Conditions For Withdrawal From Prosecution - Legal And Procedural Aspects
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
CONDITIONS FOR WITHDRAWAL FROM PROSECUTION:
LEGAL AND PROCEDURAL ASPECTS Vishal Mittal & Yashaswi Agrima, BA LLB, National Law University, Odisha
ABSTRACT
This paper examines Section 360 of the “Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023”, which replaces Section 321 of CrPC, 1973, focusing on provision that allows PP also known as “public Prosecutor” to withdraw from prosecution with court consent. It highlights significant changes, such as mandatory victim hearings before withdrawals and the requirement for Central Government permission. The study assesses the discretionary powers of Public Prosecutors and the courts' role in ensuring justice, referencing landmark cases to establish guiding principles. It also addresses challenges like political influence and the need for transparency, concluding with recommendations for clearer withdrawal criteria, enhanced victim participation, and comprehensive guidelines on "public interest.
" Lastly, the paper emphasizes the importance of ongoing legislative review and specialized training to optimize the application of Section 360 and advance criminal justice reform in India.
INTRODUCTION
The “Code of Criminal Procedure” commonly (CrPC) enacted in 1973 was used to be the major legislation for the procedure of criminal law in India. As of June 2024, the act contained 484 sections with 56 forms and two schedules. However, with the recent introduction of the “Bharatiya Nagarik Suraksha Sanhita, 2023” (hereinafter referred to as "act” or “BNSS” ) that had replaced CrPC, we're witnessing significant changes in our legal landscape. This new legislation aims to enhance justice and security for all citizens. The BNSS now contains 531 sections along with 58 total forms. This new legislation brings about significant changes to trial procedures, including the important aspect of allowing withdrawals from prosecution.
In this paper, the author aims to explain Section 360 of the newly enacted BNSS, which allows the “Public Prosecutor (PP)” or “Assistant Public Prosecutor (APP)” to withdraw charges against someone, either entirely or just for specific offenses. It's important to highlight that the section refers to "withdrawal from prosecution" instead of "withdrawal of prosecution. " This means that if charges are brought against someone for one or more offenses, the PP or Ass. PP can request to withdraw those charges before the judgment is made. If the term "withdrawal of prosecution" had been used, it would imply that the entire case is being closed. Who is a Public Prosecutor? Criminology states that an offense committed by an individual is not directed towards any specific person but rather the entire community (state).
William Blackstone, renowned English jurist from 18th century, nicely defines crime in this way “an act committed or omitted in violation of public law either forbidding or commanding it. ”1 His definition captures the essence of how crime involves either doing something the law prohibits or failing to do something it requires. As a result, in criminal cases the State is always involved. Cases that are criminal in nature are prosecuted by Public Prosecutors. The Union Govt. and the states government of India have the power to appoint prosecutors on behalf of them in High courts, District and Session courts and Court of Magistrate for conducting prosecutions and any other criminal proceedings. The government can also appoint a special prosecutor to handle cases in special courts, especially when those cases are of special nature.
Moreover, the SC in the case 1 ‘Avalon Project - Blackstone’s Commentaries on the Laws of England - Book the Fourth - Chapter the First : Of the Nature of Crimes, And Their Punishment’ accessed 23 December 2024. of “Mukul Dalal v. Union of India (1988)2” stated state can appoint prosecutors if there is a causation related to the some public interest at large. Section 18 and 19 of the BNSS defines who is PP and Assistant PP respectively. Below is a table providing a preliminary or superficial analysis of the key sections pertaining to these arenas. Section Sub Section Provision (1) “Appointment of Public Prosecutor for High Court” - Both The Union or State Government, after HC consultation, appoints a PP and may appoint Additional PP to conduct cases in the HC.
The proviso added that for NCT of Delhi, the Central Government appoints the PP or Additional PP after consultation with HC of Delhi. (2) “Appointment of Public Prosecutor for District/Local Areas” - “Central Government” may appoint one or more PP for conducting cases in any district or local area. (3) State Government appoints a PP and may appoint Additional PP for employing them in each district. The same prosecutor can be appointed for multiple districts. (4) Panel - The DM, with the consultation of the Sessions Judge, prepares panel for suitable candidates for the appointment of PP or Additional PP for the district. (5) Appointment Restriction - State Government can only appoint a PP or Additional PP if the candidate's name is in the DM’s prepared panel.
