Can States Withdraw Cases Against Protesters? Understanding the BNSS Framework

The protest that erupted on 20 July 2026 ended with the resignation of Education Minister Shri Dharmendra Pradhan, alongside assurances that cases against the demonstrators would be withdrawn. States such as Bihar, Bengal, and Assam issued notifications to this effect. Matters took a sharper turn when the Hon’ble Supreme Court in Shailendra Mani Tripathi v. Union of India (W.P. Criminal No. 280/2026) stayed coercive action against students but directed that those with criminal antecedents must still face prosecution. However, legal jurisprudence on the withdrawal of cases does not permit their removal merely through government notifications.

What are the routes for withdrawal of cases/FIR?

An FIR is simply the record of information about a cognisable offence, which triggers a police investigation; Section 173 BNSS sets out how such information is to be registered. Through a catena of judgements of the Hon’ble Supreme Court, it is established jurisprudence that an FIR must be registered when information pertaining to a cognisable offence is presented to them. Basically, four broader routes are available to police/prosecution for closure of a case: one is pre-registration, and the other three are post-registration of FIR. As per Section 173(3), and after the Pratapgarhi judgement, for offences punishable with three to seven years, the police must first conduct a preliminary inquiry to see if a prima facie case exists, and only then decide whether to register an FIR. The other routes are basically filing a closure report under Section 189, or seeking withdrawal of prosecution under Section 360, or invoking the High Court’s plenary powers under Section 528 BNSS, commonly referred to as a quashing application. A closure report is not the same as withdrawal, since it follows an investigation that finds no offence, though the magistrate may still take cognisance later if an offence comes to light. Section 360 BNSS, which expressly governs withdrawal, requires two conditions: the court’s consent and an opportunity of hearing for the victim. The criminal justice process begins the moment an FIR is registered, and procedurally, the three routes outlined above are the only ways by which cases may be withdrawn. There is no plenary power of the State to withdraw cases by simply issuing a notification declaring that all FIRs registered against protestors between certain dates shall stand withdrawn. Hon’ble Supreme Court in Sheonandan Paswan v. State of Bihar has established that withdrawal from prosecution is an executive function, but the prosecutor’s discretion is limited and subject to judicial review to ensure it is exercised independently, in good faith, and within the purpose of the law. In sum, cases cannot be withdrawn merely by issuing a blanket notification declaring them withdrawn. In Shailendra Mani (supra), the Supreme Court directed the States to refrain from taking coercive measures against the students, while continuing investigation on the basis of registered FIRs.

Lawful Protest and the Limits of Immunity

The democratic ethos of this country thrives when citizens engage in debate and deliberation, which naturally gives rise to dissent on certain issues. The Constitution not only allows expression of views but protects it by virtue of Article 19(1)(a); however, the protection has certain restriction which has to be abided by the observers of the right. There is a right to assemble, but there is no right to convert that assembly into an unruly mob. Hon’ble Supreme Court in Ramlila Maidan case has recognised the right to protest as a fundamental right, while simultaneously imposing a duty on organisers to ensure that such gatherings do not degenerate into unruly mobs.What unfolded on 20 July, and in the days that followed, was the unchecked presence of anti-social elements carrying out unlawful acts around Jantar Mantar. Assaults on police officers, incidents of sexual harassment, and other cognisable offences cannot simply be ignored. Too often, protests of this kind turn into a fairground for such elements, who exploit the occasion for free food and idle diversions. Yet amidst this disorder, the genuine students who gathered to raise legitimate concerns should not be made to bear the brunt of the law merely because they happened to be present at the protest site. For that reason, States must tread with caution. A blanket withdrawal of cases is no answer in a republic governed by the rule of law. Both the government and the protestors have themselves acknowledged the presence of anti-social elements at the site. The tacit understanding between them reflected in the written assurance to Sonam Wangchuk and the press conference with CJP leaders was directed towards protecting peaceful students, not shielding unruly mobs or those with criminal intent.In this context, the Hon’ble Supreme Court, through its order in Shailendra Mani (supra), offered a measured way forward. By restraining States from resorting to coercive measures against innocent protestors, while at the same time allowing investigation and prosecution of those engaged in criminality, the Court provided a principled resolution to the dilemma before the government. It is this balance protecting democratic dissent without permitting anarchy that must guide the State’s approach.

Resting my case:

The CJP leadership is attempting to arm-twist the government into stepping beyond the limits of law. Yet the government cannot act outside the boundaries laid down by the Constitution and statute; every measure must remain within that framework. An FIR cannot simply be withdrawn through the issuance of a notification, this is the law, and no amount of assurance or political pressure can alter that reality. The state cannot close their eyes on the unlawful activities unfolded right in front of them. What the justice demands and law permits is bona fide investigation of the matter. The government has steered the matter with caution, exercising the utmost restraint and maintaining accountability throughout. It has even demonstrated openness to an impartial inquiry into the allegations of police brutality. Assurances alone cannot override the procedural safeguards laid down by the statute. Therefore, as directed by the Supreme Court, the investigation must continue, shielding students from coercive measures, yet standing firm against those who cross the line into criminality.