321 CrPC

 

Statue

1. 321 CrPC : Withdrawal of Prosecution
1. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the court, at any time before the judgement is pronounced withdraw from the prosecution of any person either generally or in respect of any one or more of the offenses for which he is tried; and upon such withdrawal
2. (a) if it is made before a charge has been framed the accused shall be discharged in respect of such offence or offences
3. (b) 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.
4. 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 investigation by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946
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 has not been appointed by the Central Government he shall not unless he has been permitted by the central govt

Important Points

1. Role of Court 
1. Access whether the application is made in good faith, in the interest of justice and public policy
2. NOT to stifle the process of law
3. PRESUMED application filed without good faith is based on external influence.
4. The Real TEST 
1. Decision of PP will destroy the administration of Justice
5. Power of court to grant consent for a withdrawal petition is similar to the power under Section 320 CrPC to compound offences
6. Court in 321, 320 CrPC - will NOT have to enquire into the issue of conviction or acquittal of accused person and will only need to restrict itself to providing CONSENT through the exercise of jurisdiction in supervisory manner.
7. 321  does not provide any grounds for seeking withdrawal
1. Public policy,
2. interest of administration of Justice
1. Scrutinize the nature and gravity of the offence and its impact upon public life especially matters involving public funds and discharge of public trust
3. inexpediency to proceed with the prosecution for reasons of state and 
4. paucity of evidence.
5. ONLY restrict itself to ONLY determining if the Prosecutor has exercised the power for the above legitimate reasons.
8. Acquittal or discharge order u/s 321 are not same as the normal final orders in criminal case
1. Conclusion wont be backed by a detailed discussion of the evidence in the case acquittal or absence of prima facie cases or groundlessness in the case of discharge.
2. Public Prosector 
1. should form independent opinion before seeking the consent of the court to withdraw from the prosecution
2. 
   

Case Law

1. Rajendra Kumar Jain Vs State through Special Police Establishment & Ors (1980) 3 SCC 435
1. Power of PP to withdraw from the prosecution for one or more offenses can be exercised in furtherance of public Justice - social, economic & Political
2. Offence that the respondent are accused of committing occurred during the presentation of State Budge, in the premises of LA
3. Their actions are manifestations of effective political participation, and are in furtherance of political purpose which is valid ground for withdrawal of prosecution
2. State of Bihar Vs Ram Naresh Pandey & Anr
1. Section 494 of earlier CrPC 1898
2. Granting consent to withdraw prosecution the court exercises a judicial function.
3. However, in doing so the court need not determine the matter judicially.
4. Court ONLY has to satisfy that Executive function of PP has NOT been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes.
5. Magistrate power u/s 494 CrPC  - to prevent abuse of power of the executive.
3. M.N Sankaraynarayanan Nair Vs P. V Balakrishnan 1972 1 SCC 318
1. Power conferred on PP u/s 494 crpc 1898 are to be exercised in furtherance of the object of law
2. Para 8
1. The court also while considering the request to grant permission under the said setion should not do so as necessary formality - the grant of it is for mere asking.
2. It may do so only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organ are in duty bound to further and maintain.
4. Rajendra Kumar Jain Vs State through Special Police Establishment
1. George Fernandes, accused of rousing resistance against the Emergency 1975 and participatinging in conspiracy to do acts which may have resulted in destruction of property
2. Special PP filed S321 in view of changed circumstances and public Interest.