'Must Subserve Administration Of Justice': Supreme Court Formulates Principles On Withdrawal Of Prosecution Under Section 321 CrPC

The Supreme Court, in its judgment dismissing the plea seeking withdrawal of prosecution in assembly ruckus case, also formulated the principles on the withdrawal of a prosecution under Section 321 of the Code of Criminal Procedure.

The bench comprising Justices DY Chandrachud and MR Shah observed that while deciding a plea to withdraw prosecution, the court must be satisfied that the grant of consent sub-serves the administration of justice; and that the permission has not been sought with an ulterior purpose.

The court can also scrutinize the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated, the bench added. The following principles were formulated:

1. Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;
2. The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;
3. The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;
4.  While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons;
5. In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that: (a) The function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes; (b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law; (c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given; (d) The grant of consent sub-serves the administration of justice; and (e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;
6. While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the  nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and
7. In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well-settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent.

Section 321  CrPC

Section 321 of CrPC deals with withdrawal from prosecution. 

Under this provision, 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.

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.

Background

In this case, on 13 March 2015, when the then Finance Minister was presenting the budget for the financial year 2015-2016 in the Kerala Legislative Assembly, some Members of the Legislative Assembly  disrupted the presentation of the budget, climbed over to the Speaker's dais and damaged furniture and articles including the Speaker's chair, computer, mike, emergency lamp and electronic panel, causing a loss of Rs. 2,20,093/-. The incident was reported to the Museum Police Station by the Legislative Secretary and crime  was registered under Sections 447 and 427 read with Section 34 of the Indian Penal Code 18605 and Section 3(1) of the Prevention of Damage to Public Property Act 1984. On the completion of the investigation, the final report under Section 173 of the CrPC was filed and cognizance was taken by the court of the said offences. On 21 July 2018, an application was filed by the Assistant Public Prosecutor under Section 321 of the CrPC seeking sanction to withdraw the case against all the accused. This application was dismissed by the Trial Court and the High Court dismissed the revision petition filed by the State.

State's Contention on Section 321 CrPC

Before the Apex Court, it was contended that there is a clear difference in the approach of the majority and the minority judgments in Sheonandan Paswan vs State of Bihar on Section 321 CrPC. "The judgments of the majority require the court to determine whether the Public Prosecutor has improperly exercised their powers, interfered with the normal course of justice or exercised powers for illegitimate purposes. The minority cuts down the scope of Section 321 by imposing conditions which are not accepted by the majority opinions. While the majority focusses on the function of the Public Prosecutor, the minority dwelt on the purity of the administration of justice", it was contended.

Addressing this contention, the above principles were formulated by the Court after referring to various earlier judgments on the scope of Section 321 CrPC. Applying these principles to this case, the bench observed that  the CJM was justified in declining consent for the withdrawal of the prosecution under Section 321. The court observed thus:

"The acts complained of which are alleged to constitute offences punishable under Sections 425, 427 and 447 of the IPC and under Section 3(1) of the Prevention of Damage of Public Property Act 1984 are stated to have been committed in the present case on the floor of the State Legislature. Committing acts of destruction of public property cannot be equated with either the freedom of speech in the legislature or with forms of protest legitimately available to the members of the opposition. To allow the prosecution to be withdrawn in the face of these allegations, in respect of which upon investigation a final report has been submitted under Section 173 of the CrPC and cognizance has been taken, would amount to an interference with the normal course of justice for illegitimate reasons. Such an action is clearly extraneous to the vindication of the law to which all organs of the executive are bound. Hence,  the mere finding of the High Court that there is no absence of good faith would not result in allowing the application as a necessary consequence, by ignoring the cause of public justice and the need to observe probity in public life. The members of the State Legislature have in their character as elected representatives a public trust impressed upon the discharge of their duties. Allowing the prosecution to be withdrawn would only result in a singular result, which is that the elected representatives are exempt from the mandate of criminal law. This cannot be countenanced as being in aid of the broad ends of public justice."

Good faith is one and not the only consideration. 

The bench also explained the judgments in State of Bihar vs Ram Naresh Pandey and Sheonandan Paswan (supra) and observed:

58 The test which has been laid down in the decisions of this Court commencing with Ram Naresh Pandey (supra) in 1957, spanning decisions over the last 65 years is consistent. The true function of the court when an application under Section 321 is filed is to ensure that the executive function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. The court will grant its consent if it is satisfied that it sub-serves the administration of justice and the purpose of seeking it is not extraneous to the vindication of the law. It is the broad ends of public justice that must guide the decision. The public prosecutor is duty bound to act independently and ensure PART C 55 that they have applied their minds to the essential purpose which governs the exercise of the powers. Whether the public prosecutor has acted in good faith is not in itself dispositive of the issue as to whether consent should be given. This is clear from the judgment in Sheonandan Paswan (supra). In paragraph 73 of the judgment, Justice V Khalid has specifically observed that the court must scrutinize "whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law". Good faith is one and not the only consideration. The court must also scrutinize whether an application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given.

Case  : The State Of Kerala vs K Ajith [SLP(Crl) No. 4009/2021]
Coram : Justices DY Chandrachud and MR Shah
Citation : LL 2021 SC 328