In criminal law an offence done by a person affects the society at large because of which in every criminal case the State becomes the party. Therefore, these cases are conducted by Public Prosecutors (including Additional Public Prosecutor and Special Public Prosecutors) and Assistant Public Prosecutors. While the former are to conduct prosecutions and other criminal proceedings on behalf of the State in the Court of Sessions and High Courts, the latter conduct it on behalf of the State in the courts of Magistrate. A public prosecutor (PP) as defined under Criminal Procedure Code, 1973 (hereinafter referred to as CrPC) is an officer appointed by the State to represent the State in such matters.Public Prosecutor is not a part of any investigating agency. Under Section 321a Public Prosecutor or Assistant Public Prosecutor is empowered to withdraw prosecution from a person either generally or for any one of the offences for which he is tried. The proviso of this Section mandates the Public Prosecutor to obtain the consent of the Central Government in matters which relate to the executive power of the Union or was investigated by the Special Police Establishment or involves misappropriation, destruction or damage to Central Government property or is committed by a Central Government Servant before moving to the court for withdrawal of the prosecution.
Section 321 of CRPC uses the term ‘withdrawal from prosecution’ instead of ‘withdrawal of prosecution’. This differentiation purports to reserve the power with the prosecutor to withdraw from one or more offences against any person at any time before the judgment is pronounced whereas withdrawal of prosecution would lead to closure of the case in totality.
Over the past years we have witnessed that public prosecutors do not act independently before filing an application for withdrawal from prosecution as they are appointed by the government because of which their decisions are influenced by the political factors. With changing parties, we have seen that every political party misuses this provision to remain safe from all criminal charges, for example, in 2013 Samajwadi Party in Uttar Pradesh had withdrawn prosecution against the accused charged with Muzaffarnagar riots and recently the alleged case of rape was withdrawn against the Union Minister Chinmayanand.
Rahul Agarwal versus Rakesh Jainin 2005, the Supreme Court observed, “Even if the government directs the public prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether such withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit the withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution.”
Section 321 of CrPC vests Public Prosecutor or Assistant Public Prosecutor with executive discretion to withdraw from prosecution with the consent of the Court. The Public Prosecutor however, is not an independent officer but an appointee of the Government. The relationship that exists between them is of client and the counsel. Therefore, PP can’t conduct a case absolutely on his own accord or contrary to the instructions of his client. This essentially connotes that the application of withdrawal made to the court under this section should be filed only when agreed upon by the Government. In case the court consents for it, the accused will either be discharged or acquitted depending on the nature of the offences and the stage of the trial. It is further pertinent to note that this Section does not state the grounds on which the court is to give its consent for the withdrawal. In Sheo Nandan v. State of Bihar & Orsthe Supreme Court said that before applying for withdrawal the Public Prosecutor should apply his mind to the facts of the case without any kind of outside influence as he cannot simply work on the dictate of the State Govt because with that he is also an officer of the court. He should use this discretionary power in the interest of the society and since, there are no grounds mentioned in the section for consenting for withdrawal it further becomes the duty of the court to apply its judicial mind to the case so that public harmony remains balanced. Therefore, court this case laid down the following guidelines for giving its consent:
- Lack of prospect of successful prosecution in the light of evidence
- Implications of persons as a political and personal vendetta
- inexpediency of the prosecution for reasons of State and public policy
- adverse effects that the continuance of the prosecution will bring to the public interest in the light of the changed situation.
In Subash Chandra v. Chandigarh Administrationthe court said that public prosecutor should exercise the power vested in him by the Code reasonably and not against the public interest. His decisions should be independent of the political influence as he is expected to be a judicial limb. The Court in the case of Abdul Karim v. State of Maharashtraopined that withdrawal cannot solely be made on the decision of the government instead the court before passing such order has to see the facts of the case and should examine the consequences of passing such order. If the court finds that passing such order will have bad effect on public faith and justice and is against the rule of law then the court can deny such prayer.
Who can Withdraw Prosecution
Section 321 of CRPC empowers the Public Prosecutor or the Assistant Public Prosecutor who is in charge of that particular case to withdraw from the prosecution with the explicit consent of the Court. However, post the State amendment in the State of UP it is necessary to provide for a written application to that effect before the application for the withdrawal is made.
In Abdul Karim v. State of Maharashtra(also known as Veerappan Case), the Supreme Court held that it is the duty of the prosecution and the State to prosecute an accused. Therefore, the power to withdraw from the prosecution would also lie with the State and the Public Prosecutor. The State can direct the public prosecutor to withdraw the prosecution. The public prosecutor being an officer appointed by the State would be bound to apply before the Court for such withdrawal only after being fully convinced that it is in the interest of justice and not blinded by political pressures. He further has the right to not make any such application if incase he believes it is for a contrary purpose. Any pressure or coercion on the PP to file the application therein would be a violative of the rule of law. However, in a situation where the application is to be filed the Public Prosecutor has to make such an application himself and he cannot delegate it to someone else.
Stage of withdrawal
Withdrawal Application is to be filed before the judgment is announced. So, the Public Prosecutor in order to withdraw the prosecution can file the application from any time between the Court taking cognizance of the case to before the Judgment is being pronounced. In Rajendra Jain v. State, the Court has held that notwithstanding the fact that offence is exclusively triable by the Court of Session, the Court of Committing Magistrate is competent to give consent to the Public Prosecutor to withdraw from the prosecution. The ‘Court’ under this section is to mean the Trial Court and not the Appellate Court as prosecution only happens during the trial and once a person has been convicted it is an Appeal.
Duty of the Government:
Before ordering the public prosecutor to file for withdrawal from prosecution the government should look into the facts and should state the reasons for filing such application. However, Section 321 does not necessitate the recording of reason by the Court but in the interest of justice it is expected that such actions by the government should not be confidential as these affect the society at large.
The government further should examine the consequences of such actions before instituting an application as it is expected to act in public interest and maintain the public order
Section 321 of CrPC vests the Public Prosecutor with a discretionary power of withdrawing the prosecution, therefore acting in public and justice he should consider the broad impact of closure of a particular case. The Public Prosecutor cannot withdraw the prosecution merely on the grounds of paucity of evidence but on other relevant grounds as well. In the above-mentioned incidents we witnessed that sometimes no public interest is served by the withdrawal of prosecution in serious cases like murder; sometimes accused involved in such cases gets acquitted despite of having ample evidence against them.
Thus, there is a need for the Court to apply its Judicial mind and to draw a balance between two kinds of societal interest:
- The societal interest in convicting and punishing the accused and also in keeping aloft the morale of the police and armed force.
- The societal interest in public order, public peace and public justice.
Preferred Citation : A. Updhyay, A. Sharma, “Withdrawal Of Prosecution: A Façade Behind Arbitrary Use Of Power”, The Law Culture (2020)