Withdrawal of Prosecution
Introduction
Justice ordinarily demands that every case must reach its destination, not
interrupted in route. Section 321 is an exception. Purpose of law is to establish peace
and tranquility in society. Section 321 of the CrPC, 1973 is pari materia of Section 494
of the CrPC, 1898. Section 321 of the CrPC deals with withdrawal from prosecution.
The Malimath Committee637 (2003) recommended that there should be participation
of victim before withdrawal of cases under section 321, CrPC.
Section 360 of the proposed bill is similar to section 321 of the CrPC. Section 321 was
not involving victims. New law involves participation of victims. Provided further
that victim has been inserted
Section 321. Withdrawal from prosecution
1. The Public Prosecutor or Assistant Public Prosecutor.
2.in charge of a case may
3.with the consent of the Court
,4.at any time before the judgment is pronounced
, 5. withdraw from the prosecution of any person
6. either generally or in respect of any one or more of the offences for which he is tried and,
17. Effect- upon such withdrawal,-(a) if it is made before a charge has been framed, the accused shall be discharged inrespect 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) Executive Power- was against any law relating to a matter to which the executive power of the Union extends, or(ii) DSPE Act, 1946 – was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946, or(iii) Damage of property of Central Government- involved the misappropriation ordestruction of, or damage to, any property belonging to the Central Government, or(iv) Offence committed by Employee of Central Government- was committed by aperson in the service of the Central Government while acting or purporting to act inthe discharge of his official duty, and➢ the Prosecutor in charge of the case has not been appointed by the CentralGovernment,➢ 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 producebefore it the permission granted by the Central Government to withdrawfrom the prosecution.
Ingredients of section 321
In Sheo Nandan Paswan v. State of Bihar & Ors. Supreme Court said that Section 321 needs three requisites to make an order under it valid;
(i) The application should be filed by a Public Prosecutor or Assistant Public Prosecutor, who is competent to make an application for withdrawal,
(ii) He must be in charge of the case,
(iii) The application should get the consent of the Court before which the case is pending
case 1. Balwant Singh & Ors. v. State of Bihar
pointed out the following important points –
(i) Responsibility of the public prosecutor
➢ it is the statutory responsibility of the public prosecutor alone to apply his mind
and decide about withdrawal of prosecution and
➢ this power is non-negotiable and cannot be bartered away in favour of those
who may be above him on the administrative side.
Justice ordinarily demands that every case must reach its destination, not
interrupted in route.
Section 321 is an exception. Purpose of law is to establish peace and tranquility in
society.
(ii) Duty of Court
❖ Consent should be given– If some policy consideration bearing on the
administration of justice justifies withdrawal, the court may accord
permission.
❖ Consent should not be given– If there is no public policy bearing on the
administration of justice is involved the Court should not give consent.
❖ Court should be vigilant – The court has to be vigilant when a case has
been pending before it and not succumb to executive suggestion made in the
form of application for withdrawal with a bunch of papers tacked on.
(iii) Facts should or should not be considered
➢ Facts should be considered- The sole consideration for the Public Prosecutor
when he decides to withdraw from a prosecution is the, larger factor of the
administration of justice. Of course, the interests of public justice being the
paramount consideration.
➢ Facts should not be considered- Prosecution should neither be withdrawn for
political favours nor under party pressures nor like concerns.
(iv) Examples – There are some examples of prosecution which may be withdrawn
under section 321 the CrPC. These are –
(a) Communal feuds -communal feuds which may have been amicably
settled should not re-erupt on account of one or two prosecutions
pending.
(b) Labour disputes – 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.
(c) Public justice – Other instances also may be given where public justice
may be served by withdrawal even apart from the merits of the case.
case 2. Abdul Karim v. The State of Karnataka & Ors
This case is known as Rajkumar Kidnapping Case. Kannada film actor Rajkumar was abducted
by Tamilian dacoit Veerappan on July 30, 2000.
Facts –
❖ Kidnapping of Mr. Rajkumar and Demand – Veerappan was notorious
criminal. He involved in smuggling of ivory and sandalwood. His illegal
activities were going on in forest situated on border of Tamil Nadu and
Karnataka. During this period he committed murder of several forest police
personal and others. He abducted Mr. Rajkumar, a film star who was very
popular in South India and some other persons. He demanded fulfillment of
certain conditions including withdrawal of prosecutions against members of
gang of Veerappan. Some of them had been charge-sheeted under the TADA,
Act. Government of Tamil Nadu and Karnataka became ready to fulfill his
demand. They directed Public Prosecutors to withdraw cases against
members of Veerappan’s gang.
❖ Application for withdrawal – On 10th August, 2000 an application was filed
by the Special Public Prosecutor under the provisions of Section 321 of the
Criminal Procedure Code in fourteen cases. These offences were related to
the IPC, the Indian Explosive Act, the Arms Act and the TADA Act. These
were being heard by the Designated Court at Mysore.
❖ Grounds of withdrawal – It was submitted by the Prosecutor that in order to
restore the peace and normalcy in the border area and among the people
living in the border area and to maintain peace among the public at general
and inhabitants of the particular village, the Prosecutor had decided to
withdraw from the prosecution the charged under the offences of the
provisions punishable under Sections 3, 4 and 5 of the TADA.
