Source: Kerala High Court 

Why in News? 

Recently, Kerala High Court held that an accused can independently challenge a trial court’s arbitrary and unreasoned refusal to grant consent for withdrawal of prosecution under Section 360 BNSS / Section 321 CrPC, even if the State does not appeal. 

• The Kerala High Court held this in the case of George Alexander @ Prince v. State of Kerala (2025). 

What was the Background of George Alexander @ Prince v. State of Kerala (2025) Case ? 

• The present matter arose before the Kerala High Court through two revision petitions filed by accused persons challenging trial court orders that refused consent to withdraw prosecution against them. Justice Kauser Edappagath presided over the consolidated hearing of Crl.R.P. No. 268 of 2017 and Crl.R.P. No. 23 of 2017. Both cases presented the common legal question of whether an accused person can challenge a trial court's order refusing consent to withdraw prosecution under Section 360 of BNSS (Section 321 of CrPC) when the State has chosen not to challenge such orders. 
• The first revision petition originated from S.C. No. 684 of 2013 pending before the Additional Assistant Sessions Court, Thalassery. The petitioners in this case were accused Nos. 1 to 5 and 7 to 9, who faced multiple serious charges under various statutory provisions. The offences alleged against these accused persons were punishable under Sections 143, 147, 148, 452, 427, 332, and 152 read with Section 149 of the Indian Penal Code. Additionally, they were charged under Sections 3 and 5 of the Explosive Substances Act, Section 25(1A) of the Arms Act, Sections 3(1) read with Section 7 of the Prevention of Damage to Public Property Act, and Section 38 read with Section 52 of the Kerala Police Act. 
• The accused persons initially appeared before the trial court and were subsequently released on bail. Following their release, the Public Prosecutor filed an application numbered CMP No. 1203/2015 under Section 321 of the Criminal Procedure Code seeking withdrawal from prosecution against all the accused persons. The learned Additional Assistant Sessions Judge, after considering the application, dismissed the same through an order dated 28.07.2015. Aggrieved by this dismissal, the accused persons approached the Kerala High Court by filing Crl.R.P. No. 268 of 2017 challenging the trial court's refusal to grant consent for withdrawal from prosecution. 
• The second revision petition emerged from C.C. No. 689 of 2009 on the files of the Judicial First Class Magistrate Court, Thiruvalla. This case involved a sole accused person who was charged with offences punishable under Sections 466 and 468 of the Indian Penal Code. Section 466 pertains to forgery of record of Court or of public register, while Section 468 relates to forgery for the purpose of cheating. The accused person appeared before the trial court and was released on bail after the initial proceedings. 
• Subsequently, the Assistant Public Prosecutor filed an application numbered Crl.M.P. No. 7326 of 2016 under Section 321 of the Criminal Procedure Code (corresponding to Section 360 of BNSS) seeking withdrawal from prosecution against the accused. The learned Magistrate, after examining the application, dismissed it through an order dated 07.12.2016. The accused person, being dissatisfied with this dismissal, filed Crl.R.P. No. 23 of 2017 before the Kerala High Court challenging the trial court's refusal to grant consent for withdrawal from prosecution. 
• Both revision petitions raised the identical legal question regarding the maintainability of revision petitions filed by accused persons against orders refusing consent to withdraw from prosecution when the prosecuting agency has not challenged such orders. During the hearing of these revision petitions, the Kerala High Court expressed doubts about the maintainability of such petitions filed by accused persons. Consequently, the learned counsel for the revision petitioners and the learned Public Prosecutor were requested to address detailed arguments on the question of maintainability along with the merits of the respective cases.

What were the Court’s Observations?

• Legislative Framework and Executive Function: The Court observed that under the scheme of BNSS and CrPC, prosecution of an offender is primarily the responsibility of the executive branch of government, and withdrawal of prosecution constitutes an executive function where Section 360 of BNSS establishes a dual requirement - the application must be made by the Public Prosecutor or Assistant Public Prosecutor, and the consent of the court must be obtained for such withdrawal. 
• Object and Purpose of Section 360: The Court observed that the object of Section 360 of BNSS is to reserve power to the Executive Government under the supervision of the judiciary, enabling withdrawal of criminal cases on larger grounds of public policy while also serving to protect accused persons from unnecessary and vexatious prosecution, reflecting the legislative intent to balance executive discretion with judicial oversight. 
• Judicial Function and Court's Role: The Court observed that the provision contemplates consent by the court in a supervisory manner rather than an adjudicatory capacity, where the court's duty is not to reappreciate the grounds which led the public prosecutor to request withdrawal but to consider whether the Public Prosecutor applied his mind as a free agent uninfluenced by irrelevant considerations. 
• Revisional Jurisdiction and Locus Standi: The Court observed that the revisional jurisdiction of the High Court under Section 438 read with Section 442 of BNSS refers to its supervisory power to examine the correctness, legality, or propriety of any finding, sentence or order, and if third parties can challenge orders passed under Section 360 of BNSS in revision, there is no reason why an accused person, who is the real aggrieved party, cannot maintain a revision under these provisions. 
• Accused Person's Right to Challenge: The Court observed that if an order refusing to grant consent for withdrawal from prosecution under Section 360 of BNSS is vitiated by non-application of mind to relevant materials, or is demonstrably illegal, arbitrary, or perverse resulting in miscarriage of justice, the accused being the person aggrieved has every right to challenge the same in revision, even if the State has not chosen to challenge the order. 
• Trial Court's Deficiencies: The Court observed that both impugned orders were not speaking orders and failed to meet the basic requirements of judicial decision-making, with no reasons stated for not allowing the applications filed by the Prosecutor for withdrawal from prosecution, and the failure of trial courts to provide reasoned orders and their non-application of mind to the relevant materials amounted to a miscarriage of justice. 

What is Section 360 of BNSS? 

• Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) empowers Public Prosecutors and Assistant Public Prosecutors to withdraw from prosecuting criminal cases with the court's permission.  
• This provision allows withdrawal at any time before final judgment, either for all charges or specific charges against the accused.  
• The legal consequence depends on the timing of withdrawal - if done before charges are framed, the accused is discharged, while withdrawal after charges are framed results in acquittal. Special permission from the Central Government is required for cases involving Union matters, Central laws, government property damage, or crimes by Central Government employees during official duty. 

Landmark Judgments on Withdrawal of Prosecution 

• Abdul Wahab K v. State of Kerala (2018): The Supreme Court emphasized that Public Prosecutors and Assistant Public Prosecutors have a crucial independent role under the statutory framework. They must apply their own mind and carefully consider the societal impact of granting withdrawal permission, ensuring they act as independent judicial officers rather than mere government representatives. 
• State of Kerala v. K Ajith and others (2021): This judgment established comprehensive guidelines for courts deciding withdrawal applications. The Court must verify that the Public Prosecutor's function has not been improperly exercised, the application is made in good faith for public policy and justice rather than to obstruct legal processes, it doesn't contain improprieties that would cause manifest injustice, the consent serves justice administration, and permission isn't sought for ulterior purposes unconnected with law vindication.