(1) “Assistant Public Prosecutor Appointment by State” : The State Government appoints one or more Assistant PP to conduct prosecutions in the Courts of Magistrates. (2) The Central Government may appoint 1 or more Assistant PP in the Courts of Magistrates. They will be appointed for conducting any case or class of cases (3) Where no Assistant PP is available for a particular case, the DM may appoint another person to act as Assistant PP, with a 14-day notice to the State Government. Restrictions - A officer of police cannot be appointed if they participated in the investigation or are below the rank of Inspector. Most of the sections are retained from CrPC with some minor amendments including that there is a new proviso added to Section 18(1) for the special case of NCT.
Additionally, the fourteen days’ notice to the government of state for the appointment of Assistant Public Prosecutor is newly added. Proviso is reframed but the meaning is same. The new Sanhita doesn’t mention the duties of a prosecutor. However, there are some explicit principles stated by court which are now well settled practice. In case of “Srilekha Vidyarthi v. state of U. P”3, the honourable apex court highlighted role and importance of office of Public Prosecutor. In this case, the Uttar Pradesh terminated the appointments of all Government Counsel through a circular, prompting the appellants to challenge the decision. They argued that their positions as Government Counsel were not mere private contracts but public offices with constitutional protections. The State countered by claiming the appointments were purely contractual and could be ended at will.
The SC ruled in favour of the appellants, holding that these appointments had a public element, attracting (right to equality under article 14 of the Constitution4, making State's action subject to judicial review. The court emphasized fairness and reasonableness in state actions, even in contractual matters. The role of a prosecutor in criminal trial is not only to secure sentence or conviction. It also includes presenting all evidence, whether for or against the accused, and allow the court to determine guilt. It is not their duty to seek conviction by any means. Section 360 BNSS: Overview Section 360 of BNSS titled as “withdrawal from prosecution” allows a “public prosecutor” or
3 Srilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212
4 The Constitution of India, 1950
“assistant prosecutor” to withdraw from case with the court's consent before judgment is passed. If withdrawal occurs before frame of charges, the accused is discharged from those charges; if it happens after charges are framed, the accused is acquitted. However, there are specific circumstances given in the act where the prosecutor must obtain permission from the Central Government to withdraw. The court will only grant consent if the prosecutor provides proof of this permission. Additionally, majorly added that court have to give the victim in the case an opportunity to be heard before allowing the withdrawal.
The superficial reading of the section states - “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 under any Central Act; 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 from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution: Provided Further that no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case.
”5 Locus Standi of the Victim This section was earlier provided in S. 321 of CrPC. Most of the text has been borrowed from there only. However, there are some changes. One major change in the current section is that it adds a proviso that gives the victim a chance to be heard before the withdrawal. Without that, no Court shall allow the withdrawal from prosecution. The act uses the word “shall” which makes the proviso mandatory before any such withdrawal. This new proviso is based on the maxim “Audi alteram partem” which translates to “let the other party be heard as well”. The court stated in case of “Saramma Peter v. State of Kerala”6 that “The complaint does not have any say in making the decision either to withdraw or not to withdraw from the prosecution”. However, the new Sanhita now give the chance to the victim to place their contention before the withdrawal of the case.
The issue of how the complainant has the “locus standi” to oppose a withdrawal application remains currently open for judicial interpretation. Another change in the section is that "by the Delhi Special Police Establishment under the Delhi Special Establishment Act 1946 (25 of 1946)" is replaced by "under any Central Act," thereby providing clarity regarding the relevant statutory framework. Now, any investigation under any central act is covered in this section’s first proviso. What can we deduce from the section? The following thing can be deduced while reading the section – Prosecutor’s discretion: an analysis The PP or assistant PP who have the charge of the case can withdraw from prosecution of someone either wholly/generally or in the respect to particular offence or offences. However, permission has to be granted by court.
The request of such withdrawal can be made at any time before the judgement. It’s very important to note that prosecutor has no right to such requests
5 The Bharatiya Nagarik Suraksha Sanita, 2023, S. 360
6 Saramma Peter V. State of Kerala, 1991 Cri LJ 3211 (Ker).
when the case is at appellate stage. The appellate stage is when a case is reviewed by a higher court after a lower court has made a decision. In the Indian judicial system, the appellate system allows people to appeal to a higher court if they believe a lower court's decision was unjust or not correct. This was highlighted in the case “Public Prosecutor v. Mandagni Varjuno (1976)7”. The PP here has requested permission to withdraw the case against accused 1 to 3 and 18 in Sessions Case No. 17 of 1973, who were convicted and sentenced on various charges. The case is currently under appeal. However, according to legal provisions, withdrawal of a case can only occur before judgment is pronounced, not after a conviction. Since the appeal is ongoing and judgments have been made, the request for withdrawal is not permitted.
