Section 321 CrPC vs Section 360 BNSS — Withdrawal from Prosecution

In India, Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 321 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. The prosecutor may still withdraw with the Court's consent before judgment, but the Court must now first give the victim an opportunity of being heard.

At a glance

Withdrawal is a procedure, not an offence, so neither the CrPC nor the BNSS First Schedule classifies it.

What changed

• New — second proviso to Section 360: "Provided further that no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case." Section 321 CrPC had no provision for the victim.
• Expanded — clause (ii) of the first proviso: an offence that "was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946)" → one that "was investigated under any Central Act". On a reading of the text, the class of cases needing Central Government permission is wider: the clause no longer names one investigating agency but any investigation under a Central Act. The Sanhita does not define the phrase, and no judgment read construes it.
• Minor edit — clause (b): "when under this Code no charge is required" → "when under this Sanhita no charge is required".
• Minor edit — punctuation of the proviso clauses: "extends, or" → "extends; or", and the same comma-to-semicolon change after clauses (ii) and (iii). The first proviso now ends with a colon to introduce the second proviso.
• Identical — the heading; the persons who may withdraw ("The Public Prosecutor or Assistant Public Prosecutor in charge of a case"); the requirement of "the consent of the Court"; the time limit "at any time before the judgment is pronounced"; withdrawal "either generally or in respect of any one or more of the offences for which he is tried"; clauses (i), (iii) and (iv) of the proviso; and the Court's duty to "direct the Prosecutor to produce before it the permission granted by the Central Government".

Statutory text (relevant extract)

Extract — Section 360 BNSS, opening words:

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 …

Extract — Section 360 BNSS, first proviso, clause (ii), and second proviso:

(ii) was investigated under any Central Act; or … Provided further that no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case.

Extract — Section 321 CrPC, proviso clause (ii) (old):

(ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or

How it works

1. Who may apply. Only "the Public Prosecutor or Assistant Public Prosecutor in charge of a case". Sections 18 and 19 BNSS (formerly Sections 24 and 25 CrPC) govern their appointment. A complainant's own route in a summons-case is Section 280 BNSS (formerly Section 257 CrPC), withdrawal of complaint.
2. When. "At any time before the judgment is pronounced". In Abdul Wahab K. (below) the Supreme Court read this as covering the period both before any evidence is taken and after the whole evidence has been taken (para 7).
3. What may be withdrawn. The prosecution of "any person", either "generally" or for "any one or more of the offences for which he is tried". Withdrawal can therefore be partial — against one accused among several, or for one charge among several.
4. Central Government permission (first proviso). If the offence (i) was against a law on a matter to which the executive power of the Union extends, (ii) was investigated under any Central Act, (iii) involved misappropriation, destruction of or damage to Central Government property, or (iv) was committed by a Central Government servant acting or purporting to act in official duty — and the prosecutor was not appointed by the Central Government — the prosecutor must have the Central Government's permission before moving the Court. The Court must direct the prosecutor to produce that permission before it consents.
5. Hearing the victim (second proviso). Before allowing withdrawal, the Court must give "the victim in the case" an opportunity of being heard. Section 2(1)(y) BNSS defines "victim" as a person who has suffered loss or injury caused by the act or omission of the accused, and includes the guardian or legal heir.
6. Consent. The Court consents or refuses. The section states no grounds; the tests come from the judgments below.
7. Effect. Under clause (a), withdrawal "before a charge has been framed" discharges the accused for the offence or offences withdrawn. Under clause (b), withdrawal "after a charge has been framed, or when under this Sanhita no charge is required" results in acquittal.

Worked example. A charge has been framed against three accused in a warrant-case. The prosecutor applies to withdraw against the third accused alone, for one of two offences. If the Court consents after hearing the victim, the third accused is acquitted of that offence under Section 360(b); the trial continues against all three for the other offence, and against the first two for both.

What this means in practice

For the victim. The second proviso gives a statutory hearing that Section 321 CrPC did not. The section does not say how the victim is to be told of the application, or what form the hearing takes. On a reading of the text, a victim who learns of an application should appear and ask to be heard before the Court decides, since the proviso forbids the Court to "allow" withdrawal without that opportunity. Section 2(1)(y) extends the right to the victim's guardian or legal heir.

For the Public Prosecutor. The application should state the material considered and the reasons. In Abdul Wahab K. the Supreme Court held that a prosecutor who had only placed the government notification on record "had acted like a post office" (para 12). Check the first proviso: where the offence was investigated under a Central Act, the text now requires Central Government permission unless the prosecutor was appointed by the Central Government.

