Withdrawal from prosecution
Author: Bhairabi Das
ISSN: 2582-3655
This research paper mainly attempts to understand how Section 321 of the Criminal Procedure Code is misused and used arbitrarily and for political reasons by the states. It is further discussed in detail the ill-famed incident on how the Uttar Pradesh government tried to withdraw numerous cases as they were related to either member of the party or government officials. These acts were overturned by landmark judgments which are thoroughly discussed in detail. Similarly, to the above incident, many other states have tried to use this power arbitrarily. The landmark judgments provide for the flaws in the system and suggest solutions to issues we have encountered.
INTRODUCTION: WITHDRAWAL FROM PROSECUTION
Withdrawal from prosecution is the process initiated by the Public Prosecutor or Assistant Public Prosecutor in charge of the case with the consent of the court at any time before the judgment is pronounced by the court for withdrawing from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. Withdrawal of prosecution can be requested by the state but the prosecutor in charge has applied his independent mind before forwarding an application to the court. A request for withdrawal from prosecution can only be made if the withdrawal is in view of public interest. In the case of Sheo Nandan Paswan Vs. State of Bihar and others (1983)[1] Supreme Court stated that under Section 321 the Public Prosecutor or Assistant Prosecutor may go for withdrawal from prosecution with the consent of court provided that the prosecutor applies his own mind without any outside influence and the court before which the matter is pending cannot permit the withdrawal without applying its own mind on the basis of facts and merits of the case. The supreme court stressed the fact that the prosecutor shall not perform such tasks on the whims of any political parties and apply his own mind, also stated that the mere fact that the government has dictated to withdraw from prosecution does not render the act of the prosecutor illegal.
Withdrawal from prosecution is beneficial for the judiciary as it lessens the burden on it, hitherto the judiciary has many pending cases and withdrawal of such cases is helpful as cases which lack prospect for successful prosecution in light of the evidence, the implication of a person for personal or political vendetta, inexpediency of prosecution and adverse effect on public interest can be withdrawn as such cases would only delay and hinder the proceedings of the judiciary.
Section 321 of Criminal Procedure Code can be misused variously and has been used by the time and time again by many political parties to get rid of cases related to either person connected to the party or to gain any political favours which are illegal and fringe the rights of the citizens as well as the victims of the case which is being withdrawn unreasonably on the whims of the political parties. Further, we will discuss such instances where Section 321 was previously used inappropriately by the political parties personally as per their needs, there were various political parties who attempted to do as such and many succeeded and many failed too.
MISUSE OF SECTION 321 OF CODE OF CRIMINAL PROCEDURE 1973
Although withdrawal from prosecution is done to lighten the burden of the court when a case reaches a point where the case cannot be proceeded further due to various reasons mentioned in Section 258, 256, 249 of CrPC;[2] it can be misused grievously by politicians to their personal bias as they see fit for themselves. A politician can use such loophole to their advantage through various means and for various reasons, such as withdrawing cases related to accused who might be of their benefit or for religious reasons or to abuse power on particular victims which leads to biasness and gives rise to a genuine issue i.e. whether a prosecutor can withdraw from prosecution by the directions from the state government to withdraw from prosecution in absence of a request from the public prosecutor in charge of the case.[3]
“Purging of Misdeeds”: UP CM’s Yogi Adityanath bid to cleanse the Sins
There are numerous articles discussing the misuse of section 321 of CrPC by many political parties the most shocking one yet is by the Uttar Pradesh government; the Yogi Adityanath government allegedly ordered the withdrawal of 1995 cases and 14 other cases pending against a Union Minister and a BJP MLA. Incidentally, the case against Yogi Adityanath was ordered to withdraw from prosecution a day before the Uttar Pradesh Criminal Law (Composition of Offences and Abatement of Trials) (Amendment) Bill, 2017 was tabled in the State Assembly.[4] Before the bill was tabled, Yogi Adityanath also claimed that 20,000 politically motivated cases were pending against him which the Government would not be able to withdraw once the bill is passed. This is not the only time such an incident has happened during the reign of Yogi Adityanath government, similar to the event mentioned above when Yogi Adityanath was declared Chief Minister of Uttar Pradesh his government had told the Allahabad High Court that he cannot be prosecuted for allegedly making a hate speech during the communal riots in Gorakhpur in 2007, this form of behaviour is uncalled for by the state government as it is not up to the government to decide whether a prosecution against the post holder can be filed or not, it is up to the judicial body to decide.
