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 judgement 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?

How many or how few can resist the command of the politician in power?

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 Cases are withdrawn on the change of government.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 Jan 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 Feb 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 Jan 10. The officers’ note followed on Jan 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 Yogi 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. But he was a political novice, as most lawyers are with ambition exceeding capacity.

As attorney general, 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 Aug 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.

The writer is an author and a lawyer based Mumbai.

Published in Dawn, February 9th, 2019