Section 321 CrPC: Withdrawal from Prosecution
Section 321 of the Code of Criminal Procedure, 1973 governed withdrawal from prosecution under the CrPC. It empowered the Public Prosecutor or Assistant Public Prosecutor in charge of a case to seek withdrawal before judgment, but only with the consent of the Court.
Meaning of withdrawal from prosecution under Section 321 CrPC
Withdrawal from prosecution is a statutory procedure by which the Public Prosecutor or Assistant Public Prosecutor who is in charge of the case may ask the Court for permission to discontinue the prosecution of an accused, either completely or in relation to one or more offences. The prosecutor cannot finally terminate the prosecution merely by filing an application: the consent of the Court is required.
The power could be exercised at any time before judgment was pronounced. Its legal consequence depended on the stage at which the withdrawal was permitted: withdrawal before framing of charge resulted in discharge for the relevant offence or offences, while withdrawal after framing of charge, or in a case where no charge was required, resulted in acquittal.
Section 321 CrPC - statutory provision
321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal:
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(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.
Central Government permission proviso: Where the offence was against a law relating to a matter to which the executive power of the Union extended; was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946; involved misappropriation, destruction of or damage to Central Government property; or was committed by a Central Government servant while acting or purporting to act in discharge of official duty, a prosecutor not appointed by the Central Government could not move for withdrawal unless permitted by the Central Government. Before giving consent, the Court was required to direct production of that permission.
Essential requirements of Section 321 CrPC
- Application by the prosecutor in charge: The statutory discretion belongs to the Public Prosecutor or Assistant Public Prosecutor in charge of the case.
- Independent application of mind: The prosecutor is expected to form an independent opinion on relevant material and on whether withdrawal serves the administration of justice and public interest.
- Consent of the Court: Withdrawal does not become effective without judicial consent. The Court examines whether the request is based on legitimate considerations and whether consent would advance, rather than thwart, justice.
- Time limit: The request may be made before judgment is pronounced.
- Withdrawal may be complete or partial: It may concern the entire prosecution or one or more of the offences for which the person is being tried.
Discharge and acquittal after withdrawal
| Stage of withdrawal | Effect under Section 321 CrPC |
|---|---|
| Before charge is framed | The accused is discharged in respect of the offence or offences covered by the withdrawal. |
| After charge is framed | The accused is acquitted in respect of the offence or offences covered by the withdrawal. |
| Where the Code requires no charge | The accused is acquitted in respect of the offence or offences covered by the withdrawal. |
Role of the Public Prosecutor and the Court
Judicial decisions on Section 321 emphasize that the prosecutor is not merely a channel for an executive direction. The prosecutor must consider the relevant material and independently decide whether seeking withdrawal is justified. Lack of evidence may be relevant, but the provision is not confined to that situation; broader considerations connected with public justice may also be relevant.
The Court performs a judicial and supervisory function when deciding whether to consent. It may examine the reasons and surrounding circumstances to satisfy itself that the prosecutor has acted in good faith, on relevant grounds and in the interest of justice. The Court is not expected to conduct the full trial while deciding the withdrawal application.
Uttar Pradesh State amendment
For Uttar Pradesh, the State amendment inserted a requirement that the prosecutor act on written permission of the State Government, which is to be filed in Court. The amendment was introduced by U.P. Act 18 of 1991 with effect from 16 February 1991. Its application should be considered together with later procedural law and any applicable savings provisions.
Section 321 CrPC and Section 360 BNSS
Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is the corresponding provision on withdrawal from prosecution. The new provision broadly retains the structure of Section 321 CrPC but includes changes, including an express requirement that the Court give the victim an opportunity of being heard before allowing withdrawal. This page is focused on the CrPC position before implementation of the BNSS.
Key takeaway
Section 321 CrPC did not confer an unconditional right to terminate a prosecution. The prosecutor in charge had to exercise statutory discretion before judgment, and the withdrawal became effective only after the Court gave consent. The stage of the case determined whether the consequence was discharge or acquittal.
This page is intended for general legal information. The applicable provision may depend on the date and procedural history of a particular case.