Chapter XXIV
Section 321 CrPC: Withdrawal from prosecution
New Law Update (2024)
Section 360 BNSS
TRIAL COURT
Court of Magistrate / Chief Judicial Magistrate
Punishment
Procedural – Warrant / Summons Process
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(1) If it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(2) 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;
Provided that where such offence—
(a) was against any law relating to a matter to which the executive power of the Union extends, or
(b) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or
(c) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(d) 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.
Important Sub-Sections Explained
Section 321(1)
This sub-section clarifies that if the Public Prosecutor withdraws from prosecution before charges have been framed against the accused, the accused person shall be discharged, meaning the proceedings against them for that offence conclude without a full trial.
Section 321(2)
This sub-section specifies that if the withdrawal occurs after charges have been framed, or in cases where no charge is legally required, the accused shall be acquitted, signifying a formal exoneration from the offence.
Proviso to Section 321
The proviso imposes a critical restriction, stating that a Public Prosecutor cannot withdraw from prosecution in certain cases involving Central Government interests (like offences against Union laws, DSPE investigations, or those committed by Central Government employees) without first obtaining explicit permission from the Central Government. The Court must direct the prosecutor to produce this permission before granting consent.
Landmark Judgements
Sheonandan Paswan v. State of Bihar (1987):
This landmark Supreme Court judgment clarified that a Public Prosecutor’s application for withdrawal from prosecution under Section 321 CrPC requires independent application of mind, and the Court’s function is supervisory. The Court must ascertain whether the withdrawal serves the interest of public justice and is based on objective reasons, without being swayed by extraneous considerations, but it cannot substitute its own judgment for that of the Public Prosecutor.
Rahul Agarwal v. Rakesh Jain (2005):
The Supreme Court reiterated that the Public Prosecutor must act independently and in good faith when seeking to withdraw from prosecution. The Court’s consent is not a mere rubber stamp; it must apply its judicial mind to ensure that the withdrawal is genuinely in the interest of justice and not for improper reasons. The Court can examine the grounds for withdrawal but should not embark on a detailed scrutiny of the evidence.
M.N. Sankarayarayanan Nair v. P.V. Balakrishnan (1972):
While predating the 1973 CrPC, this Supreme Court ruling established key principles for withdrawal from prosecution. It held that the Court must exercise its judicial discretion to ensure that the withdrawal is in the interest of public policy and justice, and not to stifle a legitimate prosecution for ulterior motives. The Court’s role is to ensure fairness and prevent abuse of process.
Draft Format / Application
IN THE COURT OF THE [Designation of Judge, e.g., Chief Judicial Magistrate/Sessions Judge], [District Name]
Criminal Miscellaneous Application No. _______ of 20_______
IN THE MATTER OF:
The State/Complainant
Vs.
[Accused Name] S/o [Father’s Name], R/o [Address]
…Accused
APPLICATION FOR WITHDRAWAL FROM PROSECUTION UNDER SECTION 321 OF THE CODE OF CRIMINAL PROCEDURE, 1973
MOST RESPECTFULLY SHOWETH:
1. That the above-mentioned case, bearing FIR No. [FIR Number]/Case No. [Case Number], dated [Date], under Sections [Relevant IPC Sections] of the Indian Penal Code, 1860, is pending before this Hon’ble Court.
2. That the Applicant is the Public Prosecutor/Assistant Public Prosecutor duly appointed and in charge of the prosecution in the present case.
3. That after careful consideration of all facts and circumstances of the case, including [State brief, objective reasons, e.g., lack of sufficient evidence, public interest, policy considerations, prospects of conviction, etc., ensuring good faith and public justice].
4. That the Applicant has applied his independent mind to the facts and circumstances of the case and is satisfied that it is a fit case for withdrawal from prosecution in the interest of public justice.
5. [IF APPLICABLE, FOR PROVISO CONDITIONS]: That the present case [falls/does not fall] under the proviso to Section 321 CrPC. [If permission is required, state: The necessary permission from the Central Government, dated [Date], is enclosed herewith for the kind perusal of this Hon’ble Court.]
6. That the withdrawal from prosecution at this stage would result in [discharge/acquittal] of the accused person(s) as per the provisions of Section 321 CrPC.
PRAYER:
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to grant its consent to the Applicant for withdrawal from the prosecution of the accused person(s) in the aforesaid case.
AND FOR THIS ACT OF KINDNESS, THE APPLICANT SHALL EVER REMAIN GRATEFUL.
Place: [City]
Date: [Date]
(Signature of Public Prosecutor/Assistant Public Prosecutor)
Name: [Name]
Designation: [Designation]