Can a Public Prosecutor or Assistant Public Prosecutor in-charge of a Case withdraw any Person from Prosecution?

Section 321 provides that 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 alleged offences.

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If such a withdrawal is made before the charge is framed, the accused is to be discharged. If, however, such a withdrawal has been made after the charge has been framed, or when no charge is required to be framed under the Code, such a person is to be acquitted in respect of such offence.

The previous approval of the Central Government is also required for such withdrawal, if the offence—

(i) Was against any law relating to a matter to which the executive power of the Union extends; or

(ii) Was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946; or

(iii) Involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government; or

(iv) 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.

In Bansi Lal v. Chandan Lal (A.I.R. 1976 S.C. 370), the Supreme Court has observed that the request to grant permission under S. 321 should not be accepted as a necessary formality for the mere asking, but the Court must be satisfied from the materials placed before it, that the grant of permission would serve the administration of justice, and that permission was not being sought overtly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain.

Justice ordinarily demands that every case must reach its destination, and should not be interrupted en route. If some public consideration bearing on the administration of justice justifies withdrawal, the Court may accord its permission; but not so, if no public policy bearing on the administration of justice is involved.

The Court has to be vigilant when a case has been pending before it, and must not succumb to an executive suggestion made in the form of an application for withdrawal with a bunch of papers tacked on. (Balwant Singh,—A.I.R. 1977 S.C. 2265)