Withdrawal of Prosecution in Cases Involving Sitting/Former MPs/MLAs — Mandatory Prior Leave of High Court — Scope of Ashwini Kumar Upadhyay Direction Following Ashwini Kumar Upadhyay v. Union of India, (2021) 20 SCC 599: No prosecution against a sitting or former MP/MLA can be withdrawn without prior leave of the High Court in suo motu proceedings registered pursuant to order dated 16-09-2020. High Courts must examine withdrawal proposals (pending or disposed of after 16-09-2020) in light of the Ajith guidelines. Held, this requirement of prior permission of the High Court applies in full to the present case. (Para 7, read with Paras 6, 9–10)

1. Criminal Procedure Code, 1973 — S. 321 (old S. 494) — Withdrawal from Prosecution — Role of Public Prosecutor and Court — Principles Restated

Held, power under S. 321 CrPC (corresponding to S. 528 BNSS) is:

• Initiated by the Public Prosecutor, who must form an independent opinion and act in good faith;

• Subject to consent of the Court, which performs a judicial/supervisory function to ensure that:

  • prosecutorial power is not exercised for illegitimate purposes;

  • withdrawal subserves the broad ends of public justice; and

  • application does not cause manifest injustice.

Principles in State of Kerala v. K. Ajith, (2021) 17 SCC 318 and State of Bihar v. Ram Naresh Pandey, 1957 SCC OnLine SC 22, reiterated: the Court must scrutinise whether the application is in public interest, not to stifle process of law, and that reasons for withdrawal are disclosed and relevant. (Paras 6, 8–9)

2. Withdrawal of Prosecution in Cases Involving Sitting/Former MPs/MLAs — Mandatory Prior Leave of High Court — Scope of Ashwini Kumar Upadhyay Direction

Following Ashwini Kumar Upadhyay v. Union of India, (2021) 20 SCC 599:

• No prosecution against a sitting or former MP/MLA can be withdrawn without prior leave of the High Court in suo motu proceedings registered pursuant to order dated 16-09-2020.

• High Courts must examine withdrawal proposals (pending or disposed of after 16-09-2020) in light of the Ajith guidelines.

Held, this requirement of prior permission of the High Court applies in full to the present case. (Para 7, read with Paras 6, 9–10)

3. Duty of High Court When Considering Permission to Withdraw Prosecution against MPs/MLAs

Held, the duty described in Ram Naresh Pandey (in context of Trial Court under old S. 494) applies “in letter and spirit” to the High Court when it considers applications seeking leave to withdraw prosecution in cases concerning MPs/MLAs:

• High Court must apply judicial mind;

• Public Prosecutor, as an officer of the Court, must place a fairly considered view and disclose reasons which weighed with him;

• Application must be accompanied by reasons and record;

• High Court must pass a reasoned order granting or refusing permission.

“Reasons are the soul of a judicial as well as an administrative function.” (Para 9)

4. S. 482 CrPC / S. 528 BNSS — Quashing in Face of Non-compliance with Ashwini Kumar Upadhyay Regime — Impermissible

The Trial Court refused withdrawal under S. 321 CrPC as the State had not obtained prior High Court leave as mandated in Ashwini Kumar Upadhyay, and gave time to seek such leave. The State did not do so. Accused sought quashing under S. 482 CrPC/S. 528 BNSS.

Held, in absence of the mandatory High Court permission for withdrawal, the prosecution cannot be treated as validly withdrawn and the High Court rightly declined to quash proceedings under S. 482. There is no legal infirmity in the impugned orders of the High Court dismissing the quashing petitions. (Paras 4–5, 10)

5. Result

Appeals dismissed. High Court orders refusing to quash proceedings under S. 482 CrPC/S. 528 BNSS affirmed. Supreme Court clarifies that it has expressed no opinion on merits of the underlying criminal cases; all contentions on discharge or at trial remain open to the appellant. (Para 10)

ANALYSIS OF FACTS AND LAW 

I. Factual Background

• The appellant is/was a political person (MP/MLA category case) against whom multiple FIRs were registered in 2007 in District Raebareli:

  • Crime Nos. 654, 655, 656/2007 under Ss. 25, 27, 30 Arms Act;

  • Crime Nos. 652, 653, 728/2007 under Ss. 420, 467, 468, 471 IPC (noting the judgment types 467, 468, 71 but clearly referring to forgery/cheating offences).

• Core allegation (for Arms Act cases): appellant held an arms licence allegedly in breach of the Arms Act, 1959.

• Investigation culminated in chargesheet dated 25-07-2007, and cognizance was taken on 10-08-2007 by the CJM, Raebareli.

• Subsequently, the District Magistrate restored the arms licence (earlier cancelled) by order dated 11-07-2012 in proceedings under S. 17(3)(b) Arms Act.

• A Government Order (G.O.) dated 06-08-2014 (No.1264/WC/Seven-Nyay-5-2014-842-WC/2012) recorded Government’s decision to withdraw Case Crime Nos. 654, 655, 656 of 2007 “in public interest and in the interest of justice”, and conveyed the Governor’s permission to file an application for withdrawal in Court through the Public Prosecutor.

