LAW Courses

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


Key Takeaways

  • The case of BJP leader Anisur Rahaman is in question whether the withdrawal of the criminal case is justified or not and if the order for revival is justified.
  • The case was referred to the Single-judge bench to consider after making the accused a party to the petition.
  • The legal precedents related to Section 321 have been discussed to understand the thought process of the Courts when a case for withdrawal is brought before them.
  • The withdrawal though has to be done for meeting the ends of justice, it is still in the hands of the Government and the Public Prosecutor has little to no power to go against the decision.

Introduction

There are numerous cases that are filed before courts on a daily basis. But there are only few cases which come to light as a result of it holding importance for the public and the legal fraternity. One such case can be seen in the High Court of Calcutta.

The appellant was a member of the Trinamool Congress who joined BJP in 2019. He was arrested on the charge of murder of Kurban Shah, on an FIR filed by the nephew of the deceased. He was charged under Section 302 of the Indian Penal Code along with other accused persons. Anisur Rahaman recently announced his alliance to TMC again. The State Government proposed for withdrawing the case instituted against him.

The nephew, Jahar Sha filed a Writ Petition against the proposal of Government. The petition was filed before a single – judge bench of the High Court of Calcutta.

Revival Proceedings

The Trial Court had accepted the withdrawal of the case when the single – judge bench decided the petition. The High Court observed that the accused had filed numerous bail applications which were opposed by the Public Prosecutor. Just when the case was about to reach the final point, the Public Prosecutor was instructed by the Governor to withdraw the case under Section 321 of the Code of Criminal Procedure.

The withdrawal should be done in good faith considering the material facts and the evidences. The withdrawal should be in the interest of the public and to meet the ends of justice. The Public Prosecutor has the power to exercise his discretion on the withdrawal instructions of the client.

The case was appealed before the present High Court. The Advocate General who was representing the State submitted that since the Trial Court has accepted the withdrawal application however the counsel for the petitioners contended that the quashing of the order of the Trial Court by the judge was a violation pf the principles of natural justice as the accused should have been made a party to the suit.

Observation by the Court

The case of Anisur Rahaman v. Jahar Sha and Ors was clubbed with two other cases of Afjal Ali Sha @ Abjal Shaukat Sha v. Anisur Rahamman and Ors and Dipak Mishra v. The State of West Bengal and Ors. The Court acceded to the fact that the principles of natural justice have been violated in the present case. The court stated that the accused who is getting benefit from the proposal of the state should be a party to the case. The instance of accused not being a party to the case violates the principle of audi alteram partem; the court accepted all the contentions of the petitioner but substantiated only one stating that they are not going to the merits of the case.

The Court remanded the matter back to the single judge bench directing it to consider the matter afresh. The court also directed the restoration of status quo which existed at the time of filing the petition.

Section 321 of the Code of Criminal Procedure

The Section 321 of CrPC deals with withdrawal from prosecution and lays down that the Public Prosecutor or the Asst. Public Prosecutor may withdraw the case before the judgement is announced given that the Court has given its permission for the same. The offence committed has to fall under the category that it was against the law relating to executive powers of the Union, destruction or damage to the Government property, When the accused has been in service of the government and such withdrawal has to be granted permission by the Government. Even though there are no specific grounds that have been stated for withdrawal, it is important from the judicial precedents that the withdrawal should be done for administering justice.

Sheo Nandan Paswan v. state of Biha and Ors.

This case revolved around the one time Chief Minister of Bihar who was prosecuted when he was not in power and the application for withdrawal was allowed. The Court in this case held that the Public Prosecutor has to provide reasons that he has applied his mind to the application for the withdrawal and is not working purely on the orders of the Government. He is bound to follow the advice of the Govt. or has to resign from the post. The only thing that the Court needs to look into is whether the Public Prosecutor has applied his mind or not and not go into the merits of the case. It has to be confined to the material before it. This case has been the backbone for many future cases with respect to revival proceedings in the Court and its validity.

Name Dasarath v. State of Andhra Pradesh

The appellant in this case was charged under Prevention of Corruption Act, 1988. The Government of Andhra Pradesh instructed the Public Prosecutor to withdraw the case. The Special Court dismissed the application and so did the High Court. The appellants thus approached the Supreme Court through a Special Leave Petition. The Court has to take into consideration all the materials that the Public Prosecutor has taken into consideration for filing of the withdrawal application and is not required to provide detailed reason for either allowing or dismissing the application. The Court allowed the appeal and referred the case back to the Trial Court for consideration.

Bairam Muralidhar v. State of Andhra Pradesh

The case revolves around the fact that the son of Ranga fell in love with their neighbor and they eloped. The father of the daughter filed an FIR and the son was caught and held in judicial custody. Ranga, who was working in Dubai, returned to India and when he approached the Police, the Investigating Officer demanded Rs. 6000 for reducing the charge against his son and not implicating him in the kidnapping case. He then approached the DSP and after proper procedure, the case was brought before the Court. The Public Prosecutor then filed an application for withdrawal of the case on the basis of good work done by the officer. The case was appealed before the Supreme Court after both the Trial and the High Courts had not accepted the application for withdrawal. The Supreme Court dismissed the appeal stating that there was no evidence to show that such withdrawal would advance the cause of public interest and justice.

Conclusion

Taking into consideration, the opinions of the judges in the case and those in precedents, it is to be understood that withdrawal of cases under Section 321 of CrPC is to be done keeping in mind the benefit of the public as the very motive of the legislation was to ensure justice has been served. The withdrawal cannot be iron clad but depending on the circumstances.

When the facts are considered, it is mostly the case that the Government uses its discretion in withdrawal and it is important that this not done keeping in mind the political benefits as in a democracy it is all about the people. And letting criminals roam around freely just because of their affiliation to the people in power is misuse of the power that the people have given the authorities.


"Loved reading this piece by SUSHREE SAHU?
Join LAWyersClubIndia's network for daily News Updates, Judgment Summaries, Articles, Forum Threads, Online Law Courses, and MUCH MORE!!"






Tags :


Category Others, Other Articles by - SUSHREE SAHU 



Comments


update
Post a Suggestion for LCI Team
Post a Legal Query