What is the Meaning of Withdrawal from Prosecution under Section 321 of CrPC?

 

INTRODUCTION 

 

On today’s show, we will discuss the case of Ashwini Kumar Upadhyay v. Union of India & Another, 2021 SCC OnLine SC 629, wherein the Hon’ble Supreme Court inter alia discussed about the misuse of Section 321 of the Code of Criminal Procedure, 1973 (in short, “CrPC”) by Prosecutors. Section 321 of CrPC deals with the power of the Prosecutors to withdraw from the Prosecutions.

 

IMPORTANT PROVISION OF LAW

 

Before adverting any further, let us understand S. 321 of CrPC. S. 321 inter alia provides that Public Prosecutors may, with the consent of the Court, withdraw from the prosecution of any person. It provides for two contingencies.

 

a. If such Application for Withdrawal from Prosecution is made before framing of charges, then the accused shall be discharged in respect of such offences.

 

b. If such Application for Withdrawal from Prosecution is made after framing of charges, then the accused shall be acquitted in respect of such offences.

 

IMPORTANT GUIDELINES

 

In the present case, it was pointed out that various State Governments “have resorted to withdrawal of numerous criminal cases pending against M.P./M.L.A. by utilising the power vested under Section 321, Cr.P.C.” Thus, in such light, the Hon’ble Court reiterated the guidelines it had framed in relation to S. 321 in the case of State of Kerala v. K. Ajith, 2021 SCC OnLine SC 510. The relevant guidelines are: -

 

a. Consent of Court is required for a withdrawal of the prosecution.

 

b. The grounds for withdrawal of the prosecution shall not only be merely paucity of evidence but also furtherance of broad ends of public justice.

 

c. Independent Opinion must be formulated by the concerned Public Prosecutor before seeking consent of the Court for withdrawal.

 

d. The concerned Court must make efforts to appreciate the reasons for withdrawal to ensure that the same is for good and relevant reasons.

 

e. While deciding an Application for Withdrawal, the Court must be satisfied that: -

 

i. There is no attempt to interfere with the normal course of justice for illegitimate reasons or purposes.

 

ii. The Application must have been made bona fide and not to stifle the legal process.

 

iii. The Application for Withdrawal must not suffer from any infirmity that may lead to manifest injustice, if consent is given.

 

iv. The grant of consent must further the administration of justice.

 

v. The permission must not have been sought with an ulterior purpose not connected with the legal process.

 

f. While deciding an Application for Withdrawal, the Court may scrutinize the nature and gravity of the offence and its impact upon public interest.

 

g. In cases, where both the Trial Court and the Revisional Court have had concurrent findings in granting or refusing consent, the Supreme Court would also exercise caution in disturbing the concurrent findings. It may interfere in cases where there has been a failure in applying correct principle of law to decide such an Application for Withdrawal.

 

HELD BY THE COURT

 

Therefore, the Hon’ble Supreme Court was pleased to direct that “no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without the leave of the High Court” and the High Courts were requested to “examine the withdrawals, whether pending or disposed of since 16.09.2020, in light of guidelines laid down by this Court.”

 

That was all about the case. So, what are my concluding remarks?

 

CONCLUDING REMARKS

 

This Order by the Hon’ble Supreme Court is a welcome move to curb the hooliganism that is prevalent in India at the behest of political persons. Many politicians arm-twist the State Governments to withdraw from the prosecutions initiated against them. Such connivance is well-known in India, and it was high time that misuse of legal provisions such as S. 321 is stopped. Such directions depict the seriousness of the Hon’ble Supreme Court to deal with criminal cases against the politicians. In the present case, there are other issues as well that remain to be decided such as safety of witnesses, trial of cases where politicians are the complainants, jurisdiction of courts to try the cases against the politicians etc. It would be interesting to see the manner in which the Court deals with such issues.