Accused Can Challenge Trial Court's Order Declining Consent To Withdraw Prosecution U/S 360 Of BNSS: Kerala High Court

The Kerala High Court recently held that an accused can challenge a trial court's 'arbitrary and unreasoned' order refusing to give consent to the state to withdraw prosecution against him under section 360 of BNSS/ section 321 of CrPC, even when the State has chosen not to challenge such orders. The order was passed by Justice Kauser Edapagath. Background The case arose out of two revision petitions, one involving multiple accused facing serious charges under the IPC, Arms Act, Explosive Substances and PDPP Act and the other revision petition involving the sole accused charged under sections 466 and 468 of the IPC for forgery. In both cases, the respective Public Prosecutors filed applications under section 360 BNSS/section 321 of the CrPC seeking to withdraw the prosecution. These applications were denied by the trial courts. The accused then challenged these refusals before the High Court of Kerala. Counsel appearing for the revision petitioners in Crl. RP 268 of 2017 argued that the petition is maintainable since the accused was the real affected party of the order dismissing the application for withdrawal from prosecution, even though the State has not challenged the said order. They relied on the Supreme Court decision in Abdul Wahab v State of Kerala, wherein it was held that even a third party or stranger can challenge an order passed under section 360 of BNSS/section 321 of CrPC in revision before the High Court in appropriate cases. Counsel appearing for the revision petitioners in submitted that the revisional power vested with the High Court under section 397 read with section 401 of CrPC is supervisory in nature to examine the legality, correctness, or propriety if any finding, sentence or order of a subordinate court, and it can exercise the said power suo motu, even without a formal petition by any of the parties to the proceedings. The senior Public Prosecutor submitted that the right to apply for withdrawal from prosecution under section 360 of BNSS is with the Prosecutor only, and the accused has no say in it. By relying on Anjali Davadas v State of Kerala, the counsel argued that if the State has not chosen to file a revision challenging the order of dismissal of the petition to withdraw from prosecution, the accused does not have the right to challenge the order. Findings The court observed that under the scheme of BNSS/CrPC, prosecution of an offender is primarily the responsibility of the executive. The court laid down the dual requirement under section 360 of BNSS, which states that the application must be made by the Public Prosecutor or Assistant Public Prosecutor, and the consent of the court must be obtained. The court observed that the object of section 360 of BNSS is to reserve power to the executive government under the supervision of the judiciary. The Court affirmed that judicial discretion must be exercised based on all materials placed by the Prosecutor. Any non-application of mind or failure in judicial scrutiny makes the trial court's order liable for revision. The Court further added: “ If the order refusing to grant consent for withdrawal from prosecution under Section 360 of BNSS is vitiated by non-application of mind.. The accused has every right to bring it to the notice of the High Court by way of a revision.” The Court held that the accused could file a revision in appropriate cases, especially where the order was arbitrary or lacked reasoning. Justice Edappagath found that in both cases, the trial courts failed to provide a reasoned order. They neither addressed the grounds raised by the Prosecutors nor engaged with the materials submitted. Thus, the Court remarked that “ A reading of both impugned orders would show that they are not speaking orders.” “Even though several grounds were specifically canvassed by the Prosecutor in his applications for withdrawal in both cases, none of them were considered or addressed by either of the trial courts,” it added. This, the High Court held, amounted to a miscarriage of justice. Thus, the trial court's orders were set aside for being unreasonable and lacking judicial consideration, and the trial court was directed to reconsider the applications afresh.Case No: Crl.Rev.Pet Nos. 23 & 268 of 2017Case Title: George Alexander @ Prince v. State of KeralaCitation: 2025 LiveLaw (Ker) 394Click Here To Read/Download Order

Accused Can Challenge Trial Court's Order Declining Consent To Withdraw Prosecution U/S 360 Of BNSS: Kerala High Court

Anamika MJ

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