For the accused and defence advocate. Note whether the charge has been framed: it decides whether the result is discharge (clause (a)) or acquittal (clause (b)). Whether a fresh prosecution can follow a discharge under Section 360(a) is a question the section does not answer, and no judgment read decides it.

For a sitting or former MP or MLA. The three-Judge Bench direction in Ashwini Kumar Upadhyay v. Union of India, as quoted in Bal Kumar Patel (below), requires the leave of the High Court for any withdrawal.

Judgments that still matter

No Supreme Court judgment applying Section 360 BNSS was found in the corpus searched. The operative words of Section 360 — "with the consent of the Court, at any time before the judgment is pronounced" and the effect clauses (a) and (b) — repeat Section 321 CrPC; on a reading of the text, judgments construing those words remain relevant. The victim-hearing proviso and "any Central Act" have no counterpart in them.

Rajendra Kumar Jain v. State through Special Police Establishment & Ors., [1980] 3 S.C.R. 982 (1980 INSC 105) — 2 May 1980. Bench of V.R. Krishna Iyer and O. Chinnappa Reddy JJ.; judgment by Chinnappa Reddy J. The Court upheld consents to withdraw prosecutions against a former Central Minister and others, dismissing the appeal and a connected special leave petition. It held that the power under Section 321 is a special power on the Court before which the prosecution is pending, not dependent on that Court's power to acquit or discharge under other provisions, so a committing Magistrate could consent (report pp. 991–992). Where "large and sensitive issues of public policy" are involved, the prosecutor may seek guidance from the government, and the Court must "make an effort to elicit the reasons for withdrawal" and satisfy itself that the prosecutor too was satisfied (pp. 997–998).

Sheonandan Paswan v. State of Bihar & Ors., [1987] 1 S.C.R. 702 (1986 INSC 279) — 20 December 1986. Constitution Bench. By majority (Khalid J. for himself and Natarajan J.; Venkataramiah J. concurring), the appeal against consent to withdraw corruption charges against a former Chief Minister was dismissed; Bhagwati C.J. (for himself and Oza J.) dissented. Khalid J. held that the Court need not assess the evidence to see whether the case would end in conviction: "All that the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law" (report pp. 781–782). The dissent would have held that in a warrant-case instituted on a police report the prosecutor should not seek withdrawal on the ground of insufficient or no evidence, leaving that question to discharge under Section 239 CrPC. K. Ajith (below) applied Khalid J.'s test (para 58).

Abdul Wahab K. v. State of Kerala & Ors., [2018] 11 S.C.R. 155 (2018 INSC 814) — 13 September 2018. Bench of Dipak Misra C.J.I. and D.Y. Chandrachud J.; judgment by the Chief Justice. The Chief Judicial Magistrate had allowed withdrawal of charges under Sections 195A and 506 IPC after assessing the merits, and the High Court dismissed revisions by the appellants as third parties. The Supreme Court held that the prosecutor "had acted like a post office", having only placed the government notification on record, and that the magistrate's order was "not within the parameters of Section 321" (para 12). The petitioners "could not have been treated as strangers" (para 12). Both orders were set aside and the application remitted for fresh consideration (para 14).

State of Kerala v. K. Ajith & Ors., [2021] 6 S.C.R. 774 (2021 INSC 366) — 28 July 2021. Bench of D.Y. Chandrachud and M.R. Shah JJ.; judgment by Chandrachud J. The State sought to withdraw prosecutions of MLAs for destroying property on the floor of the Kerala Legislative Assembly; the Chief Judicial Magistrate refused consent and the High Court agreed. The Supreme Court dismissed the State's appeals (para 85). It formulated the principles in para 23: the decision is the prosecutor's but consent is the Court's; withdrawal may further "the broad ends of public justice", not only for paucity of evidence; the prosecutor "must formulate an independent opinion"; and the Court, exercising a judicial function "supervisory in nature", must be satisfied among other things that the application was made in good faith and that consent "sub-serves the administration of justice". Good faith "is not in itself dispositive" (para 58). Admissibility and sufficiency of evidence are for trial, not a withdrawal application (para 84).

Bal Kumar Patel @ Raj Kumar v. State of U.P., 2025 INSC 1378 — 3 December 2025. Bench of Sanjay Karol and N. Kotiswar Singh JJ.; judgment by Karol J.; non-reportable. The trial court did not allow the State's applications to withdraw the prosecutions against the appellant because the High Court's permission, required for prosecutions of sitting or former MPs and MLAs, had not been sought; the High Court refused to quash the cases. The Supreme Court dismissed the appeals (para 10). It quoted the three-Judge direction in Ashwini Kumar Upadhyay v. Union of India that no prosecution against a sitting or former MP or MLA "shall be withdrawn without the leave of the High Court" (para 7), and held that the prosecutor's application disclosing reasons, and the case records, should be before the High Court, which "would exercise its judicial mind and give a reasoned order" (para 9). The withdrawal applications were made under Section 321 CrPC; the appeals arose from the High Court's refusal to quash under Section 482 CrPC/Section 528 BNSS.