Muzaffarnagar Riots Accused Freed
The Yogi Adityanath government recently also recommended the withdrawal of 38 criminal cases against more than 100 individuals who were charged in the 2013 Muzaffarnagar riots case that took place when the Samajwadi Party was in power.[5] The cases included charges of dacoity, use of fire and explosive substances, and defiling places of worship, and outraging religious sentiments. The government was criticized severely for the move. The justification for such actions was said to be that most of the cases were filed against people who were poor and do not even have money to afford a lawyer or such expenses arising from the proceeding and even reasoned that some were falsely accused.
Further according to PTI (Press Trust of India), the instruction for withdrawal from prosecution was given only after when the state government sought details regarding 125 cases filed in connection with the Muzaffarnagar riots of 2013. Several leaders of the ruling BJP, including MPs Sanjeev Balyan and Bharatendra Singh, MLAs Sangeet Som, and Umesh Malik, had been named in these 125 cases. Minister in the state government Suresh Rana and Hindutva leader Sadhvi Prachi were also accused in cases related to the Muzaffarnagar riots.[6]
Jat Reservation: Rioters rescued for Political Benefits
Similarly, in Haryana, the Government ordered to withdraw 85 FIRs related to February 2016 Quota violence. Additional Chief Secretary (Home) SS Prasad conveyed to the press that approval to withdraw 85 FIRs against 869 Jat protesters had been given by the government from thirteen districts. A major chunk of these cases was associated with rioting, wrongful restraint, unlawful assembly, noncompliance with the orders, and publicizing the same by a public servant and immobilizing public servants to perform their duties. The cases were filed in February 2016 after the Jat quota stir in the state turned into a violent protest.
A PIL was subsequently filed by Ranjan Agnihotri and five other local lawyers who were determined to quash the order passed by the state to withdraw cases regarding terror activities and a few bomb blasts cases. The judgment was delivered by the high court’s Lucknow bench of justices Devi Prasad Singh, Ajai Lamba, and Ashok Pal Singh on questions raised by a two-judge division bench.[7]
“Prosecution under central acts cannot be withdrawn without the permission of the central government,” the three-judge bench said. “For offences under Unlawful Activities (Prevention) Act, Explosive Substances Act and Arms Act and the offences falling in Chapter VI of IPC or alike offences the executive power of the Union of India extends, hence the permission of the central government with regard to the withdrawal of prosecution shall be necessary,” it held.[8]
In the case of Ranjana Agnihotri’s[9] case, the bench of Allahabad High Court scrutinized the construal of section 321 of CrPC and discussed four issues on its interpretation. By an order by the state, the Public Prosecutors, in charge of cases, mobilized applications for withdrawal from the prosecution of the accused in the said cases. The petitioners aggrieved with the unjust act of the government as it hindered the process of giving justice to the victims on the case a hence challenged the vires of Section 321 of the Code of Criminal Procedure, 1973 as well as the order issued by the State Government to the Prosecutors for withdrawal from the prosecution of those particular cases.
The division bench brought four issues to be concerned about which were, firstly that can the government order for the withdrawal of a case from prosecution without the request of the prosecutor in charge of the case, secondly, can the prosecution be withdrawn without any the concrete reason given by the prosecutor in charge, thirdly can the prosecution withdraw cases related to central act without the permission of the central government, lastly, the bench questioned is there any possibility that after granting a sanction for prosecution, can the state review its own action by ordering a withdrawal from prosecution.
The bench answered the above questions framed by the division bench, the bench explained that the government can indeed process an order for withdrawal from prosecution without there being a request from the prosecutor in charge of the case provided that the prosecutor must apply his independent mind before giving forth the application of withdrawal further explained that the application of withdrawal cannot be moved forward unless there is a concrete reason to do so and also stated that it is necessary by the state to take permission from the central government before withdrawing any cases regarding central act under Section 321, CrPC is necessary and lastly explained that the state government has the authority to review its own sanction and pass an order for withdrawal from prosecution, provided the prosecutor applies his unbiased mind before moving the application.[10]
The bench referred to Godwin’s book for wisdom in the matter “Democracy restores to man consciousness of his value, teaches him by the removal of authority and oppression to listen only to the dictates of reason, gives him the confidence to treat all other men as his fellow beings and induces him to regard them no longer as enemies against whom to be upon his guard, but as brethren whom it becomes him to assist.”