❖ Stage – The Special Public Prosecutor’s application was made when the trial
of the cases to which it related was in progress and the evidence of 51
witnesses had been recorded.
❖ Abdul Karim – Abdul Karim is the father of Shakeel Ahmed who had,
allegedly, been killed by Veerappan and his associates. He opposed the
Special Public Prosecutor’s application for withdrawal of application.
Ratio of the Supreme Court
In the Abdul Karim Case Supreme Court observed, “
❖ Application of Ratio of Sheo Nandan Paswan Case – In the Sheonandan
Paswan Case, majority opinion of the Constitution Bench observed that for
application of section 321 it is not necessary for the court to assess the
evidence to discover whether the case would end in conviction or acquittal.
What the court has to see is whether the application is made in good faith, in
the interest of public policy and justice and not to thwart or stifle the process of
law.
❖ Direction of Government and Duty of Prosecutor – The law is that though the
Government may have ordered, directed or asked a Public Prosecutor to
withdraw from a prosecution, it is for the Public Prosecutor to apply his mind to
all the relevant material and, in good faith, to be satisfied thereon that the public
interest will be served by his withdrawal from the prosecution.
❖ Duties of Court – In turn, the court has to be satisfied, after considering all
that material, that the Public Prosecutor has applied his mind independently
thereto, that the Public Prosecutor, acting in good faith, is of the opinion that
his withdrawal from the prosecution is in the public interest, and that such
withdrawal will not stifle or thwart the process of law or cause manifest
injustice.”
❖ Special Public Prosecutor did not get opportunity to read report– The
affidavit of the Special Public Prosecutor reveals that he was informed that the
Government of the State of Karnataka had intelligence reports that if any
harm were to be caused to Rajkumar, it would lead to problems between two
linguistic communities. Clearly, he was not shown the intelligence reports.
❖ Special Public Prosecutor had not applied his mind- There is no statement
therein which shows that the Special Public Prosecutor had the opportunity of
assessing the situation for himself by reading primary material and deciding,
upon the basis thereof, whether he should exercise his discretion in favour of
the withdrawal of TADA charges. The Special Public Prosecutor, in fact, acted
only upon the instructions of the Government of the State of Karnataka. He, therefore,
did not follow the requirement of the law that he be satisfied and the consent he sought
under Section 321 cannot be granted by this Court.
❖ Nothing considered about protection of witnesses – There is nothing on the
record which suggests that the possibility of reprisals against the witnesses
who have already deposed against the accused respondents or the effect on
the morale of the law enforcement agencies were considered before it was
decided to release the accused respondents
❖ No surety regarding release of Rajkumar – There is also nothing to suggest
that there was reason to proceed upon the basis that Veerappan would release
Rajkumar when his demands were not being met in full. The Government of
the State of Karnataka would appear to be unaware that once the accused
respondents were discharged from TADA charges, the deal was done; and
that when they were released on bail they could not be detained further,
whether or not Rajkumar was released in exchange.
❖ No arrangement of security of Rajkumar – The Government of the State of
Tamil Nadu had been apprised that Rajkumar faced the risk of being
kidnapped by Veerappan when he visited his farmhouse at Gajanoor. It knew
that Rajkumar was unlikely to give advance intimation of his visits: he had
visited Gajanoor for the house-warming ceremony of his new farmhouse in
June, 2000 without prior notice. To put it mildly, it would have been prudent,
in the circumstances, to post round the clock at Rajkumars farmhouse in
Gajanoor one or two policemen who could inform their local station house of
his arrival there and thus ensure his safety.
❖ It will lead anarchy- It does not appear that anybody considered that if
democratically elected governments give an impression to the citizens of this country
of being lawbreakers, would it not breed contempt for law; would it not invite citizens
to become a law onto themselves. It may lead to anarchy. The Governments have to
consider and balance the choice between maintenance of law and order and
anarchy.
❖ It will paralyse & shake faith in democracy– It yielded to the pressure tactics of
those who according to the Government are out to terrorise the Police force and to
overawe the elected Governments. It does not appear that anyone considered that with
their action people may lose faith in the democratic process, when they see public
authority flouted and the helplessness of the Government. The aspect of paralysing
and discrediting the democratic authority had to be taken into consideration.
❖ To preserve its independence and territories is the highest duty of nation – It is
the executive function to decide in public interest to withdraw from
prosecution as claimed. But it is also for the Government to maintain its
existence. The self-preservation is the most pervasive aspect of sovereignty. To
preserve its independence and territories is the highest duty of every nation and to
attain these ends nearly all other considerations are to be subordinated.
❖ Veerappan had connection with LITTE -In the present case, without
consideration of these aspects the decision was taken to withdraw the TADA
charges. It is evident from material now placed on record before this Court
that Veerappan was acting in consultation with secessionist organisations groups
which had the object of liberation of Tamil from India.
Conclusion: Supreme Court said that application of section 321 is not justified in this
case.
