A Case Dismissed

While maintaining the essential structure, Section 360 adds a vital victim-centric safeguard, stipulating that withdrawal cannot be permitted without first granting the victim the right to be heard.  

“Withdrawal from prosecution” as against “withdrawal of prosecution” refers to the power of State/Public Prosecutor to seek withdrawal from one or more offences against one or more accused, without necessarily bringing the entire case to an end. This article cuts through 150 years of criminal procedure from the Criminal Procedure Code, 1872 to Section 360, Nagarik Suraksha Sanhita, 2023 (BNSS) to show how a seemingly simple power became a battleground of executive influence, prosecutorial discretion, and judicial vigilance. Charting key rulings that transformed the doctrine, it argues that the BNSS‘s victim-hearing mandate marks a decisive shift, injecting a long-missing third voice into a process once dominated by the State and the courts.

The power to withdraw from prosecution has been a persistent feature of the Indian criminal jurisprudence, tracing its lineage to Section 61, Criminal Procedure Code, 1872 (1872 Code) which ran as follows:

61. Effect of withdrawal of charge by public prosecutor.— The Public Prosecutor may, with the consent of the Court, withdraw any charge against any person in any case of which he is in charge; and upon such withdrawal, if it is made whilst the case is under inquiry, the accused person shall be discharged. If it is made when he is under trial, the accused person shall be acquitted.

On the re-enactment of the 1872 Code as the Criminal Procedure Code, 1882 (1882 Code), the power of withdrawal from prosecution appeared as Section 494:

494. Effect of withdrawal from prosecution.—Any Public Prosecutor appointed by the Governor-General in Council or Local Government may, with the consent of the Courts, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person; and, upon such withdrawal:

(a) if it is made before a charge has been framed, the accused shall be discharged;

(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted.

(emphasis added)

While the 1872 Code granted the Public Prosecutor a broad, general power to withdraw any charge with the Court’s consent, the subsequent 1882 Code revised this power by introducing specific temporal and procedural restrictions. Specifically, the 1882 Code restricted the definition of Public Prosecutor by only empowering the Public Prosecutors appointed by the highest levels of Government. The 1882 Code limited withdrawal to cases before the verdict in a jury trial, or before the judgment was pronounced in all other cases. Further, the 1882 Code replaced the imprecise stages of “inquiry” and “trial” with the definitive procedural event of “charge framing” to determine whether the accused would be discharged (before charge) or acquitted (after charge).

The provision remained as it is, upon re-enactment, in Section 494, Criminal Procedure Code, 1898 (1898 Code). The next modification in the provision was made in 1923¹ which inserted the phrase “either generally or in respect of any one or more of the offences for which he is tried” and omitted the words “appointed by the Governor-General-in-council or local Government” in Section 494 of the 1898 Code. The amendment was made to clarify the ambit of the power of Public Prosecutor and to remove the administrative restriction that limited the power to only the Public Prosecutors appointed by the Governor-General or local Government.

Upon the Code’s re-enactment in 1973 (1973 Code), the provision became Section 321, which added a proviso mandating prior Central Government consent for withdrawal in cases involving the Union’s executive power, the Central Bureau of Investigation (CBI), Central Government property, or a Central Government servant. Notably, Section 321 of the 1973 Code replaced the expression “Any prosecutor” with the Public Prosecutor and the Assistant Public Prosecutor. It may be noted that the courts have allowed withdrawal from prosecution in applications filed by Special Public Prosecutors, as well.²

Finally, in the transition to the BNSS, this provision has been re-enacted as Section 360. While maintaining the essential structure, Section 360 adds a vital victim-centric safeguard, stipulating that withdrawal cannot be permitted without first granting the victim the right to be heard.

The legislative shifts around the provision of withdrawal, from the 1872 Code to BNSS, have spanned nearly one and a half centuries of Indian criminal law. Yet, notably, the provisions have remained profoundly silent on two crucial aspects:

1. the degree of autonomy of Public Prosecutor from executive control; and

2. the specific grounds of withdrawal.

This statutory vacuum necessitated significant judicial intervention over the century. As such, courts have laboured meticulously to ensure that prosecutorial discretion does not degenerate into executive impunity.

In Bawa Faqir Singh v. King-Emperor³, the Privy Council pointed out that Section 494 of the 1898 Code (now Section 360 BNSS) “gives a general executive discretion to withdraw from prosecution subject to the consent of the Court, which may be determined on many possible grounds…”. The decision of Bawa Faqir Singh case⁴ was noted with approval by a three-Judge Bench of the Supreme Court in State of Bihar v. Ram Naresh Pandey⁵ wherein the Court held that though the section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must nonetheless satisfy itself that the execution function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. In M.N. Sankarayarayanan Nair v. P.V. Balakrishnan⁶, a two-Judge Bench affirmed that the power of withdrawal from prosecution is a general executive power that can be exercised in furtherance of the objective of administration of justice. In State of Orissa v. Chandrika Mohapatra⁷, a two-Judge Bench of the Supreme Court affirmed the ground of administration of justice for withdrawal from prosecution, while clarifying that no hard and fast ground could be laid down. As such, till 1977, the power of Public Prosecutor was deemed to be a general executive power and the accepted ground for withdrawal from prosecution was that of administration of justice.

In 1977, in a complete turn of events, the Supreme Court, for the first time, in Balwant Singh v. State of Bihar⁸, while maintaining administration of justice as the paramount ground, made the Public Prosecutor autonomous of the executive insofar as withdrawal from prosecution was concerned. Thereafter, in 1980, in Rajender Kumar Jain v. State⁹, the Supreme Court adopted a middle ground and held that the Public Prosecutor may act on the advice of the Government in applying for withdrawal of the prosecution where large and sensitive issues of public policy were involved.

Finally, in a Constitution Bench decision of Sheonandan Paswan case¹⁰, the Court upheld the cases Ram Naresh Pandey¹¹ and Rajender Kumar Jain¹² and held that a Public Prosecutor can act on instructions from the Government/Executive, provided the Public Prosecutor applies their independent mind and is satisfied that the withdrawal serves public justice. In terms of the grounds that can be taken, the Court held that the withdrawal must be in furtherance of the cause of public justice. It must be in good faith and not to thwart the process of law. Importantly, the Court also gave the following two qualifications:

1. Withdrawal after charge — Withdrawal is permissible even after a charge is framed, including on the ground of insufficient evidence, provided the Public Prosecutor genuinely believes the prosecution may not succeed and the Court is satisfied with their bona fides.

2. Withdrawal before charge — Withdrawal on grounds like “public peace”, “public policy”, or to secure “harmony” (i.e. non-judicial grounds) is permissible, as it furthers public justice.

Thus, the power of withdrawal from prosecution is neither purely executive nor purely judicial, but an executive function subject to judicial supervision. This established framework is the very foundation inherited by the BNSS. The most profound change lies in Section 360 BNSS, which adds a victim-centric safeguard, stipulating that withdrawal cannot be permitted without first granting the victim the right to be heard. This procedural mandate fundamentally alters the landscape, adding a third critical check, i.e. the voice of the victim, to the traditional binary of the Public Prosecutor’s discretion and the court’s consent, ensuring a move toward more balanced and transparent justice delivery.