S. 321 CrPC | Prosecution Can't Be Withdrawn Merely On Govt Issuing An Order, Public Prosecutor Must Apply His Mind: Allahabad HC

It added that the public prosecutor must apply his mind by mentioning in his application that he is satisfied that it has been made in good faith and in the interest of public policy and justice.

A bench of Justice Arun Kumar Singh Deshwal made this observation while upholding an order of the Additional Chief Judicial Magistrate, Basti, dismissing the state's application under Section 321 CrPC for withdrawal of prosecution against the applicant in an extortion case.

Before the HC, the applicant argued that the court below failed to consider the fact that no case was made against him on the basis of material.

On the other hand, the counsel for the opposite party no. 2 has submitted that while filing the application under Section 321 CrPC, the State had not mentioned the reason for withdrawing the prosecution. Since there was no public interest involved in the case, the prosecution could not have been withdrawn in this case.

At the outset, the Court referred to the top court's judgment in Abdul Wahab K. vs. State of Kerala and other 2018, wherein it was held that it is the duty of the public prosecutor to mention the reason or public interest for withdrawal of prosecution against an accused, however, the same was not done in the instant case.

The Court also referred to the Top Court's ruling in the case of State of Kerala Vs. K. Ajith and others LL 2021 SC 328 wherein it was observed the permission of withdrawal may be given for the end of public justice.

In view of these ruling of the Supreme Court, the HC concluded that a prosecution cannot be withdrawn merely after the government has issued a Government Order and that the public prosecutor should also apply his mind by mentioning in his application filed under Section 321 CrPC that he is satisfied that the application has been made under good faith and in the interest of public policy and justice.

“Therefore, on the application by public prosecutor to withdraw the criminal case on the basis of government order without mentioning any reason or his opinion, court should not permit to withdraw the prosecution as the same is not permissible in the eyes of law,” the Court added.

Furthermore, the court also considered that the applicant, who is accused in the impugned proceeding, is a history-sheeter with 32 cases against him. However, no reason was assigned in the application filed by the public prosecutor under Section 321 CrPC for withdrawing the prosecution against the applicant.

The Court added that if the prosecution is permitted to withdraw the case against such type of person based on an unreasoned application, then it would definitely be against the public interest as well as against the guidelines laid down by the Apex Court.

Thus, the court dismissed the plea filed by the applicant.

Case title - Dilip Singh vs. State of U.P. and Another 2025 LiveLaw (AB) 32

Case Citation: 2025 LiveLaw (AB) 32

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