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Withdrawal Of Prosecution In Criminal Cases Under Section 321 Crpc, 1973 And Judicial Scrutiny

The framers and drafters of various legislations make laws keeping in mind the intended objectives to be achieved. Large number of laws have certain special characteristics which act as a shield to people who are wrongfully held or tried before a court of law. A person tried before a court and who is found at a later stage to be innocent or it is clear that evidence on record will be averse to the judicial system where a trial needs to end, in the interests of justice.

It is evident from history that the sharpest tools and weapons made for defence can be used for offensive measures and vice-versa. Similarly, noble provisions of law meant to alleviate the suffering and jeopardy are often seen to be used for personal, political and other gains and "public interest" is not visibly in the interest of public[1].

In the recent times there have been a large number of media reports which indicate that the taking back or withdrawal of cases against large number of persons takes place especially for votes[2], in favour of powerful people, political gains, safeguarding personal interest of politicians by withdrawing prosecution. These kinds of incidents hamper proper functionality of judicial system and reflects poorly upon the faith and trust that the citizens and persons have in state authorities.

The display of events and recent trends must be supportive to "continuing quest lies in justice, not injustice." In view of the above discussion, it becomes vital to analyse the role of Indian Judiciary to tackle abuse of lawfully vested power for personal gains by various persons. In order to bring out a better understanding of nature and scope of Section 321 of Code of Criminal Procedure.

The Procedure Under Section 321, For Withdrawal From Prosecution

The Procedure Under Section 321, For Withdrawal From Prosecution

Note 1: The applicability may be different in some states due to state specific amendments.
Note 2: Kindly refer Appendix A for complete reading of Section: 321. CrPC.

It is also vital to understand that the above-described procedure does not prevent measures which the parties dissatisfied with orders passed by virtue of section 321 of Code of Criminal Procedure (CrPC) may avail such as revision and appeal. Also, writ jurisdiction of courts under Article 226 and 32 and any other legal or constitutional remedies are not barred.

A Case Study Showcasing Political Interest

It was in the case Sri Yerneni Raja Ramchander Versus (v) State of A.P. & Ors[3] the Honourable Supreme Court was approached after no order was passed by the High court of Andhra Pradesh while dismissing the petitioner's writ petition. It was contended that one of the respondents had misappropriated public funds. The home department passed consecutively orders to withdraw prosecution to stifle and bypass rule of law to benefit the accused. It was stated that the use of Section 321 CrPC was being used to promote favouritism. It was also contended that the said provision should be declared unconstitutional since it was unjust, arbitrary, discriminatory and irrational which is violative of Article 14 of Indian Constitution.

The accused person was an MLA (Member of Legislative Assembly) from Krishna District of Andhra Pradesh (AP). It was alleged that he misappropriated public money by showing false medical records of various treatments including surgery in connivance of one known accomplice who worked at a hospital. The matter reached Ethics committee of Assembly to which the accused tendered an apology and refunded certain amount of money which was duly acknowledged and accepted by ethics committee. Resultantly, Committee recommended no criminal prosecution should be continued and directions by government were made to Collector of District to further direct PP (Public Prosecutor) to withdraw criminal case in the said matter as per 321 of Code of Criminal Procedure. However, it is important to note that two earlier attempts for withdrawal had failed before courts because it lacked reasons for decision taken.

Analysis Of Above Case Study

The above case study clearly shows how a provision meant to reflect benevolence upon innocent sufferers of criminal litigation can be tried to use mischievously in order to protect people having political background or support. Even if, one may agree to permit such actions on basis of hypothetical situation can or has such power been used for common citizens with such overwhelming backing by executive authorities to which there cannot be an answer. Therefore, such acts must be dealt strongly against offenders belonging to high offices and remedy available must be uniform for all be a minister or common citizen.

Permissibility Of Judicial Review

In Sheonandan Paswan v. State of Bihar & Ors.[4] the Constitution bench had observed that the duty and role of public prosecutor is primarily fixed by law which should not be subject to unnecessary hinderances by judiciary, Therefore, scope of Judicial review was limited and discretionary and independent wisdom of public prosecutor was reinforced through this verdict. However, recent decision of Allahabad High Court[5] passed on 20th February, 2017 stipulates that such power of withdrawing criminal cases by state government is subject to Judicial review and remedy under Article-226 can be resorted to prevent arbitrary applications based on extraneous considerations. Also, scrutiny and decisions on such matters fall within the ambit of policy decisions and states are free to access which deserve benefit but same must be done in compliance with provision under CrPC or any other law if it so provides.

