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In Karnataka, the thorny issue of withdrawing criminal cases has landed successive governments in a quagmire. Once the government announces its decision to withdraw certain criminal cases, opposition leaders cry foul over the partisan nature of the decision and the “misuse” of the power to withdraw cases. Compounding the government’s woes, the Supreme Court and the High Court have lambasted the government in certain cases for illegally usurping the power to withdraw cases.
Last month, the state government drew flak from the opposition and civil society after it announced a cabinet decision to withdraw around 52 cases registered in connection with protests and riots, among other crimes. Currently, the power to withdraw cases is in the spotlight after Home Minister Priyank Kharge stated that cases filed against farmers protesting against the proposed Bidadi Township would be withdrawn if they had been filed unfairly.
Does the government have the power to withdraw cases?
Under the statutory scheme, the power to withdraw cases can be traced to Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaced the erstwhile Section 321 of the Code of Criminal Procedure, 1973 (CrPC). Both the provisions read as follows:
“The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgement 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.”
As evident from the language of the provisions, the power to withdraw from prosecuting a case vests in the prosecutor in charge of the case. Furthermore, such withdrawal requires the trial court's consent. An additional safeguard has been introduced by the BNSS which mandates that the court shall hear the victim before the prosecutor is permitted to withdraw from prosecuting the case. Neither Section 360 of the BNSS nor the erstwhile Section 321 of the CrPC recognises the state government’s power to decide as to which cases ought to be withdrawn or even direct the prosecutors to withdraw from prosecuting certain cases.
The law recognises prosecutors as crucial actors in the criminal justice system and envisages their independence and nonpartisan functioning. In a catena of cases, the Supreme Court and High Courts have held that prosecutors must apply their independent discretion before deciding to withdraw from prosecution and must not blindly toe the government’s line.
Take, for example, the famous case of Abdul Karim vs State of Karnataka (2000), where the father of a police officer slain by forest brigand Veerappan challenged the Karnataka government’s decision to withdraw fourteen cases against Veerappan and his associates to secure Dr Rajkumar’s release from Veerappan’s custody. The Supreme Court faulted the prosecutor for acting on the government’s instructions without satisfying himself independently that such withdrawal was in public interest and would not cause injustice.
In addition to setting aside the withdrawal, the Court reprimanded the government for not considering the impact the withdrawal of these cases would have on the morale of the victims, police officers and the witnesses.
The Supreme Court’s disapproval of political influence guiding withdrawal of cases was expressed sternly in the case of Subhash Chander vs State (1979), where the Court held:
“The functionary clothed by the Code with the power to withdraw from the prosecution is the Public Prosecutor. The Public Prosecutor is not the executive, nor a flunkey of political power. Invested by the statute with a discretion to withdraw or not to withdraw, it is for him to apply an independent mind and exercise his discretion. In doing so, he acts as a limb of the judicative process, not as an extension of the executive.”
Public interest vs political expediency
What, then, ought to guide the prosecutor’s discretion to withdraw from prosecution?
The broad answers from the Supreme Court and the High Courts are “public interest” and “interest of administration of justice”. While the Courts have repeatedly held that whether withdrawal of a case would further public interest or not would depend on the facts and circumstances of each case, the Courts have also recognised restoration of peace, preservation of communal harmony and amicable settlement of disputes between groups as valid grounds to withdraw from prosecution.
In fact, the Courts have not prohibited the government from drawing the prosecutors’ attention to certain cases that may be withdrawn in public interest. Malfeasance creeps in when the government disregards well-founded objections of the law enforcement agencies, recommends withdrawal of cases to protect offenders and pressurises prosecutors to withdraw cases despite the violent nature of the offences.
In 2025, the Karnataka High Court quashed a government order dated October 15, 2024 which ‘directed’ the Director of Prosecution to take steps to get the necessary applications filed before the courts to withdraw 43 cases of rioting, unlawful assembly, etc. In many of these cases, the accused were legislators and politically influential individuals.
The Director of Prosecution and the Director General and Inspector General of Police had even recommended against the withdrawal of these cases when the government sought their opinion. The High Court minced no words in opining that the decision of the government was political in nature and left no room for the prosecutors to exercise their independent judgement. Similarly, in 2020 and 2021, the Karnataka High Court interdicted the state government’s attempt to withdraw cases of rioting, unlawful assembly, assaulting public servants, etc., which were pending against sitting and former legislators.
The elephant in the room
The most common justification offered by the government when it seeks to withdraw cases is that such withdrawals are necessary to protect innocent citizens who have been falsely implicated by the police. This is a tacit admission that the investigation has been unfair and that the safeguards against fabrication of evidence have failed. When the same justification is offered repeatedly, it reiterates the fact that shoddy investigations pose a threat to citizens’ liberty. Therefore, selective withdrawal of cases is, at best, a band-aid solution and also amounts to the State making a volte-face by disregarding its own agencies’ opinion that there was sufficient evidence to file a chargesheet against the accused. Unfortunately, though successive governments have been zealous about withdrawing cases, they have been nonchalant about addressing the underlying issue of biased and faulty investigations, especially in cases of riots and communal violence.
The other justifications offered by the government include the necessity of protecting protesters from criminal cases. This is, again, a band-aid solution to the problem of overcriminalisation and the tendency to view every protest through the narrow lens of maintaining public order.
A paradoxical situation has arisen where, on the one hand, cases pertaining to violent protests are being withdrawn, and on the other hand, fresh criminal cases are routinely filed even when the protests are peaceful, on the ground that they were held outside the designated area or because the “organisers” of the protests did not obtain prior permission.
The government would do well to address the underlying issues of overcriminalisation and faulty investigations instead of resorting to arbitrary withdrawal of criminal cases, especially when these cases involve calculated violence and politically influential offenders.
Simultaneously, trial courts ought to be vigilant while deciding applications seeking withdrawal from prosecution so that such withdrawals do not impinge on the victims’ rights or weaken the criminal justice system. Reckless withdrawal of criminal cases will make a mockery of the criminal justice system, as it creates a special class of offenders and emboldens them to violate the law knowing fully well that the government will thwart their prosecution eventually.
Rahul Machaiah is a lawyer from Karnataka. He holds an LLM in Law & Development from Azim Premji University. Views expressed are the author’s own.
