‘Criminal Law’, in terms of Entries 1 and 2 under List III of the Constitution of India, is a subject-matter of Concurrent List, which grants legislative competence to both the State Governments and Central Government. In pursuance thereof, the Indian Penal Code, 1860 (“IPC’) and Code of Criminal Procedure, 1973 (“Cr.P.C’) have been amended from time to time, to collectively regulate the criminal jurisprudence in India. In addition to such competence, the Governments at both levels are also tasked with the duty of prosecuting in cases of criminal offences, with the primary prerogative of State Governments. For the same, Section 24 and 25 of Cr.P.C empowers the State Governments and Central Government to appoint Public Prosecutor and Assistant Public Prosecutor to carry out the mandate of prosecution on their behalf; with an additional power to the State Governments under Section 25A to appoint a Directorate of Prosecution.
In addition to the mandate of prosecution, the Cr.P.C also empowers the State Governments and Central Government to revise charges, or even withdraw the entire case. This mandate has been provided in light of the principle that since the State Governments and Central Government have the power to prosecute, they should also have the power not to prosecute or withdraw the already instituted prosecution. However, this power of withdrawal, inspite being unfettered, has to mandatorily go through the judicial scrutiny.
In the Indian political landscape where most of the stakeholders in the Government, and even the contesting candidates, at the Union, State and Municipal levels are having records of criminal cases registered against them, the need of striking a balance in the withdrawal power by Government assumes great importance. In addition thereto, the onus on judiciary also intensifies, as it is the sole checkpoint on this route of withdrawal.
2. What’s the legal mandate for withdrawal by State Government?
Section 321 of Cr.P.C 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 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..” On bare perusal, this power, with the sole hurdle of ‘consent of court’, appears to be absolute. Putting it simply, the prosecutors, acting with or without the concurrence of State Government, are empowered to withdraw any case against any person charged with any offence at any stage of the proceedings. However, the ‘final nod’ of Courts in terms of consent is the only hook preventing the factors of biasness, arbitrariness, and unreasonableness on the part of the prosecuting agency.
In addition thereto, the Courts have to check whether the withdrawal is sought by the prosecutor by applying his independent mind, or whether the same is being done upon the direction of the State Government. In either case, the Courts have, at times, opined that the State Government is empowered to direct the prosecutor to seek withdrawal, and at times, have also opined that the withdrawal must be sought by the prosecutor independently without any duress as the prosecutor acts as a limb of the judicative process, not as an extension of the executive.
3. Grounds for withdrawal of a case by State Government.
Section 321 or any other provisions of Cr.P.C are silent in terms of grounds for withdrawal of a case by the State Government. However, over the years, the Supreme Court and High Courts have evolved this jurisprudence and have laid down certain specific grounds on which the withdrawal can be sought. These grounds are essentially the divergent versions of the fundamental ground that the prosecuting agency is of the opinion that the case will ultimately result in acquittal, and that the ends of the justice would be met if the case is withdrawn. Such grounds, inter alia, includes:
a. Opinion of the prosecutor and the affirmation of the Court that the case will ultimately result in an acquittal.
b. Inexpediency of the prosecution for the reasons of public policy and/or public interest.
c. Implication of accused out of purely political and/or personal vendetta.
d. Substantial change in the social and legal landscape.
Furthermore, and perhaps more importantly, the Courts are inclined towards weighing the reasons or intention behind withdrawal, instead of relying solely on the ground(s) on which such withdrawal has been sought. The Courts test the withdrawal on the following considerations:
a. Whether it’s an attempt to interfere with the normal course of justice for illegitimate reasons or purpose?1
b. Whether the withdrawal is sought in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law?2
c. Whether the withdrawal suffers from such improprieties or illegalities as would cause manifest injustice if consent was given?3
d. Whether the requirement of public justice outweighs the legal justice of the case so that withdrawal from the prosecution could be permitted in the larger interest of public justice?
e. Whether the withdrawal reasons for withdrawal are satisfying the judicial conscience of the Court?
f. Whether the withdrawal is in the interest of the administration of justice?
However, irrespective of the aforementioned grounds and tests, the case for withdrawal ought to inspire the confidence of the Court to consent to the withdrawal. In exercise of such consent, the courts have, at times, taken the supervisory role, and at times, adjudicatory role. Being said that, the assessment of ‘actual nature of the role’ is yet a matter for another time.
4. Effect of withdrawal
The ultimate effect of withdrawal is that the accused is set at liberty from further prosecution. However, the legal label of the effect of withdrawal differs in terms of the stage at which the withdrawal is done. Section 321 provides that first, if the withdrawal is made prior to the framing of charge(s), the accused shall be discharged in respect of concerned offence(s). Secondly, if the withdrawal is made after the framing of charge(s), the accused shall be acquitted in respect of concerned offence(s). Lastly, if the withdrawal is made when no charge under the Cr.P.C is required, the accused shall be acquitted in respect of the concerned offence(s).
Post withdrawal, the charges against the accused takes the shape of mere allegations, and the accused gains the immunity in the form of defense of double jeopardy. With that, the duty of State Government intensifies to exercise this power of withdrawal cautiously and only in legitimate cases. However, this power is often misused and the entire concept of justice is vitiated.
5. Non-competence of State Government to withdraw in certain cases
In addition to granting the power of withdrawal to the State Government, Section 321 of Cr.P.C also enunciates certain ‘case basis’ exceptions or limitations to this power, wherein the State Government becomes incompetent to withdraw cases. The proviso lists out cases in which, if the Prosecutor is not appointed by the Central Government, prior approval or permission of the Central Government is required for withdrawal. It lists following cases:
a. If the offence was against any law relating to any matter on with the executive power of Central Government exists, or
b. If the offence was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946, or
c. If the offence involved the misappropriation, destruction or damage of any property belonging to the Central Government, or
d. If the offence was committed by a person in the service of the Central Government while acting or purporting to action the discharge of his official duty.
6. Recent examples of withdrawal of criminal cases
With a change of Governments in power, wide-spread categories of decisions make it to the news headlines, amongst which, the most prominent is the withdrawal of cases against the Politicians, party affiliates and related activists. These withdrawals vary from charges of commission of heinous offences to that of offences against public tranquillity like unlawful assembly, rioting and vandalism. The latter withdrawals are mostly done in bulk, while the formers are done on a pick-and-chooses basis. Recent examples, spread around various States, are:
a. The decision/proposal of Madhya Pradesh Government to refer 50,000 cases against Congress Leaders, as identified by the district committees, to the State Home Department for withdrawal. (June 2019)4
b. The decision/proposal of Uttar Pradesh Government to withdraw 20,000 cases against BJP MLAs, politicians and activists, including CM Yogi Adityanath. (December 2017)5
c. The decision/proposal of Haryana Government to withdraw 85 cases registered during the quota violence in February 2016. (February 2018)6
d. The proposal of Karnataka Government to withdraw criminal cases, including FIRs, en masse. (February 2018)7
 Sheonandan Paswan v. State of Bihar, AIR 1987 SC 877, Para 78
 Abdul Karim v. State of Karnataka, 2000 8 SCC 710, Para 19
 Sheonandan Paswan (Supra), Para 73