In Sheo Nandan Paswan vs. State of Bihar and others (1983) 1 SCC 438 Criminal Appeal No. 241 of 1982, the Supreme Court's 5-judge Constitution Bench comprising of Chief Justice P.N. Bhagwati and Justices G.L.Oza, E.S. Venkataramiah, V. Khalid and S. Natarajan concluded by majority (3:2) in its 96-page long judgement dated December 20, 1986 that Section 321 of the code enables the Public Prosecutor to withdraw from the prosecution with the consent of the Court. The majority dismissed the appeal.
The majority upheld the Special Judge’s consent order; consequently, Dr Jagannath Mishra and co-accused remain discharged and the prosecutions stand withdrawn. The ruling reinforced a restrained, supervisory role for courts when consenting to withdrawals under Section 321 Cr.PC and affirmed that political or public-policy considerations, if bona-fide evaluated by the Public Prosecutor, may legitimately underpin such withdrawals. No new precedent overruling past case-law was set, but the judgment clarified that appellate courts ought not to re-open factual issues once both the Public Prosecutor and trial court have complied with the procedural requirements of Section 321.
The majority concluded:"...when we uphold the order of the High Court and that of the Special Judge, we have only upheld the propriety of the orders tested against the scope of Section 321 CrPC. The number of true cases that get crucified at the altar of the doctrine of benefit of doubt is legion. Since the scope of this appeal does not and cannot extend to the consideration of the merits of the case in depth, I have advisedly not embarked upon such an enquiry. I firmly believe that this Court while deciding cases should consider only the legal issues involved and not the individuals involved."
The case was concerned with the withdrawal of two vigilance prosecutions (Vigilance P.S. Case No. 9(2)78 and P.S. Case No. 53(8)78) filed against Dr Jagannath Mishra, former Chief Minister of Bihar and others for alleged offences of corruption, conspiracy and forgery in the affairs of the Patna Urban Co-operative Bank.
After a change in the State Government, a Cabinet Sub-Committee headed by Dr Jagannath Mishra (the then Chief Minister) resolved on 24 February 1981 that continuing the cases was inexpedient. The Law Department accordingly instructed the District Magistrate to have the Special Public Prosecutor (P.P.) file an application under Section 321 of the Code of Criminal Procedure, 1973 (CrPC). On 16 June 1981 the newly-appointed Special P.P., L.P. Sinha, prayed before the Chief Judicial Magistrate-cum-Special Judge, Patna, for permission to withdraw. The Special Judge allowed the request on 28 June 1981, resulting in the discharge of all accused.
Sheonandan Paswan, Deputy Speaker of the Bihar Legislative Assembly, filed a criminal revision which the Patna High Court dismissed in limine on 14 September 1981. He obtained special leave to appeal to the Supreme Court. A 3-Judge Bench of Justices Tulzapurkar, Baharul Islam and R.B. Misra dismissed the appeal by majority on 16 December 1982. On review, a 3-Judge Bench admitted the petition and directed rehearing by a Constitution Bench. Subsequently, the 5-Judge Constitution Bench of Chief Justice P.N. Bhagwati and Justices G.L.Oza, E.S. Venkataramiah, V. Khalid and S. Natarajan delivered split verdicts; by majority, the appeal was ultimately dismissed and the withdrawal order affirmed.
The 5-Judge Bench grappled with the following legal issues:
What is the scope of a Public Prosecutor’s discretion under Section 321 CrPC to withdraw from a prosecution?
What is the nature of the court’s “consent” under Section 321 and on what grounds may it be granted or refused?
Was the application for withdrawal filed by L.P. Sinha valid, given the earlier appointment of another Special P.P.?
Did the Special Judge and the High Court err in granting/affirming consent for withdrawal in the facts of the present case?
All the five Judges agreed that the twin considerations under Section 321 are (i) the Public Prosecutor’s independent judgment and (ii) the furtherance of public justice. The Bench, however, was divided on their application to the facts.
The majority comprising of Justices Venkataramiah, Khalid and Natarajan held:
The Special P.P. was validly appointed and nothing showed mala fides.
His four stated grounds fell within the recognised categories of “public policy, political harmony and paucity of evidence”.
The Special Judge expressly recorded that he had examined the case diary and other materials; such brief order meets the supervisory standard set by Section 321.
Appellate interference under Article 136 is confined to glaring illegality; none existed.
The minority comprising of Chief Justice Bhagwati, C.J. and Justixe Oza held:
Once a chargesheet was ready, insufficiency of evidence could not justify withdrawal; the Magistrate should decide under Section 239.
