Release of Accused vs Withdrawal of Prosecution: What the Bombay HC held [Read Judgment]

The Bombay High Court recently clarified that an application for the release of an accused under Section 169 of the Code of Criminal Procedure (CrPC) cannot be invoked interchangeably with Section 321 CrPC, which deals with withdrawal from a case by the prosecutor. The Court ruled,.“… the scope of sections 169 and 321 of Cr.P.C. Sections 169 and 321 of Cr.P.C. cannot be substituted for each other. They can be invoked in different circumstances and the Court’s power after invocation of these two sections are not the same…”.Justice Mridula Bhatkar passed the ruling in a case involving charges levelled under the Narcotics Drugs and Psychotropic Substances Act, 1985. .The Union Government had filed a writ petition challenging the release of a persons charged for possessing methaqualone and Tramadol tablets. After being charged, the accused were produced before a Special Court. However, the Public Prosecutor then moved an application under Section 169 CrPC, intimating that the investigating agency had decided not to prosecute the accused..This was in view of a government notification brought to the Court’s attention, which would also have benefited the accused. By this notification, the government had provided an opportunity for manufacturers to dispose of Tramadol within a certain period. In response to the Prosecutor’s application, the judge released the accused..However, it later came to light that the investigating officer had not consented to the release of the accused. The police officer also filed an affidavit to this effect..In this backdrop, the question before the Bombay High Court was whether the Public Prosecutor could have moved an application for the release of the accused under Section 169 CrPC, in the absence of consent from the investigating officer. .The state argued before the High Court that the Public Prosecutor had inadvertently applied for the release of the accused. Further, it was contended that the release of the accused under Section 169 CrPC could not have been allowed in the absence of the investigating officer’s consent. .Section 169 CrPC deals with the release of accused when evidence is deficient. In such cases, the officer in charge of the police station may release the accused on the execution of a bond, with or without sureties. After such release, the accused may also be directed to appear as and when required..To the contrary, it was argued for the original accused that the Public Prosecutor has the power to withdraw from a case under Section 321 CrPC..Section 321 CrPC deals with withdrawal from prosecution. It provides that the Public Prosecutor or Assistant Public Prosecutor in charge may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of an accused..This prompted the Court to deliberate on whether an application made under Section 169 CrPC could be treated as an application made under Section 321 CrPC. .The Court answered this query in the negative, holding that,.“Though the implication seemingly appears to be the same, the legislative intent of the two sections [Sections 169 and 321 CrPC] is not so, therefore, both the Sections cannot be substituted for each other.”.To support this conclusion, the Court referred to the consequences which follow the application of the two provisions..When an officer-in-charge of a police station invokes Section 169 CrPC, the accused is only released. He may still be directed to appear if and when required..However, if the prosecutor chooses to withdraw from a case, the accused would no longer stand charged in the case. As per Section 321 (a), if the prosecutor withdraws from the case before the charge is framed against the accused, the accused would be discharged from the case. As per Section 321 (b), if the withdrawal is made after charges are framed, the accused would be acquitted. As noted by the Court,.“Under section 169 of Cr. P.C. accused is released. Thus, the terms used are to be understood with appropriate meaning, they do not carry same connotations so the effect.”.Additionally, the Court also noted that a prosecutor would have to obtain the consent of the Court before he can move an application to withdraw from a case under Section 321 CrPC. No such consent is required to be taken for a police officer to release an accused under Section 169 CrPC..“Under section 169 of Cr. P.C. no consent of the Court is contemplated and therefore, further prosecution of such released person under section 169 of Cr. P.C. is possible under section 319 of Cr. P.C. However, if there is a withdrawal from prosecution of any person with the consent of the Court under section 321 of Cr. P.C. on application moved by the prosecutor, then such person again cannot be brought back under section 319 of Cr. P.C.” .The Court further clarified that Section 321 CrPC cannot be invoked at the stage of an investigation. While the investigation is not complete, only Section 169 CrPC can be invoked by the police officer concerned. On this aspect, the Court reasoned,.“Under Section 321 when the investigation is not complete but during the enquiry, if prosecution forms the opinion that there is no evidence to proceed against the accused then it will be premature on the part of the prosecutor to move such application. The investigating agency may come across some evidence at later stage and may file the chargesheet thereafter.“.In view of these observations, the Court concluded that the Special Court had erred in allowing the 169 CrPC application moved by the prosecutor. Therefore, Justice Bhatkar set aside the lower court order discharging the accused. The government was given two weeks to file a complaint. The accused were directed to move the appropriate court for bail..Read the Judgment:.Bar & Bench is available on WhatsApp. For real time updates on stories, Click here to subscribe to our WhatsApp.