Consequently, the petition is dismissed, and the appeal will proceed based on its merits. Apart from that, the PP must obtain permission from Central Government to withdraw specific cases listed in the act, including when the offense relates to laws under the executive power of the central, has been investigated under Central Act, involves “misappropriation or damage to Central Government property”, or was “committed by a Central Government employee acting in their official capacity”. If prosecutor has not appointed by union govt, they can’t move the court to withdraw without this permission, and the court will require proof of such permission before granting consent. For, example if a person is accused under the “The Unlawful Activities (Prevention) Act (UAPA),1967” or “Narcotic Drugs and Psychotropic Substances Act, 1985”, just PP’s discretion will not be enough.
There should be central govt. permission for it. In case “Ayyub v. State of U. P. , (2002)8”, the Court addressed the application for consent under Section 321 CrPC (now Section 360 BNSS) to withdraw prosecution under TADA Act, a central government act. The Central Government, after a review committee's recommendation, sought to withdraw charges under TADA, deeming its stringent provisions unnecessary. The Court granted consent for withdrawal, finding the government's decision legitimate and made in good faith, despite the Designated Judge's initial rejection. The appellants were acquitted of TADA charges but were convicted of other offenses, including murder and damage to property, based on eyewitness testimony, test identification, and circumstantial evidence. The convictions and sentences for these offenses were upheld, while the acquittal for TADA-related charges was affirmed.
7 Public Prosecutor v. Mandagni Varjuno, 1976 Cri LJ 46,47 (AP)
8 Ayyub v. State of U.P., (2002) 3 SCC 510
Another thing is that, it’s important to know that that the role of the PP is to decide on whether any particular case should be withdrawn or not. This one of the decisions that he cannot bargain or swap; it is a responsibility that he cannot avoid performing. The choice has to be made according to the legal rules that are prescribed in the Sanhita. In coming to this decision, the Prosecutor should be cognisant of whether withdrawing the case, will serve the best interest of public justice or not. ‘Public justice’ has to do with the fact that justice is public interest in the right cause, safety, fairness, and accountability. It can be sometimes seen that requirements of public justice override the law of the case. This was stated in the well-established case of “Balwant Singh v. State of Bihar, (1977)”.
9 Section 321 f CrPC allows courts to also provide for prosecution withdrawal so as to enhance order and security in the society. This means that where continuing with the case may cause trouble or affects the community then the Prosecutor may withdraw. Such decision cannot come as a result of the prosecution failure or inability to convict the culprit as stated in “Durai Murugan v. State (2001)”. 10 Court’s Consent The section clearly mentions that for “withdrawal from prosecution”, the court’s consent is must. If PP asked the Court to allow any termination of criminal prosecution, and the Court agreed, quashing the case. This action does not violate any law regarding the powers under Article 142 of Indian Constitution.
Article 142 allows for withdrawal of prosecution based on Section 360 of the Sanhita, which requires Court to consider that whether public justice would be served by the ending or continuing the case. The SC has stated that the PP must follow government instructions, which do not constitute external influence. 11 The court, when exercising discretion, has a responsibility to ensure that given permission is not demanded for reasons unrelated to pursuit of justice. There isn’t a strict rule or a set list of scenarios in which the court’s consent should be given or denied. Each decision have to be based on each specific facts & circumstances of a case, considering what is needed to uphold justice. As long as the court believes that the PP is not being unduly influenced, they may be allowed to withdraw. In a landmark case “V. L. S. Finance Ltd. v. S. P.
Gupta, (2016)12”, the Supreme Court addressed
9 Balwant Singh v. State of Bihar, (1977) 4 SCC 448
10 Durai Murugan v. State, 2001 Cri LJ 215 (Mad)
11 Manupatra, ‘Withdrawal from Prosecution (Section 321 of the CRPC)’
accessed 10 September 2024.