Subsequently, a new was bench was formed to analyze the power of the government under section 321 of Cr. P. C., the bench (Cri Misc. Writ Petition no. 10861/2015. Ram Narayan Yadav vs State of UP and others) considered three issues for discussion which were first, can the government use the power of withdrawal from prosecution under section 321 of CrPC arbitrarily secondly are the orders given by the government to withdraw from prosecution to the prosecutor open for judicial review in a writ jurisdiction under article 226 of the Indian constitution and lastly should the state observe criminal cases pending in various courts and scrutinize as to whether the cases are to be withdrawn or not.
The bench discussed and replied the above-referred questions in the following manner in its judgment dated 20th February 2017 as follows, the government is not to use the power arbitrarily and must have a material reason to do so, all decisions by the state for withdrawal from the prosecution are open to judicial review under Article 226 of the Indian Constitution on the grounds described for invoking the criteria of judicial review, the government is free to act and scrutinize criminal cases pending in courts as to discuss whether they should be withdrawn from prosecution or not.[11]
In conclusion, although the state can direct the Public Prosecutor to withdraw the case, regardless the Public Prosecutor must apply his independent mind before moving an application or taking any action to such order and as per the court, the court is also bound to accept the application only after discussing the merits and facts of the case only after such observation the court can take a decision against the application if the court deems so fit. It may also reject the application if it observes that the case has prospects for successful prosecution or it is not an implication against a person or there is the expediency of the prosecution then the court can reject such application on the basis of such merits. The government cannot direct the prosecutor to withdraw any case without giving a genuine reason, there must be a genuine reason to take such action and even if such an activity is overlooked and comes in light at a later date then the judiciary has the power to review its own actions and hence there are ample checks and balances on the government so there is no inappropriate use of the section.
[1] Sheo Nandan Paswan Vs. State of Bihar and others (1983) 1 SCC 438
[2] Code of Criminal Procedure 1973, S 258, 249, 256.
[3] S. Farman Ahmad Naqvi, ‘How Withdrawal from Prosecution Law is Misused in India, Understanding Section #21 of CrPC’, (Cjp org., 10 Mar 2018) <https://cjp.org.in/how-withdrawal-from-prosecution-law-is-misused-in-india/> accessed on 11 April 2020
[4] India today web desk, ‘Yogi Adityanath govt orders withdrawal of case against Yogi Adityanath’, (India Today, 27 December 2017) <https://www.indiatoday.in/india/story/yogi-adityanath-case-withdrawal-against-self-others-1116811-2017-12-27> accessed on 11 April 2020
[5] Times Now Digital, ‘Yogi Adityanath government seeks Withdrawal of 38 Criminal cases related to 2013 Muzaffarnagar riots’, (Times Now, 6 February 2019) <https://www.timesnownews.com/india/article/muzaffarnagar-riots-2013-news-yogi-adityanath-government-seeks-withdrawal-of-38-criminal-cases-related-to-2013-muzaffarnagar-riots-deaths/360826> accessed on 11 April 2020
[6] First Post Staff, ‘Yogi Aditya Nath Government Recommends Withdrawal of 38 criminal cases against over 100 accused in Muzaffarnagar Riots’, (First Post, 6 February 2019) <https://www.firstpost.com/india/yogi-adityanath-govt-recommends-withdrawal-of-38-criminal-cases-against-over-100-accused-in-muzaffarnagar-riots-6039781.html> accessed on 11 April 2020
[7] Aman Sharma, ‘Yogi /govt. Withdraws 75 cases related to Muzaffarnagar Riots’, (Economic Times, 25 July 2019) <https://economictimes.indiatimes.com/news/politics-and-nation/yogi-govt-withdraws-75-cases-related-to-muzaffarnagar-riots/articleshow/70372224.cms?from=mdr> accessed on 11 April 2020
[8] PTI (Press Trust of India), ‘UP Govt. cannot Withdraw Torror cases without Centre’s consent’, (Economic Times, 12 December 2013) <https://economictimes.indiatimes.com/news/politics-and-nation/up-govt-cannot-withdraw-terror-cases-without-centres-consent-hc/articleshow/27239658.cms?from=mdr> accessed on 11 April 2020
[9] Ranjan Agnihotri and Ors. Vs Union of India through Secretary of Ministry of Home Affairs and Ors [2013] Writ Petition No. 4683 (MB-PIL)
[10] ibid.
[11] Ram Narayan Yadav vs State of UP and Ors (Cri Misc. Writ Petition no. 10861/2015).