S.321 CrPC | Public Prosecutor Not State's Postman, Withdrawal Of Prosecution Can't Be Done On Mere Asking Of Executive: Rajasthan High Court

In a recent decision, Rajasthan High Court has made a string of remarks about when an application to withdraw prosecution under Section 321 CrPC can be made. The court has also delved deep into the duty of the public prosecutor to prevent abuse of the process of law in such instances.

The single-judge bench of Justice Farjand Ali also observed that Section 321 CrPC provides an overwhelming pertinence to the discretion of a Public Prosecutor and his role, as an officer of the court, in withdrawal from prosecution.

“…It is expected rather incumbent upon him to frame a plausible reasoning being a law officer having legal knowledge as to what could be done and what not. Here, the Public Prosecutor shall not act as a mere postman or a State Government employee following the orders as directed to him by his executive/appointing authority…” the bench sitting at Jodhpur noted since the inalienable duty of the public prosecutor is to assist the court and ensure free trial.

To make the above inferences, the court extensively relied on Justice Krishna Iyer's views in Subhash Chander v. State (Chandigarh Administration) & Ors. (1980).

The court also did not take lightly the Additional Public Prosecutor's lapse in making the application under Section 311 of CrPC instead of Section 321. The court, after admonishing the prosecutor, opined that the incorrect provision of law mentioned in the application is 'like a nail in the coffin' which indicates that the prosecutor has 'acted in a highly callous manner' , without due regard to the legal provisions.

“…The Public Prosecutor is a functionary and he has to act like one rather than acting like a party stooge or a mere liveried footman for the executive. He has the role of a chef to play in the process of withdrawal rather than that of a scullion…”, the judge made a strong observation by relying upon Subhash Chander.

After placing reliance on Sheonandan Paswan v. State of Bihar & Others (1983), Justice Ali listed the four grounds for seeking withdrawal of prosecution: 1. Bleak possibility of successful prosecution based on evidence available; 2. Incrimination of individuals born out of political or personal vendetta; 3. Inexpediency of the prosecution for reasons of State and public policy; 4. Impact of the continuation of prosecution detrimental to the public interest.

Though the application made by the prosecutor for withdrawing prosecution mentioned adverse impact on 'public interest', no plausible explanation has been given as to how such 'public interest' gets affected, the court noted.

“…In the case at hand, the withdrawal was not in the interest of administration of justice and neither was the collected evidence lacking to the extent that would not be enough to sustain charges nor was there any such perilous situation concerning law and order that would make withdrawal from prosecution necessary”, Justice Ali added that a prima facie case was already made out according to the evidence available on record.

If the aforementioned criteria are not adhered to by the prosecutor and the courts while allowing withdrawal, it would result in undesired consequences for the victims and the public at large, added the bench sitting at Jodhpur.

The implications include i) denial of victims' right to see the accused brought to justice, ii) loss of public faith in the legal system, iii) encouraging a culture of impunity that inspires further commission of crimes, iv) weakening the deterrent effect of law, and v) apprehensions about executive power meddling in the process of law, the court opined.

“…In summation, the synergy of victims' rights and prosecution withdrawal stands as an embodiment of evolution of a system of justice. It signifies the transformation from rigid legal constructs to dynamic entities that respond to the nuances of human experience”, the court held. This is why victims have the right to review decisions whenever prosecution is withdrawn, the court added.

Background

Advocate Firoz Khan, counsel for the complainant in the revision petition, was challenging an order passed by Additional Sessions Judge, Chittorgarh where prosecution against respondents was withdrawn. Arraigned for offences under Sections 147, 148, 149, 435, 436, 454 & 379 IPC, the respondents were allegedly involved in ransacking and burning down the house of the complainant/petitioner in 2007. Based on a resolution from the Home Department, an application under S.321 Cr.PC was filed by the Additional Public Prosecutor which was allowed by the Sessions Judge.

Other Observations

Under S.321, the court has the power to determine if the withdrawal from prosecution, as sought by the prosecutor, is appropriate or not and whether it would result in a miscarriage of justice or not, the court further held. This stage of 'judicial check and balance' includes analysing the reasons cited by the prosecutor, scrutinising the evidence presented, and ensuring that undue influence or coercion is not the motivating factor behind the withdrawal, the single judge bench clarified.

“…The Court should strike a balance between respecting bonafide decisions of Prosecutors to withdraw cases which lack merit and preventing the arms of the executive to encroach upon such decisions… it is trite to say that every judge before whom such circumstance is prevailing, must make his judicial consciousness adhere to certain considerations while dealing with provision under Section 321 Cr.P.C. which are namely, interest of justice, public policy, fair trial, valid grounds, victims' rights and miscarriage of justice.”, it was observed by the High Court.

The role of the court is not limited to acting as a mere stamp while granting permission for withdrawal, Justice Ali observed after referring to State of Bihar v. Ram Naresh Pandey (1957).

“…When those who are part of the executive tend to act in self-interest in issuing directions for withdrawal of criminal cases, it becomes important for the judiciary to be mindful of its role in making sure that such cases are not readily withdrawn on mere asking”, the single judge bench concluded.

Accordingly, the high court remanded the matter back to the trial court with a direction to reconsider the S.321 application.

Case Title: Mubarak @ Salman v. State of Rajasthan Through Public Prosecutor & Ors.

Case No: S.B. Criminal Revision Petition No. 152/2016

Citation: 2024 LiveLaw (Raj) 26

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