• On this basis, the Public Prosecutor filed applications under S. 321 CrPC before the Trial Court on 27-08-2014 seeking withdrawal.

• Trial Court’s order (08-10-2021):

  • Noted that under Ashwini Kumar Upadhyay no criminal case against sitting/former MP/MLA can be withdrawn without High Court’s leave;

  • Held that, since such permission had not been obtained, it could not allow withdrawal;

  • Granted 30 days to the State to move the High Court for requisite permission, failing which the trial would proceed as per law.

• The State did not seek High Court permission.

• The accused then filed S. 482 CrPC / S. 528 BNSS applications before the Allahabad High Court seeking quashing of proceedings, citing the G.O. and PP’s withdrawal application.

• The High Court dismissed those applications in all cases (orders between 26-05-2025 and 30-05-2025), essentially on the ground that without the High Court’s permission as per Ashwini Kumar Upadhyay, the withdrawal could not be recognised.

• Hence, the present appeals under Article 136.

II. Legal Framework on S. 321 CrPC and Withdrawal

The Court reiterates and applies the settled jurisprudence:

1. From State of Kerala v. K. Ajith, (2021) 17 SCC 318:

   • S. 321 entrusts the initiative to the Public Prosecutor, but consent of the Court is mandatory.

   • Withdrawal may be justified not only due to paucity of evidence but also to the broad ends of public justice.

   • PP must form an independent opinion.

   • Court’s role is judicial/supervisory: it must satisfy itself that:

     • PP’s function not improperly exercised;

     • No attempt to derail normal course of justice;

     • Application is in good faith, in public policy and justice;

     • No improprieties that would cause manifest injustice;

     • Withdrawal subserves administration of justice, especially where public funds/public trust are involved.

2. From State of Bihar v. Ram Naresh Pandey, 1957 SCC OnLine SC 22:

   • S. 321 is an enabling provision; PP has discretion to seek withdrawal;

   • Court’s consent is a judicial function;

   • Court must ensure PP’s executive function is not misused for illegitimate reasons;

   • PP is an officer of the Court and must assist with a “fairly considered view”;

   • Court need not base its decision solely on evidence collected by judicial method (it can consider executive inputs, policy etc.) but must guard against abuse.

III. Special Regime for MPs/MLAs — Ashwini Kumar Upadhyay

In Ashwini Kumar Upadhyay v. Union of India, (2021) 20 SCC 599, a 3-Judge Bench held:

“No prosecution against a sitting or former MP/MLA shall be withdrawn without the leave of the High Court in the respective suo motu writ petitions registered…”

High Courts were directed to examine all such withdrawal proposals in light of Ajith’s principles.

Thus, where the accused is a sitting or former MP/MLA:

• The first threshold before any S. 321 withdrawal can be given effect to is prior leave of the High Court (in the suo motu monitored proceedings).

• Only after such leave is granted, the Trial Court can exercise its s.321 function to consent/refuse on the facts of the case.

IV. Application to Present Case

1. PP’s S. 321 Application and Trial Court’s Response

   • The PP’s S. 321 application relied on the G.O. asserting the Government’s decision to withdraw “in public interest and in the interest of justice”, but did not involve any High Court permission as required by Ashwini Kumar Upadhyay in MP/MLA cases.

   • The Trial Court correctly observed that, in view of SC directions, no withdrawal could be granted unless High Court permission was obtained, and accordingly deferred decision for 30 days.

2. State’s Inaction and Accused’s S. 482 Petitions

   • The State took no steps to seek High Court’s leave.

   • The accused tried to circumvent this by invoking S. 482 CrPC / S. 528 BNSS to get the proceedings quashed on the basis of the G.O. and the PP’s pending withdrawal application.

3. Supreme Court’s Conclusion

   • The Supreme Court held that, without High Court permission, the S. 321 process remains incomplete:

     • The Trial Court cannot grant withdrawal;

     • The prosecution cannot be treated as withdrawn in law.

   • Consequently, the High Court rightly dismissed the S. 482 / S. 528 petitions — there is no illegality in refusing to quash the proceedings when the statutory/procedural preconditions for withdrawal are not met.

   Therefore, the impugned orders are legally sustainable and do not warrant interference under Article 136.

V. Clarification on High Court’s Duty When Permission is Sought

Even though, in this case, the State never sought permission, the Supreme Court provides guidance for future cases:

• When a request for withdrawal of prosecution of MP/MLA is placed before the High Court in terms of Ashwini Kumar Upadhyay:

  • The PP’s application must clearly disclose reasons which weighed with him in seeking withdrawal;

  • The complete record of the case should be before the High Court;

  • The High Court must apply judicial mind, scrutinise the reasons and material against the Ajith criteria, and pass a reasoned order granting or refusing leave.

This ensures transparency and guards against politically motivated or mala fide withdrawals.

VI. Final Outcome and Liberty Reserved

• All Appeals are dismissed.

• The Court expressly does not express any view on the merits of the criminal cases (Arms Act and IPC matters).

• All contentions available to the appellant on:

  • Discharge, or

  • At trial,

remain open and can be raised at the appropriate stage before the competent court.