Section 360 of BNSS, 2023 — Withdrawal from Prosecution

Introduction

Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with withdrawal from prosecution.

It permits the Public Prosecutor or Assistant Public Prosecutor in charge of a case to withdraw from the prosecution of an accused, but only with the consent of the Court.

The provision is important because criminal prosecution is not treated as a matter that can simply be terminated privately between the accused and the prosecutor. Judicial supervision is required.

Section 360 substantially corresponds to Section 321 of the Code of Criminal Procedure, 1973 (CrPC).

Meaning of Withdrawal from Prosecution

Withdrawal from prosecution means the discontinuance of criminal prosecution against an accused by the Public Prosecutor or Assistant Public Prosecutor, subject to the consent of the Court.

The withdrawal is therefore:

• initiated by the Public Prosecutor or Assistant Public Prosecutor;
• subject to judicial consent;
• capable of resulting in either an acquittal or a discharge, depending upon the stage at which withdrawal takes place.

Statutory Basis

Section 360 BNSS provides that the Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, withdraw from the prosecution of any person.

The provision further distinguishes the consequences according to the stage of the case.

It also contains a special requirement where the offence:

• was investigated by a police officer; and
• is an offence against any law relating to a matter to which the executive power of the Union extends.

In such cases, the Central Government must be given an opportunity to direct the Public Prosecutor to withdraw from the prosecution before the Court grants consent.

Object and Purpose

The provision serves several purposes:

• prevents unnecessary continuation of criminal prosecutions;
• allows the Public Prosecutor to discontinue prosecution where continuation is no longer justified;
• preserves judicial supervision over withdrawal;
• protects the public interest;
• prevents withdrawal from being exercised solely as a private arrangement between parties.

The provision therefore balances prosecutorial discretion with judicial control.

Essential Elements

1. Public Prosecutor or Assistant Public Prosecutor must initiate withdrawal

The power is given to the Public Prosecutor or Assistant Public Prosecutor in charge of the case.

A private party cannot invoke Section 360 to compel withdrawal of prosecution.

The prosecutor must independently decide whether withdrawal should be sought.

2. Consent of the Court is mandatory

The prosecutor cannot unilaterally withdraw from prosecution.

The statutory language requires withdrawal to be made with the consent of the Court.

Therefore:

Prosecutor’s request + Court’s consent = valid withdrawal under Section 360.

3. Withdrawal may occur before judgment

The provision permits withdrawal from prosecution at the relevant stage before judgment is pronounced.

The Court must consider the request judicially rather than treating it as an automatic administrative act.

4. Public interest is relevant

The decision to withdraw should be connected with the interests of the administration of justice and public interest.

The prosecutor does not act merely as an agent of the executive or as a private representative of the complainant.

The prosecutor is an officer of the Court and must exercise the power responsibly.

Special Requirement Involving Central Government

Section 360 contains a special safeguard for certain offences.

Where the offence:

• was investigated by a police officer; and
• is an offence against a law relating to a matter to which the executive power of the Union extends,

the Court must ensure that the Central Government has been given an opportunity to direct the Public Prosecutor to withdraw from the prosecution before granting consent.

This requirement prevents withdrawal in such cases without giving the Central Government the opportunity contemplated by the statute.

Procedure

The procedure under Section 360 can be understood in the following sequence:

Step 1: Prosecutor considers withdrawal

The Public Prosecutor or Assistant Public Prosecutor in charge of the case considers whether withdrawal from prosecution is justified.

Step 2: Application/request is made to the Court

The prosecutor seeks the Court’s consent to withdraw from the prosecution.

Step 3: Court applies its judicial mind

The Court examines the request.

The Court does not merely act as a rubber stamp.

It must independently consider whether consent to withdrawal should be granted.

Step 4: Special Central Government opportunity, where applicable

Where the statutory conditions concerning an offence investigated by a police officer and relating to a matter within the Union’s executive power are satisfied, the Central Government must first be given the opportunity contemplated under Section 360.

Step 5: Court grants or refuses consent

The Court may grant consent if the statutory requirements are satisfied.

If the Court does not grant consent, the prosecution continues.

Step 6: Legal consequence follows

The consequence depends on the stage at which withdrawal occurs.

Effect of Withdrawal

Before a Charge Has Been Framed

Where withdrawal is made before a charge has been framed, the accused is discharged in respect of the offence.

Therefore:

Withdrawal before charge → Discharge

After a Charge Has Been Framed

Where withdrawal is made after a charge has been framed, or where no charge is required under the law, the accused is acquitted in respect of the offence.

Therefore:

Withdrawal after charge → Acquittal

This distinction is one of the most important points under Section 360.

Withdrawal from Prosecution of Multiple Accused

The provision may operate with respect to any person against whom the prosecution is being conducted.

Therefore, depending on the circumstances, withdrawal may relate to one or more accused persons.

The Court must nevertheless consider the legality and propriety of the withdrawal in the circumstances of the particular case.

Role of the Public Prosecutor

The Public Prosecutor has an important independent role under Section 360.

The prosecutor should not treat withdrawal as an instruction that must automatically be followed merely because an executive authority has requested it.

The prosecutor is expected to exercise professional and legal judgment.

The ultimate decision to permit withdrawal, however, belongs to the Court.

Role of the Court

The Court has a supervisory and judicial role.

The Court must consider:

• the circumstances of the case;
• the stage of the prosecution;
• the reasons for seeking withdrawal;
• the interests of justice;
• the public interest;
• whether the proposed withdrawal is lawful and appropriate.

The Court’s consent is therefore a substantive safeguard.

Nature of the Power

The power under Section 360 is discretionary, not automatic.