The observations made by Supreme Court in State of Punjab v Surjit[6] made the government to bring about some legislative changes. Previously, any Public Prosecutor was allowed to withdraw a case as per section 494 of old legislation of 1898. Currently, Public Prosecutor (PP) or Assistant Public Prosecutor (APP) in charge of the case are empowered to withdraw prosecution. The role of PP and discretion vested by law in that position was reiterated by Supreme court in VLS Finance Lid v SP Gupta.[7] The court cleared that accused has no role to play in such cases.

The court in Anees Mohinuddin v State of Andhra Pradesh[8] held, that a court need not necessarily see if evidence would lead to conviction or acquittal because 321 CrPC states that withdrawal can happen at any stage of case before a judgment is passed. It was also recognized that state has been vested powers for public interest like law and order, public peace and harmony among various other things which are only within specific knowledge of Central or state governments. It is pertinent to note that long back in Muthia Moopan[9] it was observed that withdrawal under 321CrPC is not applicable to case relating to security proceedings, since they do not end in acquittal or discharge.

In The Interest Of Justice

The law does not provide any particular instances or grounds on which a public prosecutor may file an application. Therefore, ambit and scope for executive is broad but the principle aim must be in order to facilitate and ensure justice and prevent injustice. In Mohd Murtaz v Nandini Satpathy[10] it was reaffirmed that the office of public prosecutor though executive in nature cannot be segregated in total as a PP is also an officer of court bound to assist independently and fairly guided towards the cause of promoting justice.

In Gupta Kumar Sundas v State of Sikkim[11] the accused was facing prosecution for offences under section 181, 379, 403, 471, 420, 511 of Indian Penal Code. The accused had wrongly posed as someone else to get loan but later when there was nothing left to be recovered, court found it was best in administration of justice and permitted withdrawal. It was also observed that their does not exist any catalogue mentioning particular categories fit for withdrawal.

In State of UP v 3rd Addl.District & Sessions Judge Kanpur[12] the High Court reversed the decision of lower court which had allowed application for withdrawal of prosecution where accused faced several cases including those of murder and dacoity. It was held "public interest" cannot be ascertained where lower court allowed application solely on the ground that accused was forced to take up arms.

In Kiran Chaudhary v State[13] the accused persons faced trial under 147,148,323, 324, 435 and 506 of Indian Penal Code and court allowed withdrawal of criminal cases against two accused persons who were political rivals taking note that it would ensure cordial atmosphere in the locality where they lived. In Aslam v State of UP[14] the decision of Uttar Pradesh government to withdraw all cases relating to Essential Commodities Act pending in courts at any stage throughout the state was upheld by High court in public interest. To ensure peace, public order and tranquility in case where there exists lack or paucity of evidence it is in the interest of justice that prosecution be withdrawn was held in Ghanshyam v State of MP[15].

Functions Of Prosecutor And Court

The office of public prosecutor (PP) is a creation under CrPC therefore in no way subordinate to government when a decision to withdraw has to be considered. In Vijayakumar Baldev Mishra v State of Maharashtra[16] it was observed that the government is free to provide material in order to assist PP for taking any decision but final decision should come from PP and not forced upon by government. The executive must also consider impact on society if a case is withdrawn.

The actions of PP must reflect objectivity, as also an officer of court and cannot be permitted to act like a post box of state government. The courts are given complete discretion to allow or disallow applications after assessing if such a case of withdrawal is made out or not was held in SK Shukla v State of UP.[17]

In Balram Muralidhar v State of Andhra Pradesh[18]the PP filed for withdrawal on order of state government for case relating to Prevention of Corruption Act of 1988. The court observed application of independent decision of mind by PP was lacking. There were apparently no grounds which could justify either cause of justice or public interest. The Supreme court upheld orders of High court and Trial court which rejected withdrawal application.

In the case Sheonandan Paswan v State of Bihar[19] the importance given to consent of court to finally decide upon an application of withdrawal in criminal cases was reiterated to reflect a preventive measure to keep check that executive power is not used to interfere with course of justice for illegitimate purposes contrary to mandate of law. In Rahul Agrawal v Rakesh Jain[20] it was held, that it is not proper for lower court to pass order for permitting withdrawal where date was fixed for examining accused after completion of prosecution evidence on ground that accused faced mental harassment because case was pending for around seven years.
The primary goal of the prosecutor as an officer and judge in judicial system has been recognized to attain and retain high standards of noble ideas to secure justice and prevent injustice.

