By: Milind Malhar Sharma


Public Prosecutors play important roles like representing the state and are charged with proving the guilt of the accused in the criminal justice system.. This points us towards an interesting set of questions – should public prosecutors be allowed to withdraw criminal cases from prosecution leading to potential criminals not facing any prosecution and escaping liability? What kind of circumstances can justify such an action? Are these decisions, if taken, totally devoid of any socio-political influence? What should be the legitimacy of a provision like Section 321 of the criminal procedure code (“CrPC”) in a faltering liberal democracy like India? This article attempts to navigate through answering these difficult questions. . While it could have its uses as a provision of law, as it helps ease the burden on the judiciary by reducing their potential workload, it is argued that the confinement of the Public Prosecutor’s discretion in Section 321, CrPC, by the executive will of state governments creates room for great misuse. It begins by understanding the scope of the powers under Section 321 and gives an overview of the major judgements of the Indian Supreme Court on the same. It then goes on to elaborate upon the challenges which are posed in enforcing free-decision making in decisions of public prosecutors to withdraw criminal cases in cases of those who are politically powerful. The article then gives an overview of some of the remedies evolved in the UK to address the rights of victims as stakeholders by creating a system of reviewing the decisions of public prosecutors. Finally, the article concludes by suggesting measures for reform and with the hope that executive interference through directions and advice in decisions of public prosecutors is reduced in the future.


A bare reading of Section 321 makes it clear that a case can be withdrawn both before and after a charge has been framed as long as the judgement has not been given. Under Section 321(a) the accused stands discharged in case a charge has not been framed and as per Section 321(b) , the accused gets acquitted in case a charge has already been framed if the case is withdrawn by the prosecutor.   In Balwant Singh v. State of Bihar, the Supreme court clearly held that the matter lies solely at the hands of the public prosecutor who has to exercise due diligence in deciding whether or not to withdraw a particular case.  In Sheo Nandan Paswan v. State of Bihar and Ors., the court held that the decision of the public prosecutor seeking to withdraw the case should be free from external influences. Noting the role of the court as merely “supervisory” in granting consent to the withdrawal, it was held that the duty of the Court was “not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations.” And that is precisely where the section becomes problematic and tricky to apply.

While the idea of the public prosecutor being free from any external influences is attractive in principle, it is practically difficult to achieve as the judgement fails to consider how political and monetary pressures can potentially influence these decisions. Yogi Adityanath, the present Chief Minister of Uttar Pradesh has been embroiled in a number of criminal cases, some of them consisting of serious offences like hate speech and inciting communal violence. His government, as soon as it came to power, decided to withdraw several of these cases which resulted in him becoming one of the first chief ministers to withdraw cases against himself. The government has also sought to withdraw cases involving several politicians who have been accused in the Muzzafarnagar riots.  In slightly different circumstances, Moreover, as shown by Mithilesh Narayan Bhatt, Section 321 gets misused in a number of cases involving Naxalites/ Maoists when they resort to pressuring the government to withdraw cases against members accused of heinous crimes by kidnapping influential people.

 While section 321 does not mention state government, Hatti and Ranga have argued that courts have interpreted the section to mean that state governments can give instructions to public prosecutors to withdraw cases on grounds of policy reasons or public interest as noted in Subhash Chander v. State. In cases where instructions are given by the government, if the public prosecutor presents an application to the court for withdrawing a particular case and is able to show that besides the instructions from the government, they also applied their own mind, the application can be accepted by the court. However, ifafter the Public Prosecutor comes to the conclusion that, contrary to the instructions of the Government, a particular case does not warrant withdrawal, the only legitimate option left for him is to resign besides making an application for withdrawal and offering the court his views for why the application is not sustainable.. It thus becomes difficult in some situations to assess whether the directions issued by the government are bonafide in nature or not, especially when those in high offices are involved and at times are acting in self-interest rather than public interest as shown by the example of Yogi Adityanath. It may result in not only the miscarriage of justice but affects the rights of victims involved in the cases as well. How do we then go about addressing this issue?


