Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Key Takeaways

  • Section 321 of the Code for Criminal Procedure proves the Public Prosecutor with the authority to withdraw from prosecution following the court's consent.
  • Specific laws dealing with terrorist-related activities, such as POTA (repealed), and UAPA, do not have the application of Section 321.
  • Public Prosecutor may submit an application for withdrawal at any point between when the Court takes cognizance of the case and when the Court issues its decision.


In a criminal trial, the prosecution is the legal party in charge of representing the state by presenting the case against a person accused of breaching the law. This is because criminal offenses are considered to be against the entire society rather than a specific individual.

The Public Prosecutor, who functions as the government representative in court and as a court official, is crucial in the delivery of justice.According to the 197th report on the appointment of Public Prosecutors, they must be independent of the executive and any external forces, as well as the police and the investigative process. They are not permitted to counsel the police on anything pertaining to the inquiry and are not subject to influence from the Executive.

According to Section 321 of the Code for Criminal Procedure, the Public Prosecutor has the authority to withdraw from prosecution following the court's agreement at any moment before the judgement is issued.Many nations accept the notion of withdrawing from prosecution in criminal procedural law. The theory is known as "discontinuance of prosecution" in common law nations.

In general, justice requires that every matter be allowed to run its proper course and must not be halted in its passage, however, the Withdrawal from Prosecution doctrine is an exception to this principle.

Provisions in Indian Justice System

Except for a new proviso, Section 321, CrPc equates to Section 494 of the Old Code. The proviso stipulates that the Central Government's consent must be sought before a Public Prosecutor advances to the Court for the withdrawal of prosecution if the offence pertains to a matter whereby the Union's executive power expands, was examined by the Special Police Establishment, encompasses misappropriation, loss, or damage to Central Government property, or is committed by a Central Government Servant.

Section 321 broadly encompasses the following points:

  • Only with the approval of the court may the Public Prosecutor or Assistant Public Prosecutor withdraw an individual’s prosecution.
  • The prosecution must be withdrawn at any moment before the judgement is rendered.
  • If the withdrawal occurs before the charges are filed, the suspect can only be discharged.
  • However, if the withdrawal occurs after the charges have been filed, the accused is entitled to acquittal.

According to Section 321, prior approval from the central government is also necessary if the offence was (i) committed against the Centre extent (ii) the investigation was conducted by the CBI under the Delhi Special Police Establishment Act, 1946 (iii) the infringement was committed by a person in national government service.

Before directing the Public Prosecutor to withdraw the prosecution, the State Government shall thoroughly analyze the subject, and the file in which the assessment is made should provide reasons. When a matter is for the betterment of society, it is not confidential. If this approach is followed, the odds of favouritism or external political concerns are greatly reduced.

Some specific laws dealing with terrorist-related activities, such as POTA (repealed), and UAPA, do not have the application of s. 321 CrPc, but the concept of judicial review, which is the core of s. 321 CrPc, still applies. Thus, even if section 321 does not apply in its current form as contained in the CrPc, the concept of judicial review applies in all special legislation pertaining to the jurisdiction of the court to grant assent to a withdrawal request from prosecution submitted by the public prosecutor.

Objective and Scope

The objective of Section 321, CrPc would be to retain power with the executive Government to revoke any criminal case on lengthier grounds of public policy such as inefficiency of prosecutions for purposes of State, greater public interest including maintaining law and order, management of public harmony and peace, changed social, economic, and political climates, and so on.

This Section,however, makes no mention of the basis on which the Public Prosecutor may file the request or the factors on which the Court will rule. The Court must use its judicial discretion in giving approval. Before making an application under Section 321 of the Criminal Procedure Code, the Public Prosecutor must apply his mind to the facts of the matter independently, without being subject to any external influence, and the Court, before which the matter is pending, cannot offer its consent to withdraw without first applying its own mind to the details of the matter.

The most recognized basis for the withdrawal from prosecution is by judicial means. The prosecutor files an application in court on grounds such as inadequate evidence, fabricating proof, fraudulent and frivolous claims, and so on.

In the case Sheo Nandan Paswan v State of Bihar [(1983) 1 SCC 438], the majority of the Judges identified four reasons for seeking a withdrawal from prosecution.

  1. Lack of possibility of successful prosecution in light of the evidence,
  2. Implication of individuals as a consequence of personal and political vendetta,
  3. Inexpediency of the prosecution for purposes of Government and public policy, and
  4. Negative impacts on the interest of the public that continuation of the prosecution will introduce in light of the situation

Section 321 of the Criminal Procedure Code allows the Public Prosecutor or Assistant Public Prosecutor in control of a case to withdraw from prosecution with the Court's permission. The Public Prosecutor may submit an application for withdrawal at any point between when the Court takes cognizance of the case and when the Court issues its decision. It is important for the Court to record grounds for his satisfaction with the Public Prosecutor's opinion.

Misuse by State

Section 321 of the CrPC does not provide any criteria or standards for Withdrawal from Prosecution, but it does give the Public Prosecution/Assistant Public Prosecutor the discretionary ability to make an application under said section with the Court's agreement. As a result, executive power over prosecution results in significant mismanagement by the state or federal government.Oftentimes state officials or the state itself fail to fulfil their duties thoroughly and honestly, without being affected by other factors. The state government's attempt to dismiss criminal prosecutions is the result of the state utilizing its unrestricted powers to order its agencies to remove criminal cases existing against its political supporters. This is also violative of Article 14 of the Constitution.

The year-wise distribution of the withdrawal of prosecution in states where this provision was utilized to withdraw a considerable number of cases leads to a higher withdrawal of cases during election years, notably when the elections culminate in a change in the political party in power.

In Ashwini Kumar Upadhyay vs Union of India [Writ Petition(s)(Civil) No(s).699/2016], the 3 judges of the Supreme Court put down specific standards for withdrawing from prosecution for current or former MLAs, MPs, and Ministers. According to the guidelines, withdrawal is not permitted without the agreement of the High Court.


Withdrawal from prosecution is a critical part of Indian criminal procedure. The Public Prosecutor's dual role has certainly become a cause of concern in carrying out this position, in so far as the Public Prosecutor is supposed to fulfil the needs of two unique pillars of democracy with complete trust, which appears to be far from actuality. The legislature's decision to leave the provision open-ended offers both benefits and drawbacks. However, the clause may be abused by the executive over the supervision of the public prosecutor. In providing its approval to withdraw from the prosecution, the Court has a specific role since it is the final repository of a legislative trust.

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