The power to withdraw a case: Vested with state govt, subject to court approval

What is it that gives a state government such powers to withdraw cases in matters of such serious nature?

Written by Deeptiman Tiwary | New Delhi | Updated: April 12, 2018 8:53:03 am
yogi adityanath, case against yogi adityanath, bjp, uttar pradesh, up criminal law amendment bill, up assembly, up news, indian express In UP, through an amendment, permission of the state government for withdrawal of cases has been made mandatory. (Representational Image`)

In December 2017, the Yogi Adityanath government in Uttar Pradesh asked its public prosecutor to withdraw criminal cases against Yogi. Amid the debate this sparked, the CM announced that the government would soon bring a bill to withdraw 20,000 cases against politicians. And even as questions are being raised over the government’s recent decision to withdraw 131 cases relating to the 2013 Muzaffarnagar riots, the state has decided to withdraw a case of alleged rape against former Union minister Swamy Chinmayanand.

What is it that gives a state government such powers to withdraw cases in matters of such serious nature?

The power to withdraw criminal cases against individuals or entities is enshrined in law and vested with the state government through its public prosecutor. It is based on the principle that since every crime is a crime against the state, the state has the responsibility to prosecute and ensure punishment for the criminal. By the same reckoning, the state must have the power to withdraw cases in public interest.

Read | Yogi govt issues order to scrap case against Yogi Adityanath

What the law says

The power to withdraw criminal cases is vested with the public prosecutor or assistant public prosecutor under Section 321 of the CrPC. According to the statute, at any stage before the judgment, the prosecutor can decide to withdraw prosecution against one or all offenders in a case under one or all offences. If such an application is made before the chargesheet is filed, it would lead to discharge. In case the chargesheet is filed, it would lead to acquittal of the accused.

In UP, through an amendment, permission of the state government for withdrawal of cases has been made mandatory.

In cases where the matter relates to the executive powers of the Centre, or comes under the Delhi Special Police Establishment Act, or is related to damage of central government property, permission from the Union is needed.

The withdrawal of cases, however, is subject to the court giving its consent.

The grounds for withdrawal

Section 321 is silent on the grounds on which the state government or public prosecutor can push for withdrawal. However, successive judgments by the Supreme Court and various high courts have held that it cannot be whimsical or arbitrary, and must be guided by public interest and furtherance of justice.

According to Haridwar CJM Ashutosh Kumar Misra, “The object of Section 321 CrPC appears to reserve power with the executive government to withdraw any criminal case on longer grounds of public policy such as inexpediency of prosecutions for reasons of state, broader public interest like maintenance of law and order, maintenance of public peace and harmony, changed social, economic and political situation.”

It has also been argued by legal experts that the spirit of the law says that the case must be withdrawn only if the prosecution is convinced that the trial is going to end in acquittal and pursuing the case would be of no purpose.

What the courts ruled

In a judgment on the matter February 20 this year, a three-judge bench of Allahabad High Court held, “The power of withdrawal can be invoked by the Public Prosecutor/Assistant Public Prosecutor, In-charge of the case when same is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law.”

In Rahul Agarwal versus Rakesh Jain in 2005, the Supreme Court observed, “Even if the government directs the public prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution.”

Challenge after withdrawal

Various court judgments, including from the Supreme Court, have held that even after a case has been withdrawn by a state government and received the consent of the court concerned, it can be challenged for a judicial review under Article 226 of the Constitution.

Courts have also held that besides the victim, even a third party can intervene and challenge the withdrawal of the case since a crime is committed against the society. Courts have held that every member of the society has the locus standi to oppose or challenge withdrawal in a criminal case, particularly in case of corruption and criminal breach of trust or cheating.

Precedents

While it has not become a norm for governments to withdraw a case, there have been a number of precedents. In 2013, the Samajwadi Party had withdrawn the prosecution against 19 accused in various cases of terrorism. The decision was shot down by the Lucknow Bench of Allahabad High Court. Recently, the Haryana government announced its decision to withdraw cases relating to violence during the Jat agitation of February, 2016.

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