12 V.L.S. Finance Ltd. v. S.P. Gupta, (2016) 3 SCC 736
the application of Section 321 (CrPC), which allows a PP to withdraw prosecution with consent of court. Issue involved the withdrawal of prosecution initiated against certain accused persons based on the recommendations of a screening committee and approval from the Lt. Governor. The court emphasized that the “Public Prosecutor” must act independently, applying their mind to the case without merely following government directives. The PP’s withdraw decision must serve the public interest, and the court must exercise its judicial discretion carefully, ensuring that the requested withdrawal does not interfere with course of justice. The accused do not have the right to contest such an application, and the process should prioritize public and state interest over external influences.
In the above case, the court set aside the earlier HC’s order, directing the Judicial Magistrate to proceed with case as per the law, reaffirming the prosecutor's independent role The honourable court stated that – “The section is an enabling one and vests in the Public Prosecutor the discretion to apply to the Court for its consent to withdraw from the prosecution of any person. The consent, if granted, has to be followed up by his discharge or acquittal, as the case may be. The section gives no indication as to the grounds on which the Public Prosecutor may make the application, or the considerations on which the Court is to grant its consent. ” In the very recent SC case of “Mohd. Haneef v.
State of Kerala, 2024” 13 also, the appellant challenges a High Court judgment from August 5, 2019, which upheld the Trial Court's decision to dismiss a PP’s application to withdraw criminal case against him under Section 321 of CrPC. The case arose when the appellant, an ophthalmologist at Government Medical College, Alappuzha, allegedly demanded bribes for a consultation after operating on the complainant's mother. Despite maintaining an unblemished record and claiming that his actions were permissible under a government order allowing private practice, the Trial Court rejected the withdrawal application, which was also dismissed by HC. The Court found that PP had not adequately considered the case's merits. There was a pending discharge application under Section 239 of the then CrPC filed by the appellant, which stands closed for previous withdrawal request by the prosecutor.
However, since the SC declined interference with the withdrawal, the discharge application will now be revived, allowing the appellant to pursue it according to the law. The appeal is dismissed, and any pending applications are disposed of. There have been situations where the court denied the withdrawal requests, particularly if it
13 Mohd. Haneef v. State of Kerala, 2024 SCC OnLine SC 1886
could potentially undermine public trust in tjustice system of criminal. For instance, in the famously known case of “Rajkumar Kidnapping case”14, an appeal challenges a decision made by a Special Designated Court to withdraw charges under “Terrorist and Disruptive Activities (Prevention) Act (TADA)” against Veerappan, a notorious criminal involved in various offenses, including the kidnapping of actor Rajkumar. The appeal was filed by Abdul Karim, the father of a victim killed by Veerappan, who alleged that the withdrawal was improperly influenced by the government in exchange for Rajkumar's release. The facts reveal that Veerappan abducted Rajkumar and three others, demanding the release of his associates from prison.
He made twelve demands to the Tamil Nadu and Karnataka governments, which agreed to two significant requests: the release of his associates from Karnataka and five prisoners from Tamil Nadu. Following this, the Special PP applied to withdraw the TADA charges, claiming it was in the public interest to restore peace. However, the said prosecutor did not provide substantial reasons or evidence to support this claim, nor did he address the concerns raised by the appellant regarding the potential influence of government pressure on his decision. The court stresses that applications under Section 321 CrPC have to demonstrate good faith, public interest, and an independent assessment of the situation. Ultimately, the court ruled that the Special PP acted solely on government instructions without exercising his discretion, failing to adhere to the legal requirements.
As a result, the court upheld appeal, reaffirming the importance of prosecutors maintaining their duty to uphold justice and the rule of law. Withdrawal’s consequence The immediate consequence of withdrawal from prosecution results in discharge of the accused if the withdrawal occurs before an acquittal and after the entering of a plea, or acquittal if withdrawal occurs after a plea of guilty and before sentence. The most immediate and direct consequence of the withdrawal from prosecution is the “discharge” or “acquittal” of the accused, contingent on stage of criminal proceedings: • Discharge: If the prosecution is withdrawn before charges are framed, the court typically orders the discharge of the accused. This implies that the accused is released from the charges without a determination of guilt or innocence. A discharge occurs at a
14 Abdul Karim v. State of Karnataka (2000) 8 SCC 710
preliminary stage, often due to insufficient evidence, lack of public interest, or procedural issues. • Acquittal: In cases where charges have been framed, and the trial has commenced, the withdrawal of prosecution may lead to the acquittal of the accused. Acquittal signifies a formal judgment of not guilty and under Article 20(2) of India’s Constitution15, the principle of double jeopardy applies, preventing the accused from being tried for the same offence again. The acquittal, in this case, acts as a final bar against future prosecution on the same facts and charges. The difference between discharge and acquittal is significant. While discharge does not conclusively determine innocence or guilt of accused & leaves room for the reinstitution of proceedings, acquittal provides a more substantial legal safeguard, barring retrial on the same charges.
