Section 360 BNSS: Withdrawal from Prosecution

Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) governs withdrawal from prosecution by the Public Prosecutor or Assistant Public Prosecutor in charge of a case. Withdrawal is not automatic: it requires the consent of the Court and must occur before judgment is pronounced.

In force: The BNSS came into force on 1 July 2024, subject to the exception stated in the Central Government commencement notification. Section 360 is therefore the current procedural provision governing withdrawal from prosecution in cases to which the BNSS applies.

What Section 360 BNSS provides

The provision enables the prosecutor in charge to seek withdrawal either from the entire prosecution of a person or from one or more offences for which the person is being tried. The legal consequence depends on the stage of the case.

Stage of withdrawal	Effect under Section 360
Before a charge has been framed	The accused is discharged in respect of the offence or offences withdrawn.
After a charge has been framed	The accused is acquitted in respect of the offence or offences withdrawn.
Where no charge is required under the BNSS	The accused is acquitted in respect of the offence or offences withdrawn.

Text of Section 360 BNSS

360. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment 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; and, upon such withdrawal,-

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;

(b) if it is made after a charge has been framed, or when under this Sanhita no charge is required, he shall be acquitted in respect of such offence or offences:

Provided that where such offence-

(i) was against any law relating to a matter to which the executive power of the Union extends; or

(ii) was investigated under any Central Act; or

(iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government; or

(iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution:

Provided further that no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case.

Essential requirements of withdrawal from prosecution

Prosecutor in charge: The application must be made by the Public Prosecutor or Assistant Public Prosecutor in charge of the case.
Before judgment: Withdrawal may be sought at any time before the judgment is pronounced.
Court consent: The prosecutor cannot terminate the prosecution unilaterally. Consent of the Court is mandatory.
Whole or part of prosecution: Withdrawal may relate to the prosecution generally or to one or more specified offences.
Central Government cases: In the situations listed in the first proviso, a prosecutor not appointed by the Central Government must obtain Central Government permission before moving the Court.
Victim hearing: The Court cannot allow withdrawal without giving the victim an opportunity of being heard.

Meaning of Court consent

Court consent is a substantive safeguard. The Court is not expected to approve a withdrawal mechanically. The prosecutor must form an independent view based on relevant considerations, and the Court must satisfy itself that the request is made for legitimate reasons consistent with the administration of justice.

The Supreme Court, while interpreting the corresponding withdrawal power under Section 321 of the Code of Criminal Procedure, 1973, has emphasised the independent role of the Public Prosecutor, the requirement of Court consent and the need for withdrawal to serve the broad ends of public justice. Those principles remain important interpretive guidance when considering the similarly structured power under Section 360 BNSS.

Victim's right to be heard

A significant express safeguard in Section 360 BNSS is the second proviso: no Court may allow withdrawal without giving the victim an opportunity of being heard. The Ministry of Home Affairs has described this as part of the victim-centric approach of the new criminal laws.

Practical point: A prosecutor's request and the victim's hearing are distinct steps. Even where the prosecution supports withdrawal, the Court must independently consider whether consent should be granted.

Central Government permission: when required

Additional permission is required where the offence concerns a matter within the Union executive power, was investigated under a Central Act, involves Central Government property, or was committed by a Central Government servant while acting or purporting to act in official duty. If the prosecutor in charge was not appointed by the Central Government, the prosecutor must obtain Central Government permission before seeking the Court's consent, and the Court must require production of that permission before granting consent.

Official legal sources

This page is a general legal information resource. For a pending criminal case, the applicable procedural law, transitional provisions, facts, stage of proceedings and any special statute should be examined before relying on Section 360.