 1957 Supreme Court 389, is a judicial function. The Court has to exercise its judicial discretion with reference to such material as is then available to it and in exercise of this discretion the Court has to satisfy itself that the executive function of the public prosecutor has not been improperly exercised and that the grounds urged in support of the application for withdrawal are legitimate grounds in furtherance of public justice.
The discretion has not to be exercised by the Court mechanically and the consent applied for has not to be granted as a matter of formality or for the mere asking. The Court has to consider the material placed before it and satisfy itself that the grant of consent would serve the interest of justice. That is why this Court in State of Bihar v. Ram Naresh examined the entire material which was available to it for the purpose of coming to the conclusion that there was no evidence worth the name on the basis of which the prosecution could be sustained against the accused Mahesh Desai.
This Court pointed out that consent is not to be lightly given on the application of public prosecutor “without a careful and proper scrutiny of the grounds on which the application for consent is made”. It was emphasised by this Court that in these matters the public prosecutor exercises discretionary functions in respect of which the initiative is that of the executive but the responsibility is that of the Court .
This Court again reiterated in M. N. Sankaranarayanan Nair v. P. V. Balakrishnan, that the Court must satisfy itself that the executive function of the public prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice and added that the Court may give its permission only if it is satisfied on the materials placed before it that the grant of consent subserves the administration of justice. The same view has been taken in all the subsequent cases and it must now be regarded as well settled that the Court while considering whether to grant consent or not must not accept the ipse dixit of the public prosecutor and content itself by merely examining whether the public prosecutor has applied an independent mind but the Court must satisfy itself not only that the grounds are germane or relevant to advancement of public justice but also whether the grounds in fact are satisfactorily established.
The ultimate test which must be applied by the Court in order to determine the validity of the grounds in a particular case is that the requirement of public justice outweighs the legal justice of that case so that withdrawal from the prosecution could be permitted in the larger interest of public justice. The same considerations which we have discussed while determining what are the legitimate grounds on which an application may be made by the public prosecutor for withdrawal from the prosecution must also apply in guiding the Court as to whether consent for withdrawal of the prosecution should be granted or not.
We may again emphasise that the imperative of public justice provides the only relevant consideration for determining whether consent should be granted or not. It is not possible to provide an exclusive definition of what may be regarded as falling within the imperative of public justice nor is it possible to place the concept of public justice in a strait-jacket formula. Every case must depend on its peculiar facts and circumstances because there may be a myriad situation where this question may have to be considered by this Court . The paramount consideration must be the requirement of public justice and some of the grounds which would bring the case within the fabric of public justice have already been discussed by us in the preceding paras and we need not repeat them. The same grounds may be regarded as germane and relevant to the requirement of public justice and if they exist, the Court would be justified in granting consent to withdrawal from the prosecution.
Reference
Sheo Nandan Paswan v. State of Bihar (1986)