An Unavoidable Conundrum in Section 360 Of BNSS [Withdrawal From Prosecution]
![An Unavoidable Conundrum in Section 360 Of BNSS [Withdrawal From Prosecution] An Unavoidable Conundrum in Section 360 Of BNSS [Withdrawal From Prosecution]](https://www.livelaw.in/h-upload/2024/03/25/1500x900_530362-justice-ramkumar-bnss.webp)
AN AVOIDABLE CONUNDRUM CREATED BY THE DEVIATION MADE IN CLAUSE (II) OF THE PROVISO TO SECTION 360 BNSS FROM CLAUSE (II) OF THE PROVISO TO SECTION 321 Cr.P.C. Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” for short) dealing with “Withdrawal from Prosecution” corresponds to Section 321 of the now repealed Code of Criminal Procedure, 1973 (“Cr.P.C.”...
AN AVOIDABLE CONUNDRUM CREATED BY THE DEVIATION MADE IN CLAUSE (II) OF THE PROVISO TO SECTION 360 BNSS FROM CLAUSE (II) OF THE PROVISO TO SECTION 321 Cr.P.C.
Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” for short) dealing with “Withdrawal from Prosecution” corresponds to Section 321 of the now repealed Code of Criminal Procedure, 1973 (“Cr.P.C.” for short). Let us make a comparison of the two provisions –
SECTION 360 BNSS | SECTION 321 Cr.P.C. |
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 Sanhita no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence-- (i) was against any law relating to a matter to which the executive power of the Union extends; or (ii) was investigated under any Central Act; 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, 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: Provided further that no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case. | 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: Provided that where such 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 (25 of 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, 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. |
2. Clause (ii) of the proviso to Section 321 of the now repealed Cr.P.C. contained only one category of cases for the application of the “condition precedent” of permission from the Central Government thereunder. As per the said clause if the accused was prosecuted for an offence “investigated by the Delhi Special Police establishment under the Delhi Special Police Establishment Act, 1946” and the Public Prosecutor in charge of the case was not one appointed by the Central Government, then the Public Prosecutor was debarred from seeking the consent of the Court for withdrawal from prosecution of the accused unless he was permitted by the Central Government to do so. The said clause was evidently meant to cover those cases which were investigated by the CBI. But even there, it is doubtful whether a Prosecutor not appointed by the Central Government would be in charge of a case investigated by the CBI. Now, clause (ii) of the proviso to Section 360 BNSS has taken away the aforesaid solitary situation which was there in clause (ii) of the proviso to section 321 Cr.P.C. and has made the aforesaid “condition precedent” of permission from the Central Government to all categories of offences investigated under any Central Act, regardless of the investigating agencies. Take for instance, the prosecution of a State Government servant before a Special Judge in a case investigated by the State Vigilance Police under the Prevention of Corruption Act, 1988 (“P.C. Act” for short), a Central Act. Here, the Public Prosecutor is appointed by the State Government and not by the Central Government. If such a Public Prosecutor, in an appropriate case, were to move the Special Judge for consent to withdraw from the prosecution of the accused, now under the BNSS he has to seek permission to do so from the Central Government. This was not the position under the Cr.P.C. where there was no need for him to obtain the permission of the Central Government. There are several Central Acts under which Public Prosecutors appointed by the State Governments concerned, conduct prosecutions under those Central Acts. In all such cases, if the Public Prosecutors were to withdraw from the prosecution, they will have to hereafter seek the permission of the Central Government. Had it been the intention of the framers of BNSS to make the “condition precedent” of permission by the Central Government mentioned in the Section to cases investigated by Central Agencies like the National Investigation Agency (NIA) or the Directorate of Enforcement (ED) etc., then the wording of clause (ii) ought to have been different.
3. It is relevant to note the distinction between clauses (i) and (ii) of the proviso to Section 360 BNSS. As per clause (i) the offence should be one against any law relating to a matter to which the executive power of the Union extends. As per clause (ii) the offence should have been investigated under any Central Act. Even though, laws such as the Bharatiya Nyaya Sanhita, 2023 (BNS) which was formerly the Indian Penal Code, 1860 (IPC) and the Prevention of Corruption Act, 1988 (P.C. Act) are both Central Acts, their field of legislation falls under List-III (Concurrent List) and not under List-I (Union List) in the Seventh Schedule to the Constitution of India. Hence, clause (i) of the proviso to Section 360 BNSS is not attracted in the case of BNS or PC Act even though they are both Central Acts. But that is not the position regarding clause (ii) of the proviso to Section 360 BNSS. If the offence in question was investigated under the BNS or PC Act (both of which are Central Acts) clause (ii) of the proviso to Section 360 BNSS is attracted requiring the permission of the Central Government for withdrawal from prosecution in case the Prosecutor in charge of the case was not appointed by the Central Government. The devastating and all pervading impact of clause (ii) of the proviso to Section 360 BNSS (which suffers from bad draftsmanship), is that even in the case of an ordinary prosecution under the BNS (IPC) by a Public Prosecutor appointed by the State Government, he will have to seek the permission of the Central Government before applying for consent to withdraw from prosecution.
4. A thoughtless deviation made in clause (ii) of the proviso to Section 360 BNSS from clause (ii) of the proviso to Section 321 Cr.P.C., has brought about this conundrum. It would have been better for the framers of BNSS to leave as it is clause (ii) of the proviso to Section 321 Cr.P.C. If on the contrary, their intendment was to cover Central Acts in which Central Investigating Agencies like the CBI or NIA or ED had investigated the offences in question, the wording of clause (ii) of the proviso should have been different.
5. The second proviso to Section 360 BNSS, is, however, a welcome change providing a locus standi to the victim an opportunity of being heard before the Court allows withdrawal from prosecution.
Author is Former Judge, High Court of Kerala. Views Are Personal.