Factors and Considerations for Withdrawal from Prosecution
Author – Anand Prakash,
4th Year Law Student,
Symbiosis Law School, Pune.
Administration of Justice is the primary function of the Judicial Courts. One of the exceptions to the uninterrupted flow of the court process is Sec 321 Cr.P.C. Sec 321 empowers the Public Prosecutor or the Assistant Public Prosecutor to withdraw from prosecution at any time before pronouncement of the Judgement. The only rider to the provision is the consent of the court for such withdrawal. The legislative intent behind such provision is to filter those cases which may lack prospect of a successful prosecution. The reason accordable to this may be public interest, inexpediency of prosecution etc. The positive impact of such legislative work is that it unburdens that courts from the large number of pending matters before it. However, the legislative drafting of Sec 321 lacks one of the basic elements of a sound Law i.e. comprehensibility. It misses out on any indications of grounds upon which the prosecutor can move the Court to obtain its consent and considerations for the court in granting the consent. Moreover, laws to reconcile the needs of society, needs extra diligence to be observed to keep in line with the principles and objectives of the Justice system. This kind of unfettered power to the public prosecutor, in lack of any statutory guidelines, may result in non-administration of Justice.
An analysis of Sec 321 suggests that it accords two kinds of discretion. One, being executive discretion to the PP or APP and another is the Judicial discretion to the courts. The executive discretion is to apply for withdrawal from prosecution whereas the judicial discretion is to be applied in granting consent for the withdrawal. The proviso mandates permission of the Central government when 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.
As said above, the provision does not prescribe any grounds on which the PPP or APP can move the court and consideration on which the court can grant consent. It is only the principles laid down by the judicial precedents, that simplifies the scenario. Thus, it becomes of prime importance to take into consideration the decisions of the Apex Court in this regard.
The first case dealing with the interpretation and application of Sec 321 is State of Bihar v. Ram Naresh Pandey, where the role of PP was considered as an officer of the Court. This decision of the Supreme Court emphasised upon the fair exercise of his functioning in administration of criminal justice.
In Subhash Chandra v. State and Others, the court held that the PP must act as a judicial limb and not as a part of the executive, in withdrawing from prosecution, even if it occurs at the displeasure of his master affecting continuance of his office.
In Sheo Nandan Paswan V. State of Bihar, it was held that Sec 321 requires application of mind by the prosecutor and the court as well. It also laid four grounds to seek withdrawal from prosecution:-
- Lack of prospect of successful prosecution in the light of evidence.
- Implication of persons as a result of political and personal vendetta.
- Inexpediency of the prosecution for reasons of state and public policy, and
- Adverse effects that the continuance of the prosecution will bring to the public interest in the light of the changed situation.
Apart from it, any third party from public have locus standi to oppose the withdrawal particularly in offences of corruption and criminal breach of trust, for it being an offence against the society.
In Abdul Karim and others v. State of Karnataka, the Supreme court opined that withdrawal from prosecution cannot be granted mechanically. Mere decision of State government cannot be ground for consent by the court. The Court while granting its consent must see 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.
In Rajendra Kumar Jain v State through Special police establishment held that the court has a stake and responsibility in administration of justice, and so has the PP being minister of justice. It is duty of the PP to inform the court of the grounds for the withdrawal and the court ought to appraise itself of the reasons which caused the PP to apply for withdrawal from prosecution. Both has duty to protect the criminal justice system against possible abuse or misuse by the executive by its resort to Sec 321.
In Ram Narayan Yadav v. State of U.P and others, The Supreme Court emphasised upon the considerations for the state government. It was held that the power of withdrawal cannot be exercised by the state government in a whimsical or arbitrary manner and the consideration should be just and valid.
A compilation of principles laid down by the Hon’ble Supreme Court, suggest that exercise of the discretions under Sec 321 must be made on reasonable grounds and not for extraneous considerations. Their exists need of application of mind by the PP or APP and he must not act as a mere agent of the state government. The Apex court has attempted to entrust a sense of duty on the PP and the court, to consider the wider goal of administering criminal justice, while dealing with Sec 321. However, few amendments to the provision are suggested in order to keep it in line with the original legislative intent:-
Reasons by State Government – For any Decision made by the State Government, it must be accompanied with reasons which should be disclosed and not kept confidential, as anything in public interest cannot be kept confidential. Maintaining transparency avoids chances of favouritism and withdrawal being based on extraneous political considerations.
Recording of reasons – The wordings of Sec 321 does not mandates it for the court to record reasons while granting consent for withdrawal from prosecution. Introduction of such clause in the provision would make it more obvious of the factors considered by the court in granting its consent.
Opportunity of being heard – The other party must be given a fair opportunity of being heard, while dealing with a case under Sec 321, to ensure its compliance with the principles of natural justice.
The lack of express factors upon which the withdrawn can be applied for or the considerations for the court in granting its consent, opens a wider scope of Interpretation of Sec 321. The courts have always attempted to lay down principles which meets the ends of the criminal justice system. The prime motto being, that the provision should not be misused by the executive to defeat the above said purpose. The Courts, although have done a remarkable job in this regard, but there still exist need to amend the provision of Sec 321. The amendment to include express guidelines for the PP and considerations for the court, would avoid probable cases of misuse of Sec 321. A legislative work, to be of sound nature, must avoid any ambiguities and exclude any scope of interpretation.