Prosecutorial discretion has been a major issue in several countries and the Victim’s Right to Review scheme (“VRR”) is a response which has come out in recent years in England. The Crown Prosecution Service (“CPS”)is the public agency responsible for conducting criminal prosecutions in England and Wales.  VRR essentially gives victims of crimes a mechanism through which they can check the decision of the CPS to not bring charges or the decision to terminate proceedings. The system came partly in light of  R. v. Killick, where the court held that victims of crime had a ‘right’ to seek a review of the CPS’sdecision not to prosecute. As a result, the VRR came into being. Given the complexity of the VRR process, the scope of enquiry of this article is limited to only explaining its essence. The key idea is that the VRR creates a multiple-step process with each stage of the review being time-bound in accordance with the time limits in the victim’s code. This encourages victims who are aggrieved with such decisions to file applications to the CPS and brings in accountability. There are debates regarding the effectiveness of the system. Theoretically, the VRR seems to meet the criteria for addressing the needs of the victims. However, some scholars have argued that the way the VRR operates in practice may undermine its capacity to achieve its stated transparency and victim satisfaction-based objectives.  This does not take away from the fact that it has been a long-awaited positive change in ensuring that justice is done in criminal proceedings. Despite its shortcomings, mechanisms in India can and should be evolved modelled around those like the VRR scheme. In a country like India, having such mechanisms will not only ensure speedy justice but can also potentially go a long way in ensuring that people access courts enthusiastically as a means to find their remedy i.e., it will strengthen the faith of the common people in the Judicial system.


A number of issues exist in the present case as demonstrated above. There is a need to strike a balance between respecting bonafide decisions of prosecutors to withdraw cases which lack merit and preventing the arms of the executive to encroach upon such decisions. This becomes even more apparent in the case of non-compoundable offences because those cases are, by their very nature, far more serious and the accused cannot be left off easily without any repercussions. Besides these, the role of victims as stakeholders have to be positively acknowledged. In Anita Kushwaha v. Pushap Sudan, the Supreme Court held that access to justice is a fundamental right under article 14 and article 21 of the constitution. It is suggested that to fulfil this right in part, a scheme akin to the VRR can and must be adopted in India so that victims may seek reviews of decisions where cases are withdrawn.

As for the present legal framework, it is suggested that the judiciary must play a far more active role in determining the outcome of the cases where section 321 is invoked by the public prosecutor. It is suggested that the words “in public interest and in the interests of justice” may be inserted in Section 321, after the words “the Public Prosecutor or Assistant Public Prosecutor in charge of a case may…”. This, along with the judiciary playing more of an ‘adjudicatory role’ in such cases, can help in better decisions. Beyond this, there needs to be a cultivation of ‘public moral judgement’ when it comes to the withdrawal of cases as well as protective measures to ensure that prosecutors are not coerced to take back cases. The judiciary must be mindful of these factors when confronted with cases. The way Section 321 is drafted might pose difficulties in preventing state interference where it is not warranted. It is unlikely that the parliament would pass a law that reduces the power of the government to advise on the withdrawal of cases. However, pushing for the same is a necessity because if we don’t, it would lead to the denial of justice to victims while those who represent them in parliament will walk away scot-free without being held accountable.


When the executive oversteps its boundaries, it creates fault lines for any functioning, healthy liberal democracy. The independence of the judiciary is important but it is also important to remember that those societies “which place great reliance on written constitutions tend to trust the judiciary with the task of co-ordination. In doing so they invariably run the risk of politicising the administration of law by inviting jurisdiction over matters of political controversy.” When those who are part of the executive tend to act in self-interest in issuing directions for withdrawal of criminal cases, it becomes important for the judiciary to be mindful of its role in making sure that such cases are not readily withdrawn on mere asking. Ordinarily, the same shouldn’t be allowed in the first place because of the implications entailed. The issue was perhaps best articulated by the Supreme Court in the Sheo Nandan Paswan case where the court opined that ‘it would be desirable in the interest of public justice that high political personages, accused of offences should face the judicial process and get discharged, rather than seem to manoeuvre the judicial system and thus endanger the legitimacy of the political and judicial process.’

Section 321, without a doubt, is one of the most useful sections in the CrPC. It can be of help to a lot of public prosecutors who are over-burdened with cases to get rid of unnecessary ones which can help reduce their workload. It also saves the judiciary precious time from arduous litigation which can then be focussed on more pressing matters. All that is required for now is for the judiciary to take special care when some of these cases are likely to involve prominent people of society. This, in fact, is necessary in order to apply the law as it is, in the interest of complete justice.

[ The author is a 4th-year law student at Jindal Global Law School, O.P. Jindal Global Law University ]


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