Because the decision to withdraw emanated from a Cabinet meeting presided over by the principal accused, public confidence in justice would be undermined.
The Special P.P. appeared to have acted on executive command rather than independent assessment.
Legal Backdrop
The prosecution of criminal cases is conducted by the Public Prosecutor because in criminology, an offence which is done by a person is not confined to any particular individual, it extends to the whole society, therefore, the state itself is a party.
Section 321 of the Criminal Procedure Code enables the Public Prosecutor or the Assistant Public Prosecutor to 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. For doing so, consent of the Court is necessary.
Section 321, Cr.P.C. corresponded to section 494 of the Old Code except that a proviso has been newly added. The proviso laid down that consent of the Central Government should be obtained before a Public Prosecutor moves the Court for the withdrawal from prosecution, whenever the offence relates to a matter to which the executive power of the Union extends 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.
Section 321, Cr.P.C. has now been replaced by Section 360 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
Only the Public Prosecutor or Assistant Public Prosecutor in charge of a particular case can apply for withdrawal from prosecution. A public prosecutor cannot apply for withdrawal in case of a private complaint. The consent of the Court is mandatory before any withdrawal can be granted. The court must exercise judicial discretion and scrutinize the reasons behind the withdrawal to ensure it is not sought on extraneous grounds or against the interest of justice. The withdrawal application can be made at any time before the judgment is pronounced. If withdrawal is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences. If withdrawal is made after a charge has been framed, the accused shall be acquitted in respect of such offence or offences. For certain categories of cases, prior approval from the Union Government is mandatory before the Public Prosecutor can move the court for withdrawal. These include cases where the offences relate to matters under the Union's executive power if it was investigated by the Delhi Special Police Establishment, involves misappropriation or damage to Union Government property and the offence was committed by a Union Government servant in official duty.
Section 321 does not apply to private complaints since the state is not involved in prosecuting such cases.
The court can reject withdrawal applications that lack proper justification. Valid grounds for withdrawal include: Public policy considerations, interest of administration of justice, inexpediency of prosecution for reasons of state, paucity of evidence, broader public interest like maintenance of law and order and cases against public interest.The court is required to ensure that withdrawal serves the interests of justice and is not influenced by extraneous considerations.
The
new Bharatiya Nagarik Suraksha Sanhita, 2023 was introduced Section 360
to replace Section 321 of CrPC, with several significant changes:
360.
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,—
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b)
if it is made after a charge has been framed, or when under this
Sanhita no charge is required, he shall be acquitted in respect of such
offence or offences:
Provided that where such offence—
(i) was against any law relating to a matter to which the executive power of the Union extends; or
(ii) was investigated under any Central Act; or
(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government; or
(iv)
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 has not 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:
Provided further that no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case.
The most important change is that the victim must be heard before any withdrawal is allowed. The erstwhile CrPC did not provide this right to victims, but BNSS makes it mandatory for courts to hear the victim's views before granting consent for withdrawal.
Under BNSS Section 360, the requirement for Union Government permission has been significantly expanded.
Old provision (CrPC Section 321): Only required Central Government permission for cases investigated by Delhi Special Police Establishment
New provision (BNSS Section 360): Requires permission for any offence investigated under any Central Act, regardless of the investigating agency
In the case Sheo Nandan Paswan Vs. State of Bihar and others (1983) 1 SCC 438 the Supreme Court opined that Section 321 of the code enables the Public Prosecutor to withdraw from the prosecution with the consent of the Court. Before on application made U/S 321 Cr.P.C. the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence and secondly that the Court, before which the case is pending can not give its consent to withdraw without itself applying mind to the fact of the case. The Supreme Court also held that the Public Prosecutor can not act like a post box or act on the dictate of the State Government. He/She has to act objectively as he is also an officer of the Court. At the same time Court is also free to assess whether the prima facie case is made or not. The Court if satisfied can also reject the prayer. But it can not be said that a public prosecutor’s action will be illegal, if he receives any communication or instruction from the Government. On the contrary the Public Prosecutor can not file an application for withdrawal from prosecution on his own without instruction from the Government. The majority of Judges in this case cited four grounds for seeking withdrawal from prosecution-
1. lack of prospect of successful prosecution in the light of evidence,
2. implication of persons as a result of political and personal vendetta,
3. inexpediency of the prosecution for reasons of State and public policy,
and
4. adverse effects that the continuance of the prosecution will bring to the public interest in the light of the changed situation.
In Subhash Chandra vs. Chandigarh Administration (1980) 2SCC 155, Supreme Court held that the Public Prosecutor who alone is entitled to pray for withdrawal, is to act not as a part of executive but as a judicial limb and in praying for withdrawal he is to exercise his independent discretion even if it incurs the displeasure of his master affecting continuance of his office.