Which law applies to your case

Section 531(2)(a) BNSS provides that any appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 is to be "disposed of, continued, held or made" under the CrPC "as if this Sanhita had not come into force". On a reading of that text, a withdrawal in a trial pending on that date is governed by Section 321 CrPC, which has no victim-hearing proviso; whether the Court should nonetheless hear the victim is not answered by the transition text. On the same reading, cases instituted on or after 1 July 2024 are governed by Section 360 BNSS. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 321 CrPC?

Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 321 of the Code of Criminal Procedure, 1973 from 1 July 2024. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may still withdraw from the prosecution, with the consent of the Court, at any time before the judgment is pronounced.

What is new in Section 360 BNSS?

Two things. A second proviso states that no Court shall allow withdrawal without giving an opportunity of being heard to the victim in the case. And clause (ii) of the Central Government proviso now covers an offence investigated under any Central Act, where Section 321 CrPC named only investigations by the Delhi Special Police Establishment.

Does the victim have to be heard before a prosecution is withdrawn?

Yes, under Section 360 BNSS. The second proviso bars any Court from allowing withdrawal without giving the victim an opportunity of being heard. Section 2(1)(y) BNSS defines a victim as a person who has suffered loss or injury caused by the act or omission of the accused, including the guardian or legal heir. Section 321 CrPC had no such proviso.

Is the accused discharged or acquitted when the prosecution is withdrawn?

It depends on the stage. Under Section 360(a) BNSS, withdrawal before a charge is framed results in discharge for the offence or offences withdrawn. Under Section 360(b), withdrawal after a charge is framed, or where the Sanhita requires no charge, results in acquittal. Section 321 CrPC was the same.

Can the government order the Public Prosecutor to withdraw a case?

The section gives the decision to the Public Prosecutor and the final say to the Court. In State of Kerala v. K. Ajith ([2021] 6 S.C.R. 774) the Supreme Court said the prosecutor must form an independent opinion and that a government initiative does not by itself vitiate an application, but the Court must elicit the reasons. In Abdul Wahab K. v. State of Kerala ([2018] 11 S.C.R. 155) an order was set aside where the prosecutor had acted 'like a post office'.

When is Central Government permission needed to withdraw?

Under the first proviso to Section 360 BNSS, where the offence was against a law on a matter within the Union's executive power, was investigated under any Central Act, involved Central Government property, or was committed by a Central Government servant in official duty, a prosecutor not appointed by the Central Government needs its permission, and the Court must direct that the permission be produced before consenting.

Can a prosecution against an MP or MLA be withdrawn?

Section 360 BNSS makes no special rule. In Bal Kumar Patel v. State of U.P. (2025 INSC 1378) the Supreme Court quoted a three-Judge Bench direction in Ashwini Kumar Upadhyay v. Union of India that no prosecution against a sitting or former MP or MLA shall be withdrawn without the leave of the High Court, and held that the application disclosing reasons and the case records should be before the High Court, which would give a reasoned order.

Does Section 360 BNSS apply to a trial pending on 1 July 2024?

Section 531(2)(a) BNSS provides that a trial or application pending immediately before 1 July 2024 is continued under the CrPC as if the BNSS had not come into force. On a reading of that text, a withdrawal in such a trial is governed by Section 321 CrPC, which has no victim-hearing proviso.

Related

• Public Prosecutors and Assistant Public Prosecutors — CrPC 24–25A vs BNSS 18–20
• Compounding of offences — CrPC 320 vs BNSS 359
• Discharge — CrPC 227 and 239 vs BNSS 250 and 262
• Criminal revision — CrPC 397 vs BNSS 438
• Offence before 1 July 2024 — which law applies
• CrPC to BNSS master table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette of India text): Sections 2(1)(y), 18, 19, 360, 531(2)(a).
• Code of Criminal Procedure, 1973 (original India Code text): Sections 2(wa), 321.
• Judgments read (Supreme Court judgment text): Rajendra Kumar Jain (1980_3_982_1005_EN.md); Sheonandan Paswan (1987_1_702_797_EN.md); Abdul Wahab K. (2018_11_155_165_EN.md); K. Ajith (2021_6_774_849_EN.md); Bal Kumar Patel (Diary_20628-2025_Judgment.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.