The susceptibility to future prosecution is a factor of whether the withdrawal leads to the discharge or an acquittal of charge. If accused is discharged before charges are framed next those charges can be revived at any time if new evidence is available or the procedural defect which led to the discharge of the accused has been cured. It is possible to do this because discharge is not a final verdict on innocence and guilt. However, if the accused is acquitted, the accused cannot be tried again for the same offence as this would violate the constitutional provision of double jeopardy. This legal principle, as in the case of “Ratanlal v. state of Punjab16” ensures that once acquitted, the accused cannot be retried for the same offence unless the acquittal is set aside on appeal or revision.
For the accused, withdrawal from prosecution can significantly impact their reputation and legal standing. Once the prosecution is withdrawn, the accused is relieved of the criminal charges, which may restore their social and professional reputation. In cases where withdrawal results in acquittal, the accused is absolved of legal liability and enjoys the finality of the acquittal under the double jeopardy rule. However, in cases of discharge, the accused may still face future prosecution if new evidence comes to light. The withdrawal of prosecution can also leave a lingering social stigma, particularly in high-profile cases, where the accused may not be able to fully reclaim their social standing despite the cessation of criminal proceedings. The
15 The Constitution of India, 1950
16 Ratanlal v. state of Punjab [1964] SCR (7) 676.
withdrawal from prosecution aids in the accused person's reintegration back into society. The accused can concentrate on restoring their life, including their reputation both personally and professionally, if the prosecution is withdrawn. The withdrawal's finality determines one's capacity for reintegration. The accused might still be in the dark about potential legal actions down the road if the case is withdrawn before acquittal. If the accused is acquitted, they can fully reintegrate into society knowing that they won't be prosecuted again for the same crime. Consideration and Principles for the withdrawal There is not a set of considerations or principles guiding this section. However, court with time has interpreted the section and laid down some basic guidelines. Still, it can change with “facts and circumstances” of case.
The prosecution may choose to withdraw charges if they believe they lack sufficient evidence or if new information undermines their case. Each case is unique, so it's hard to predict all possible factors. However, the Court must ensure that requests for withdrawal are based on justice and not on reasons that undermine the state's interest. The Public Prosecutor must provide valid reasons for wanting to withdraw the case, such as insufficient evidence or circumstances that wouldn't serve justice by continuing the prosecution. Ultimately, the interest of justice is the main guiding principle. Before granting consent, the court must confirm that the reasons for withdrawal are appropriate and would serve the law's purpose. The court isn't meant to reassess reasons provided by the PP but must check if they are reasonable.
If the court finds the request unreasonable or influenced by improper considerations, it can refuse consent. The Public Prosecutor must ensure that withdrawing the case is in the public interest. If the withdrawal request is based solely on a government order, it may not meet the legal requirements for withdrawal under Section 321. In the case of “Sheo Nandan Paswan v. State of Bihar17”, the honourable court noted that S.
321 of CrPc i.e 360 of BNSS does not specify grounds for withdrawal or considerations for the
court's consent. The Public Prosecutor initiates the request, and court's role is simply to give the consent, not to make judicial determinations. The court should ensure that the Public Prosecutor's decision isn't misused or intended to interfere with justice for illegitimate reasons. When an application is made under Section 321, the court doesn't need to evaluate the evidence
17 Sheo Nandan Paswan v. State of Bihar & ors. 1987 AIR SC 877
or predict the case's outcome; it only gives consent based on whether the PP is acting in good faith. Court’s consent isn't automatic; it must consider the Public Prosecutor's materials before deciding. Similarly, it is also established that Section 321 is the only provision concerning the withdrawal of warrant cases and does not allow private parties to request withdrawal, as it's a state matter. When the Public Prosecutor withdraws charges with the court's consent, it results in the accused being discharged or acquitted. Therefore, the consent decision is judicial act, and court have to exercise its discretion judiciously. Court should ensure that permission for withdrawal isn't sought for reasons unrelated to justice and that state offenses are not left unpunished merely because the government suggests withdrawal without following its prosecutorial duties.