Permission for withdrawal from prosecution cannot be granted mechanically. Withdrawal must be for proper administration of justice and only in Public Interest. It has been held by the Supreme Court in Abdul Karim and others vs. State of Karnataka (2000) 8 SCC 710, that an application under Section 321 Cr.P.C. could not be allowed only on the ground that the State Government had taken a decision for withdrawing the prosecution and such an order could only be passed after examining the facts and circumstances of the case..........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. The Court, after considering the facts of the case, has to see whether the application suffers from such improprieties or illegalities as would cause manifest injustice, if consent was given.
In Rajender Kumar vs. State through Special Police Establishment, (1980) 3SCC 435, the Supreme Court held that "It shall be the duty of the Public Prosecutor to inform the grounds for withdrawal to the Court and it shall be the duty of the Court to appraise itself of the reasons which prompt the Public Prosecutor to withdraw from the prosecution. The Court has a responsibility and a stake in the administration of criminal justice and so has the Public Prosecutor, its ‘Minister of Justice’. Both have a duty to protect the administration of Criminal justice against possible abuse or misuse by the Executive by resort to the provision of Section 321, Cr.P.C. The independence of the judiciary requires that once the case has travelled to the Court, the Court and its officers alone must have control over the case and decide what is to be done in each case.”
Before instructing the Public Prosecutor for withdrawal from the Prosecution, State Government should also consider the matter carefully and the file in which consideration is made should contain reasons. When a matter is for benefit of society there is no scope of its being confidential. If this procedure is followed chances of favouritism or extraneous political considerations would be curbed to a great extent.
Who can withdraw prosecution:
Section 321, Cr.P.C. enables the Public Prosecutor or the Assistant Public Prosecutor in charge of a case to withdraw from the prosecution with the consent of the Court. It is necessary that the permission of the State Government shall be filed in the Court. When the case was being conducted by a Special Public Prosecutor and subsequently another Special Public Prosecutor was appointed to conduct the case without cancelling the engagement of the earlier appointed Special Public Prosecutor, in the case of Sheo Nandan Paswan, it was held that the latter Special Public Prosecutor could apply for withdrawal from prosecution. But a Public Prosecutor has no power to withdraw a case institution on private complaint.
The application for withdrawal from prosecution may be made at any time before the judgment is pronounced. So the Public Prosecutor may file an application for withdrawal from prosecution at any time ranging between the Court taking Cognizance of the case till such time the Court actually pronounces the judgment.
In Rajendra Jain Vs. State (1980)3 SCC 434, the Supreme 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.
If a person has been convicted by trail Court and case is pending before Appellate Court, then at this stage the Public Prosecutor can not move an application before Appellate Court for withdrawal from prosecution because under Sec 321 Cr.P.C. ‘Court’ means Trial Court, not Appellate Court and also prosecution is made before a trial Court. So, the Public Prosecutor can not move an application for withdrawal from the prosecution before an Appellate Court.
Section 321, Cr.P.C. does not make it necessary for the Court to record reasons before consent is given. However, it does not mean that consent of the Court is a matter of course. When the Public Prosecutor makes the application for withdrawal after taking into consideration all the materials before him the Court exercises its judicial discretion by considering such materials and on such consideration either gives consent or declines consent. For justice, it is necessary that the Court should record reasons about his satisfaction with the view of the Public Prosecutor but a detailed order is not required. Any private individual can oppose the application for withdrawal from prosecution and it cannot be discounted on grounds of locus standi.
In Sheo Nandan Paswan Vs. State of Bihar (1987) 1 SCC 288, the Supreme Court has held that since a citizen can lodge an FIR or file a complaint and set machinery of Criminal law in motion, any member of society must have locus standi to oppose withdrawal. Particularly the offences of corruption and criminal breach of trust, being offences against society, any citizen, who is interested in cleanliness of administration is entitled to oppose application for withdrawal of prosecution.
Section 321 of the Criminal Procedure Code enables to the Public Prosecutor to withdraw from prosecution with the consent of the Court. All that is necessary to satisfy the Section is to see that the Public Prosecutor acts in good faith and that the Court is satisfied that the exercise of discretion by the Public Prosecutor is proper. The judgement of the Public Prosecutor under the section cannot be lightly interfered with unless the Court comes to the conclusion that the Public Prosecutor has not applied his mind or that his decision is not in the interest of public policy. The court being the ultimate repository of legislative confidence has to be circumspect in grant of its consent to withdrawal from the prosecution.
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