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The withdrawal-revival syndrome

The politicians have to decide whether they need rogue and criminal elements in furthering their so-called political objective even at the expense of their public image and social acceptability. The citizens should know whether political opponents should continue to be harassed by institution of palpably false cases and whether purely criminal elements should be allowed to masquerade as party operatives.

Muhammad Nurul Huda
The Daily Star in a report on February 10 informs us on the authority of the Home Minister that around 6000 cases were withdrawn during the tenure of the immediate past BNP-Jammat led government. It was also reported that a five-member committee headed by the law Minister would review these cases. Such criminal cases were reportedly withdrawn on the directives of Home Ministry and names of more than 3000 1 accused persons were withdrawn from 945 other cases.
There are apprehensions to suppose that many cases cited above were withdrawn on political grounds and as such ends of justice have not been met. Additionally, many cases were allegedly lodged to settle political score or simply as an act of retribution against a political opponent. Either way, the whole scenario appears deplorable and points to the harmful political polarisation of our society.
It may be pertinent to point out that regarding withdrawal from criminal prosecution, section 494 of 'The Code of Criminal Procedure says "Any public prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from prosecution of any person (either generally or in respect
of any one or more of the offences for which he is tried); and upon such withdrawal,
• If it is made before a charge has been framed, the accused shall be discharged [in respect of such offence or offences].
• If it is made after a charge has been framed, or when under this code no c h a r g e is required, he shall be acquitted [in respect of such offence or offences]. The above two legal positions have been mentioned to inform that the government retains authority to exempt accused persons from criminal prosecution at different stages of trial and also show mercy to the convicted following the conclusion of trial. The number of cases that have been withdrawn do cause concern. This writer does not have the benefit of officially published statistics in this regard. One has to primarily depend on the newspaper reports.
In the not-too-distant past the main opposition political party alleged that 70,000 criminals were let off by the government as a matter of political expediency while the then ruling party stalwarts said that a large number of their party workers were falsely implicated in criminal cases due to political vengeance and that the authority has taken remedial action after proper examination and
scrutiny.
Readers would surely appreciate the complexity and sensitivity of the matter in the background of our political and bureaucratic culture. This is more so in the light of claim by responsible quarters that criminalisation of our politics is of unhealthy proportion rendering it extremely difficult to differentiate a purely political act from a criminal act. If one ventures into the history of our socio-political progression since 1972 down to contemporary times one would come across many incidents of criminal nature which were at times committed with political motives by persons of supposedly political identity.
In the period immediately following liberation, quite a number of sensational criminal cases were withdrawn on alleged political grounds. Many deaths caused by the then special forces were not even investigated and murderous actions by politically blessed vigilante groups were not taken note of. Those were uncertain and less than stable times and one could appreci-
ate the mitigating circumstances.
The situation turned for the worse with the tragic murder of the father of the nation and four national leaders. For many years these offences were not legally and appropriately treated by the establishment till a favourable political scene unfolded. Such realities do have substantial impact on the enforcement and adjudication temperament and culture. Between 1976 - 1979 many heinous criminal cases involving murder, abduction, grievous hurt, amongst others, were allegedly withdrawn as part of a deal struck with some political parties by the then establishment. The so-called cadres of these parties created havoc in the southwestern and north-western part of the country.
One can see from the above process that many criminals acquired respectability as political elements that the hapless police were unsuccessfully chasing for a long time. Matters like this send very confusing signals to the enforcement units primarily
and also significantly affect the judicial authorities.
Without doubt they have demoralising effect on the conscientious officials who fail to understand the propriety of the so-called dynamics of electoral adjustment and understanding.
Withdrawal from criminal prosecutions during the period from 1991 to present times on not very cogent grounds have taken place despite the democratic credentials of the relevant political regimes. The cases of withdrawal from criminal prosecution on political grounds are getting quite large with passage of each political regime.
Newspaper reports indicate that the volume of such withdrawals have registered sharp increase in recent years. Those interested to see a cleaner polity may examine whether such increase is directly co-related to the heightened criminalization of our politics.
It needs to be reminded that the functionary clothed by the criminal procedure
code with the power to withdraw from the prosecution is the public prosecutor. It is for him to apply an independent mind and exercise his discretion. In doing so he acts as a limb of the judicative process and not as an extension of the Executive.
Although the withdrawal from prosecution is an executive function of the Public Prosecutor it has to be remembered that under the Criminal Procedure Code the prosecution of an offender for a serious offence is primarily the responsibility of the Executive. The Public Prosecutor's discretion cannot be surrendered to anyone and he should ensure that the broad ends of justice, public order and peace arc served.
In respect of the above, it is for the court to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to
withdrawal from the prosecution.
It shall be the duty of both public prosecutor and court to protect the administration of justice against possible abuse or misuse by the Executive by resort to provisions of section 494. In sum. the sole consideration for the Public Prosecutor when he decides to withdraw from a prosecution is the larger factdr of the administra -tion of justice -- not political favours nor party pressures nor similar concerns.
In view of the observations in the paragraphs hereinbefore, one has to judge if our Public Prosecutors and concerned courts are doing their due in so far as it relates to the withdrawal from criminal prosecution. One needs to know if the executive organ of state is rendering desired assistance in furthering administration of justice and more specifically whether it is making serious efforts to prosecute the major offenders.
It also needs to be examined by competent authority whether in consenting to withdrawal from criminal prosecution the courts have taken sufficient precaution to prevent executive abuse and misuse and undesirable political favours from taking place.
Under section 492 of the code of Criminal Procedure, "The Government may appoint generally, or in any
case or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors." Knowledgeable quarters are of the opinion that a large part of such appointments by the government are predominantly politically motivated and that party faithful are mostly blessed with such appointments with merit, ability and integrity taking a backseat.
Under such circumstances, the protection of interest of the administration of justice, free from political pressures becomes a very difficult and embarrassingjob.
The crux of the subject is primarily rooted in our political culture. The politicians have to decide whether they need rogue and criminal elements in furthering their so-called political objective even at the expense of their public image and social acceptability. The citizens should know whether political opponents should continue to be harassed by institution of palpably false cases and whether purely criminal elements should be allowed to masquerade as party operatives. The politicians should take the lead in gradual decriminalisation of the political process and ensure its sanitisation.
Muhammad Nurul Huda is a columnist of The Daily Star.