Section 321 CrPC: Withdrawal from Prosecution under Section 360 BNSS
Withdrawal from prosecution permits the Public Prosecutor or Assistant Public Prosecutor handling a criminal case to seek the court's consent to discontinue prosecution before judgment. The former provision was Section 321 of the Code of Criminal Procedure, 1973 (CrPC); its corresponding provision is Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which has applied from 1 July 2024, subject to transitional rules.
Meaning of withdrawal from prosecution
Withdrawal from prosecution is the discontinuance of a criminal prosecution, wholly or in relation to specified accused persons or offences, on the application of the prosecutor in charge and with the consent of the competent court. The prosecutor must exercise independent judgment and the court must consider whether granting consent is consistent with the administration of justice and the public interest.
Section 321 CrPC and Section 360 BNSS: applicable law
Section 321 CrPC governed withdrawal under the 1973 Code. Section 360 BNSS now governs the corresponding procedure under the new law. Section 531 BNSS contains repeal and savings provisions relevant to proceedings pending when the BNSS commenced; the applicable procedural regime must therefore be assessed in the context of the particular case.
The full statutory text can be consulted through the Government of India BNSS chapter text and the Bureau of Police Research and Development BNSS reference PDF.
Conditions for withdrawal
- Eligible applicant: The Public Prosecutor or Assistant Public Prosecutor in charge of the case makes the request.
- Timing: The request must be made before judgment is pronounced.
- Court consent: Withdrawal requires the court's consent; an executive decision by itself does not terminate prosecution.
- Scope: Withdrawal may concern a person generally or one or more offences charged against that person.
- Victim hearing: Under Section 360 BNSS, the victim must be given an opportunity to be heard before withdrawal is allowed.
- Additional permission: Central Government permission is necessary in the specified categories described below when the prosecutor was not appointed by the Central Government.
Effect of withdrawal: discharge or acquittal
| Stage of proceedings | Legal consequence |
|---|---|
| Before framing of charge | The accused is discharged in respect of the relevant offence or offences. |
| After framing of charge | The accused is acquitted in respect of the relevant offence or offences. |
| Where no formal charge is required | The accused is acquitted in respect of the relevant offence or offences. |
The distinction is important: discharge and acquittal have different legal consequences. The result depends on the stage and type of proceedings as expressly provided by the statute.
When Central Government permission is required
The statutory proviso applies where the offence:
- concerns a law on a matter to which the Union's executive power extends;
- was investigated under a Central Act (the older CrPC specifically referred to investigation by the Delhi Special Police Establishment);
- involves misappropriation, destruction of or damage to Central Government property; or
- was committed by a Central Government employee while acting or purporting to act in official duty.
Where one of these conditions applies and the prosecutor in charge was not appointed by the Central Government, the prosecutor must obtain Central Government permission before moving for the court's consent. The court must require production of that permission before consenting.
Victim's right to be heard under BNSS
The additional proviso to Section 360 BNSS directs that no court shall allow withdrawal without giving the victim an opportunity of being heard. This does not give the victim an automatic veto; the court must hear the victim and decide the request in accordance with law. The Ministry of Home Affairs explanation of the victim-hearing safeguard confirms the purpose of this change.
Uttar Pradesh state amendment to Section 321 CrPC
Under Uttar Pradesh Act 18 of 1991, Section 3, words requiring the written permission of the State Government, to be filed in court, were inserted into Section 321 CrPC for its application in Uttar Pradesh. Whether and how this historical state amendment affects a particular pending proceeding after the commencement of the BNSS requires examination of the applicable savings provisions and current state legislation.
Correction to older material: Uttar Pradesh Act 17 of 1992 concerning compensation under Section 357(3) CrPC is a separate subject and does not amend the withdrawal-from-prosecution rule in Section 321.
How an application for withdrawal is considered
- The prosecutor reviews the evidence, reasons and public-interest considerations and forms an independent opinion.
- An application is made to the court handling the prosecution before judgment.
- Any required government permission is produced.
- The victim is given an opportunity to be heard where Section 360 BNSS applies.
- The court examines the request and decides whether to consent.
- If consent is granted, discharge or acquittal follows according to the stage of proceedings and the offences covered.
Frequently asked questions
Can the government withdraw a criminal case directly?
No. A withdrawal under these provisions requires action by the prosecutor in charge and the consent of the court; any necessary government permission is an additional requirement.
Can prosecution be withdrawn after judgment?
No. Sections 321 CrPC and 360 BNSS provide for withdrawal before judgment is pronounced.
Does the victim have a right to object?
Section 360 BNSS guarantees the victim an opportunity of being heard before the court allows withdrawal. The final decision rests with the court.
Is Section 321 CrPC still relevant?
Yes, for understanding the former law and its potential application to saved or pending proceedings. For proceedings governed by the BNSS, Section 360 is the corresponding provision.