With­drawal of crim­i­nal cases must be kept free of pol­i­tics

Deccan Chronicle - - Edit - By ar­range­ment with Dawn A.G. Noorani

Gov­ern­ments have a wrong no­tion about their power to with­draw a crim­i­nal case pend­ing in a court of law. The power was given in the Crim­i­nal Pro­ce­dure Code en­acted by a colo­nial govern­ment in 1898. It was re­tained in the code re­vised in In­dia in 1973 with a few changes.

Sec­tion 321 em­pow­ers the pub­lic pros­e­cu­tor in charge of a case “to with­draw from the prose­cu­tion of any per­son” be­fore the judg­ment is pro­nounced. But it is sub­ject to a con­di­tion laid down in the code it­self. The with­drawal must be “with the consent of the court”.

This con­di­tion it­self im­plies that it is the duty of the court to see that the with­drawal is to meet the ends of jus­tice and not for an im­proper rea­son, for ex­am­ple, po­lit­i­cal ex­pe­di­ency. Sec­tion 321 ad­vis­edly con­fers the power on the pub­lic pros­e­cu­tor and not the state govern­ment, as many other pro­vi­sions of the code do. There is good rea­son for this. It is to em­pha­sise that the dis­cre­tion be­longs en­tirely to the pub­lic pros­e­cu­tor, as a lawyer who is an of­fi­cer of the court.

The code pro­vides for the ap­point­ment of a pub­lic pros­e­cu­tor by the state or cen­tral govern­ment “af­ter con­sul­ta­tion with the high court”. The only qual­i­fi­ca­tion pre­scribed is prac­tice as an ad­vo­cate for not less than seven years. There is no se­cu­rity of ten­ure. Their salaries are low. How many or how few can re­sist the com­mand of the politi­cian in power as home min­is­ter or chief min­is­ter?

The Supreme Court laid down the law in a series of cases on the in­de­pen­dence of the pros­e­cu­tor. He must ap­ply an in­de­pen­dent mind. He acts as a limb of the ju­di­ciary, not the ex­ec­u­tive. But the news­pa­pers tell a dif­fer­ent story. Cases are with­drawn on the change of govern­ment.

What was re­ported on Jan­uary 28 is typ­i­cal of the ac­tual prac­tice. “The Ut­tar Pradesh govern­ment has de­cided to with­draw 18 cases re­lated to the Muzaf­far­na­gar ri­ots and asked the dis­trict au­thor­i­ties to ap­proach the court. UP’s spe­cial sec­re­tary of law J.J. Singh has di­rected Muzaf­far­na­gar dis­trict mag­is­trate... to with­draw the cases.” On this di­rec­tive from Luc­know, the dis­trict au­thor­i­ties be­gan to pre­pare them­selves to ask the court for per­mis­sion to with­draw the cases. The cases were filed un­der sec­tions con­cerned of the In­dian Pe­nal Code in­clud­ing

147 (ri­ot­ing), 148 (ri­ot­ing, armed with deadly weapon) and 397 (at­tempt to cause death).

The in­struc­tions came af­ter the state govern­ment sought de­tails of

125 cases linked to the 2013 Muzaf­far­na­gar ri­ots. Ad­di­tional dis­trict mag­is­trate Amit Ku­mar said that the state govern­ment had wanted more in­for­ma­tion to re­view the pos­si­bil­ity of with­draw­ing the 125 cases in courts.

Sev­eral lead­ers of the rul­ing BJP were named in these 125 cases. Com­mu­nal clashes in Muzaf­far­na­gar and the ad­join­ing ar­eas in the sec­ond half of 2013 had claimed 60 lives and dis­placed more than 40,000 peo­ple most of them Mus­lim, need­less to add. The state govern­ment is headed by one Yogi Adityanath.

The news­pa­pers of Fe­bru­ary 5 re­ported how the process be­gan from the ex­ec­u­tive. A note was pre­pared by the spe­cial sec­re­tary and un­der­sec­re­tary and sent di­rectly to the dis­trict mag­is­trate a week ear­lier. It con­cerned 38 crim­i­nal cases in­volv­ing 100 ac­cused. They were charged with da­coity, use of fire and ex­plo­sive sub­stances, de­fil­ing of “place of wor­ship” (read, mosques) and out­rag­ing re­li­gious feel­ings.

To clinch the is­sue, it is re­ported that it was the state govern­ment that first gave its sanc­tion on Jan­uary 10. The of­fi­cers’ note fol­lowed on Jan­uary 29. BJP MPs were press­ing the Yogi for the with­drawal. That the gover­nor, Ram Naik, con­sented is as ir­rel­e­vant as it is re­veal­ing. He is a ra­bid com­mu­nal­ist. The consent is nei­ther for him nor the chief min­is­ter to give. The de­ci­sion be­longs in law ex­clu­sively to the pub­lic pros­e­cu­tor.

The law is based on English law which con­fers dis­cre­tion on the at­tor­ney gen­eral. The first Labour govern­ment fell in 1924 be­cause it with­drew a prose­cu­tion for po­lit­i­cal rea­sons. The at­tor­ney gen­eral was the leg­endary Sir Pa­trick Hast­ings, one of the fore­most ad­vo­cates of the day. Sir Pa­trick had au­tho­rised the prose­cu­tion of J.R. Camp­bell, act­ing ed­i­tor of a com­mu­nist weekly for se­duc­ing the “armed forces from their al­le­giance to the Crown”. Some days later, the prose­cu­tion was with­drawn giv­ing rise to sus­pi­cion of po­lit­i­cal in­flu­ence.

A cabi­net recorded a de­ci­sion of Au­gust 6, 1924. It read: “[N]o pub­lic prose­cu­tion of a po­lit­i­cal char­ac­ter should be un­der­taken with­out the prior sanc­tion of the cabi­net also be­ing ob­tained.” The cabi­net en­dorsed Sir Pa­trick’s de­ci­sion. In 1931, the minute was re­scinded. The law was set right: In In­dia it awaits that.

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