Table Summarizing Other Important Factors

Type / Issue Case Decision
Departmental Proceedings Jessudoss v R Vijayaraghavan [21]
N Vivekananda Chetty v State[22]
Mere pendency no ground.
Dept. proceeding dropped no ground.
No Prima Facie Case State of Punjab v UOI[23] Lack of evidence or material to establish case.
Public Order Ghanshyam v State of MP[24] Ends of justice, public order, peace, tranquillity.
Lack Of Jurisdiction Abdur Rahman v Mahimar Rahman[25] Magistrate cannot consent where case exclusively triable by Sessions Court.
In Charge Of Case State of Punjab v Surjit Singh[26] Public Prosecutor not conducting prosecution in case not allowed.
Report Filed U/S-173(2) Crpc Mohd. Mumtaz v Nandini[27] Withdrawal Permitted after filing of chaegesheet.
Duty Of Government Balabhadra Das v State of Orissa[28] Matter of benefitting society cannot be "confidential." Sharing files with PP will assist court on consent and stop political favouritism.
Consent Issue Piyush v Ramesh[29] Order allowing or denying consent by court must be a speaking order.
Locus Standi N Vivekananda Chetty v State[30] Accused, complainant, have no locus to file withdrawal application. Only, Public prosecutor can do so.
Complaint Case State of Punjab v Surjit Singh[31] Complaint case prosecuted by complainant; PP cannot withdraw case.
Political Pressure H.D.N.C. Samanand v State of UP[32] Accused of murder in broad day light court refused.
Change Of Ruling Party State v L Ganesan[33] The change of party in power is not valid reason to set aside previous order of withdrawal to prosecute.

CONCLUSION
In order to observe wider impacts at a broader level upon the society a reference to statements made by honourable Supreme Court in Subrata Roy Sahara v Union of India[34] find great value. The court stated that Indian judicial system is burdened with large number of false and frivolous cases and it is essential to bring out measures to curtail obsession of filing senseless claims. Also, it was noted that the system effects adversely innocent people who exist opposite to persons filing senseless claims, there is suffering without any fault.

In light of the detailed analysis of functioning related to withdrawal of Criminal cases it can be concluded that the way forward is a vigilant yet empathetic judiciary which must keep strong check to prevent abuse of power under section 321. Since, mandate of law is to promote public interest and not political or private interest by those sitting in high offices or powerful positions.

Also, there must be safety of tenure for public prosecutors because imagination of their acting independently as required under section 321 seems to be distant from reality because recruitment, promotion and termination of services of public prosecutor can be done anytime if there is failure to act as per will of state. This is no less a thorn in rosy provision of law which certainly can hinder independent and impartial role and discretion vested in public prosecutors.

Appendix A
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:
  1. if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
  2. 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:
    1. was against any law relating to a matter to which the executive power of the Union extends, or
    2. was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or
    3. involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
    4. 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 hag hot 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.

End-Notes:
  1. Jagdeep S. Chhokar, How Some States are Subverting the Rule of Law to Drop Criminal Cases Against Politicians https://thewire.in/politics/states-subverting-rule-law-drop-criminal-cases-politician (Last visited: June 16, 2021)
  2. Aditya Ranjan, Politics in prosecution: Withdrawing of cases for votes undermines the criminal justice system https://www.firstpost.com/india/politics-in-prosecution-withdrawing-of-cases-for-votes-undermines-the-criminal-justice-system-9438241.html (Last visited: June 16, 2021)
  3. Criminal Appeal Nos. 1414-1415 OF 2009
  4. (1987) 1 SCC 288
  5. Criminal Writ No. 16507 of 2015
  6. AIR 1967 SC 1214
  7. AIR 2016 SC 721
  8. 2008 CrLJ 1476 (1480,1481)
  9. (1911) 36 Mad 315, 317
  10. AIR 1987 SC 863
  11. 2004 CrLJ 2808 (2810)
  12. 1997 CrLJ 3021 (All)
  13. 2004 CrLJ 747 (750,751) (Del)
  14. 2004 CrLJ 979 (980) (All)
  15. (2006) 10 SCC 473 (478)
  16. AIR 2008 SC 961
  17. 2005 AIR SCW 6054
  18. AIR 2014 SC 3437
  19. AIR 1987 SC 877
  20. (2005) 2 SCC 377
  21. 2007 CrLJ 4501 (4502)
  22. 2008 CrLJ 1325 (1327)
  23. AIR 1987 SC 189
  24. (2006) 10 SCC 473 (478)
  25. 1979 CrLJ 1471 (Cal)
  26. AIR 1967 SC 1214
  27. AIR 1987 SC863
  28. 1991 CrLJ 2457
  29. 1982 CrLJ 452
  30. Supra Note 22
  31. Supra Note 26
  32. 2008 CrLJ (NOC) 446 (All)
  33. 1995 CrLJ 3849 (Mad)
  34. (2014) 8 SCC 470
Written By: Manish Awana. BA.LLB, LLM (UGC NET)
Authors Note: The work contained under this document is free from plagiarism. The sources referred to have been duly acknowledged.
Acknowledgement: I would like to thank Dr.M.N. Bhatt for allowing me to work on this topic of great Public Interest.

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