The SC in the recent 2021 case, “State of Kerala v. K. Ajith, (2021)18” commonly referred to as “assembly ruckus case” formulated some guidelines for the then Section 321 of CrPC. The facts of the case are as followed, On March 13, 2015, during the Kerala Assembly's budget session, some MLAs disrupted proceedings and damaged property of the assembly. A case was filed under the IPC and “Prevention of Damage to Public Property Act”. In 2018, a request to withdraw this case was denied by High Court. Honourable apex court upheld this, stating that destruction of public property in the Assembly cannot be justified as free speech or protest. Withdrawing the case would undermine justice, and elected officials are not above the law.
A bench of Justices MR Shah & Chandrachud noted that when considering a plea to withdraw prosecution, the courts must ensure that it serves interests of justice and is not driven by any ulterior motive. The bench added that court can also examine the seriousness and nature of the given offense, along with its effect on public life, particularly in cases involving discharge of public trust or public funds. The court further formulated these guidelines –
1. Section 321 allows the PP to withdraw a case, but court approval is needed.
2. The PP can withdraw a case not only due to lack of the evidence but further to serve the
broader interests of “public justice”.
3. PP should form an opinion independently before seeking of the court's consent to
18 State of Kerala v. K. Ajith, (2021) 17 SCC 318
withdraw a case.
4. The court must ensure that the public prosecutor have valid reasons to withdrawing the
case, even if the request came from the government.
5. When deciding whether to approve a withdrawal request, the court plays a supervisory
role. It must ensure that: (a) The PP's actions are legitimate and not interfering with justice for incorrect reasons. (b) The request is in good faith and in furtherance of public policy and justice interest, rather than to delay or obstruct any litigation. (c) There are no serious issues or illegalities in the request that could cause unfairness if granted. (d) Granting consent supports the administration of justice. (e) The request is not made for any hidden motives unrelated to upholding the law.
6. In deciding if withdrawing the prosecution serves justice, the court can examine the
seriousness of the offense and its effects on public life, particularly in cases involving public funds or public trust.
7. When both trial judge and revisional court agree on giving or denying consent, the
Supreme Court will be cautious about overturning those decisions under Article 136 of Constitution. However, the Court may intervene if it finds that the trial judge or HC did not apply the correct principles in their decision. These are some of the guidelines that are based on judicial precedents. However, as the provision or the Sanhita does not explicitly mentions the ground the grounds are still open for interpretation and can be change with time. Conclusion Section 360 of the “Bharatiya Nagarik Suraksha Sanhita (BNSS)” marks a notable revolution in India's criminal procedure law, particularly concerning the withdrawal from prosecution. This provision, while largely based on the former Section 321 of the CrPC, introduces important change from the victim’s perspective.
Key aspects of Section 360 include the discretionary power given to Public Prosecutors to withdraw from prosecution and court’s consent along with requirement for Central Government permission in specific cases involving national and major interests. The court's crucial role in giving or rejecting consent, ensuring withdrawal serves the interests of justice. The evolution of judicial interpretation has provided some guiding principles for the application of this section, emphasizing the need for independent decision making by prosecutors and careful judicial scrutiny. These interpretations have helped shape the understanding and application of the provision, ensuring it serves its intended purpose within the criminal justice system.
Suggestions and way forward While Section 360 represents a step forward, there are several areas where improvements could be made to enhance its effectiveness and fairness. The BNSS could benefit from more explicit criteria for withdrawal, providing clearer guidance to prosecutors and courts. While the new proviso mandating victim participation is a positive step, mechanisms to ensure meaningful victim involvement could be further developed. A more precise definition or guidelines for determining "public interest" in the context of withdrawals would aid consistent application across different cases and jurisdictions. Consideration should be given to introducing a mechanism for appellate review of withdrawal decisions to ensure uniformity and prevent misuse.
Additionally, implementing requirements for public prosecutors to provide detailed, written rationales for withdrawal requests would increase transparency and accountability in the process. To improve Section 360, the Supreme Court could issue clear guidelines, similar to those from the "assembly ruckus case".