Withdrawal of Prosecution by the Public Prosecutor Section 360

Section 360, BNSS 2023

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; and, 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 Sanhita 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; 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; and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government.

And, newly: the Court shall, before according consent, give an opportunity of being heard to the victim in the case.

📖 Rajender Kumar Jain v. State, (1980) 3 SCC 435

Facts: Applications for withdrawal from prosecution were made in politically sensitive cases, and it was contended that the Public Prosecutor had acted on the instructions of the Government, and that in any event the only permissible ground for withdrawal was the insufficiency of the evidence.

Held: The Supreme Court held that the grounds on which a Public Prosecutor may seek withdrawal are not confined to the insufficiency of the evidence. The function of the Prosecutor relates to a public purpose, and he may properly seek withdrawal on broader grounds of public policy — the interests of public order, public peace, public justice, the promotion of a larger public interest, or because the prosecution is not advancing the administration of justice. The Court held that the Government is not precluded from suggesting to the Prosecutor that a case be withdrawn, since it may possess information about the wider public interest that the Prosecutor does not; but the responsibility for the decision is the Prosecutor’s. He must be satisfied on his own view of the material that withdrawal is justified, must not act merely because he has been told to, and must place the grounds before the Court. The Court’s function is supervisory: it must see that the Prosecutor has applied his mind and is acting in good faith, and must satisfy itself that the withdrawal will not thwart the process of law or cause a manifest injustice.

Ratio: Withdrawal is not confined to insufficiency of evidence and may rest on broader grounds of public policy. The Government may suggest, but the decision and the responsibility are the Prosecutor’s, and the Court exercises a supervisory function.

📖 Abdul Karim v. State of Karnataka, (2000) 8 SCC 710

Facts: A withdrawal from prosecution was sought and permitted in circumstances in which the decision appeared to have originated with the executive rather than with the Public Prosecutor, and the Court had accorded consent without examining whether the Prosecutor had formed his own view.

Held: The Supreme Court held that the Public Prosecutor is not a mouthpiece of the executive. He holds a public office and the power under the section is entrusted to him personally; he must therefore examine the material himself and be independently satisfied that withdrawal is in the interest of the administration of justice. The Court held equally that the Court’s consent is not a formality or a mechanical endorsement: the Court must apply its judicial mind to whether the Prosecutor exercised his own discretion, whether the application is bona fide, and whether permitting the withdrawal would advance or defeat the ends of justice. It is not required to conduct a trial of the merits or to demand proof of the grounds, but it must be satisfied on those matters and must record its reasons, since the order results in a discharge or an acquittal. The Court set aside the consent given below.

Ratio: The Public Prosecutor is not a mouthpiece of the executive and must be independently satisfied. The Court must apply its judicial mind to whether he exercised his own discretion and whether the withdrawal advances the ends of justice, and must record reasons.

⚠ The victim’s right to be heard is new

Under the Code of Criminal Procedure a withdrawal was a matter between the Public Prosecutor and the Court. The victim had no statutory right to be heard, and frequently learnt of the withdrawal only after it had been allowed.

Section 360 now requires the Court, before according its consent, to give an opportunity of being heard to the victim in the case.

It is of a piece with the other provisions in the Sanhita giving the victim a standing in the proceeding: the free copy of the FIR under section 173(2), the progress update within ninety days under section 193(3), the supply of documents under section 230, the right to engage an advocate to assist the prosecution under the proviso to section 18(8), and participation in a plea-bargaining disposition under section 291.

The practical effect is that a withdrawal can no longer be arranged quietly. The Court must issue notice, hear what the victim says, and take it into account in deciding whether to consent.

The position stated shortly

1. Only the Public Prosecutor or Assistant Public Prosecutor in charge of the case may move for withdrawal. Neither the complainant, nor the accused, nor the Government may move the Court, and the Government cannot withdraw a case by an executive order.

2. It may be sought at any time before the judgment is pronounced, generally or in respect of any one or more of the offences for which the accused is tried.

3. The Prosecutor must apply his own mind to the material. He is not a mouthpiece of the executive and not a post office for an instruction: Abdul Karim.

4. The grounds are not confined to insufficiency of evidence. They may include broader considerations of public policy, public order and public peace, and the interest of the administration of justice: Rajender Kumar Jain.

5. The Government may suggest a withdrawal, since it may hold information the Prosecutor does not; but the decision and the responsibility are his.

6. The Court’s consent is a judicial and supervisory function, not a formality. It must satisfy itself that the Prosecutor applied his mind, that the application is bona fide, and that the withdrawal will advance rather than thwart the ends of justice.

7. The Court does not try the case or require the Prosecutor to prove his grounds, but it must record its reasons.

8. The victim must be given an opportunity of being heard before the Court accords consent — which is new to the Sanhita.

9. The effect depends on the stage: withdrawal before a charge produces a discharge; after a charge, or where no charge is required, an acquittal.

10. Where the offence falls within the Central Government proviso — a Union subject, an investigation by the Delhi Special Police Establishment, Central Government property, or an offence by a Central Government servant on duty — and the Prosecutor was not appointed by the Centre, he needs its permission, which the Court shall direct him to produce.