There is no absolute right in the Public Prosecutor to obtain withdrawal merely by filing an application.

Similarly, the Court cannot grant consent mechanically.

The prosecutor must exercise independent judgment and the Court must independently apply its judicial mind.

Important Case Law

Sheonandan Paswan v. State of Bihar

The Supreme Court considered the corresponding provision under Section 321 CrPC and explained the nature of the power of withdrawal from prosecution.

The decision recognised that withdrawal is a matter involving prosecutorial discretion but remains subject to the Court’s consent.

The prosecutor must act independently and in accordance with the interests of justice.

Abdul Karim v. State of Karnataka

The Supreme Court emphasised the importance of judicial scrutiny when considering an application for withdrawal from prosecution.

The Court’s role is not merely formal. It must consider whether withdrawal is justified in the circumstances of the case.

State of Kerala v. K. Ajith

The Supreme Court has reiterated that the Public Prosecutor must exercise independent judgment and that withdrawal cannot be treated as an executive command that the prosecutor is bound to implement mechanically.

These principles relating to Section 321 CrPC remain relevant to Section 360 BNSS because the statutory framework is substantially similar.

Important Distinctions

Withdrawal from Prosecution vs Compounding

Compounding under Section 359:

• specifically limited to compoundable offences;
• involves the person legally competent to compound;
• may require Court permission;
• valid composition results in acquittal.

Withdrawal under Section 360:

• initiated by the Public Prosecutor or Assistant Public Prosecutor;
• requires Court consent;
• may result in discharge or acquittal depending on the stage;
• is governed by prosecutorial and judicial considerations.

Withdrawal vs Acquittal

Withdrawal is the procedural act of discontinuing prosecution.

Acquittal is the legal consequence where withdrawal takes place after charge has been framed, or where no charge is required.

Thus, withdrawal and acquittal are not identical concepts.

Withdrawal vs Discharge

Where withdrawal takes place before the framing of charge, the accused is discharged.

Discharge therefore may be the consequence of withdrawal at an earlier stage.

BNSS and CrPC

Section 360 BNSS substantially corresponds to Section 321 CrPC.

The essential framework remains:

• Public Prosecutor or Assistant Public Prosecutor initiates withdrawal;
• Court’s consent is necessary;
• special Central Government requirement applies in specified cases;
• withdrawal before charge results in discharge;
• withdrawal after charge results in acquittal.

The principal change is the renumbering and incorporation into the BNSS framework.

Relationship with Section 359

The distinction between Sections 359 and 360 is particularly important.

Section 359 — Compounding

This concerns settlement of specified offences by the person legally authorised to compound.

Section 360 — Withdrawal from Prosecution

This concerns withdrawal by the Public Prosecutor or Assistant Public Prosecutor, subject to Court consent.

Therefore:

Section 359 = Compounding

Section 360 = Withdrawal from Prosecution

Common Confusions

Can the accused himself withdraw the prosecution?

No.

The statutory power belongs to the Public Prosecutor or Assistant Public Prosecutor in charge of the case, subject to Court consent.

Can the prosecutor withdraw without Court permission?

No.

The consent of the Court is mandatory.

Does withdrawal always result in acquittal?

No.

• Before charge → Discharge
• After charge → Acquittal
• Where no charge is required → Acquittal

Can the Court mechanically approve the prosecutor’s request?

No.

The Court must apply its judicial mind before granting consent.

Is withdrawal the same as compounding?

No.

Compounding is governed by Section 359, while withdrawal from prosecution is governed by Section 360.

Example

Suppose A is being prosecuted for an offence.

The Public Prosecutor, after independently considering the circumstances, seeks permission from the Court to withdraw from the prosecution.

If the Court grants consent:

• if the withdrawal occurs before charge is framed, A is discharged;
• if the withdrawal occurs after charge is framed, A is acquitted.

The result therefore depends on the procedural stage at which the withdrawal occurs.

Topic at a Glance

• Topic: Withdrawal from prosecution
• BNSS Section: 360
• Corresponding CrPC provision: Section 321
• Who can seek withdrawal: Public Prosecutor or Assistant Public Prosecutor in charge of the case
• Court consent: Mandatory
• Before charge: Discharge
• After charge: Acquittal
• No charge required: Acquittal
• Special requirement: Opportunity to Central Government in specified cases
• Nature: Prosecutorial discretion subject to judicial control
• Important principle: Court must apply its judicial mind
• Key distinction: Section 359 = compounding; Section 360 = withdrawal from prosecution

Quick Revision

• Section 360 BNSS deals with withdrawal from prosecution.
• The application is made by the Public Prosecutor or Assistant Public Prosecutor in charge of the case.
• Court consent is mandatory.
• The prosecutor cannot withdraw prosecution unilaterally.
• The Court must apply its independent judicial mind.
• In specified cases, the Central Government must be given an opportunity to direct withdrawal.
• Before charge → discharge.
• After charge → acquittal.
• Where no charge is required, withdrawal results in acquittal.
• Section 360 substantially corresponds to Section 321 CrPC.
• Section 359 = Compounding of offences.
• Section 360 = Withdrawal from prosecution.

ALSO READ: Section 359 – Compounding of offences

Conclusion

Section 360 BNSS creates a controlled mechanism for withdrawal from criminal prosecution. It gives the Public Prosecutor or Assistant Public Prosecutor the ability to seek withdrawal where justified, but makes the exercise of that power subject to the consent of the Court. The provision therefore combines prosecutorial discretion with judicial supervision. Its most important procedural distinction is that withdrawal before framing of charge results in discharge, while withdrawal after framing of charge, or where no charge is required, results in acquittal.