Govt Can’t Withdraw Criminal Cases In Whimsical, Arbitrary Manner: Allahabad HC (FB) [Read Judgment]

A full bench of Allahabad High Court on Monday held that the state government cannot exercise power under Section 321 of Code of Criminal Procedure to withdraw criminal cases in a whimsical and arbitrary matter.

Section 321 of CrPC 1973, deals with the power of public prosecutor/assistant public prosecutor to withdraw case of which he is in-charge after obtaining written permission from the state government and that permission is required to be filed in court. The power of withdrawal can be invoked by the public prosecutor/assistant public prosecutor, in-charge of the case when same is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law.

The bench of Justice V.K. Shukla, Justice Manoj Misra and Justice Bharat Bhushan considered the following questions:

1. Whether the power of withdrawal can be exercised by the state government under Section 321 of Code of Criminal Procedure in a whimsical or arbitrary manner or it is required to be exercised for the considerations, just, valid and judicially tenable?


2. Whether decision taken by the state government for the withdrawal of cases, communicated to the public prosecutor, with direction to proceed ahead is open to judicial review or not in a writ jurisdiction under Article 226 of the Constitution of India?


3. Whether the state government should not be required to make scrutiny of various criminal cases pending in subordinate courts to find out if they deserve withdrawal in exercise of powers under Section 321 CrPC irrespective of fact that accused or anyone else has approached the government for this purpose or not?

After considering various judicial pronouncements, the Bench has answered the questions as follows:

1. The state government is not at all free to exercise its authority under Section 321 CrPC in a whimsical or arbitrary manner or for extraneous considerations, apart from just and valid reasons.

2. The decision taken by the state government for the withdrawal of the case, communicated to the public prosecutor, is open to judicial review under Article 226 of the Constitution of India on the same parameters as are prescribed for invoking the authority of judicial review.

3. The state government is free to act under the parameters provided for to make scrutiny of criminal cases pending in subordinate courts to find out as to whether those deserve withdrawal under Section 321 CrPC or not, as it is in the realm of the policy decision. A call on the said score has to be taken by the state government and same has to be based on the parameters required to be observed while moving an application for withdrawal of prosecution under Section 321 CrPC.