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.
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, 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 applicability may be different in some states due to state specific
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. &
 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. 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 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 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. The court cleared that accused has no role to play in
The court in Anees Mohinuddin v State of Andhra Pradesh 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 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 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 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
 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
In Kiran Chaudhary v State
 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
 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
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 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
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
In Balram Muralidhar v State of Andhra Pradeshthe 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
 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 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
||Jessudoss v R Vijayaraghavan 
N Vivekananda Chetty v State
|Mere pendency no ground.
Dept. proceeding dropped no ground.
|No Prima Facie Case
||State of Punjab v UOI
||Lack of evidence or material to establish
||Ghanshyam v State of MP
||Ends of justice, public order, peace,
|Lack Of Jurisdiction
||Abdur Rahman v Mahimar Rahman
||Magistrate cannot consent where case
exclusively triable by Sessions Court.
|In Charge Of Case
||State of Punjab v Surjit Singh
||Public Prosecutor not conducting prosecution
in case not allowed.
|Report Filed U/S-173(2) Crpc
||Mohd. Mumtaz v Nandini
||Withdrawal Permitted after filing of
|Duty Of Government
||Balabhadra Das v State of Orissa
||Matter of benefitting society cannot be
"confidential." Sharing files with PP will assist court on consent and
stop political favouritism.
||Piyush v Ramesh
||Order allowing or denying consent by court
must be a speaking order.
||N Vivekananda Chetty v State
||Accused, complainant, have no locus to file
withdrawal application. Only, Public prosecutor can do so.
||State of Punjab v Surjit Singh
||Complaint case prosecuted by complainant; PP
cannot withdraw case.
||H.D.N.C. Samanand v State of UP
||Accused of murder in broad day light court
|Change Of Ruling Party
||State v L Ganesan
||The change of party in power is not valid
reason to set aside previous order of withdrawal to prosecute.
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 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
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
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
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
- if it is made before a charge has been framed, the accused shall be
discharged in respect of such offence or offences;
- 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:
- was against any law relating to a matter to which the executive power of
the Union extends, or
- was investigated by the Delhi Special Police Establishment under the
Delhi Special Police Establishment Act, 1946 (25 of 1946), or
- involved the misappropriation or destruction of, or damage to, any
property belonging to the Central Government, or
- 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.
Written By: Manish Awana
- 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)
- 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)
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BA.LLB, LLM (UGC NET)
The work contained under this document is free from plagiarism. The sources referred to have been duly acknowledged.
I would like to thank Dr.M.N. Bhatt
me to work on this topic of great Public Interest.