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STRAIGHT LINE

The concern over withdrawal of criminal cases
A leading English newspaper has editorially commented that the recent political withdrawal of cases
is a dent in law and morality. The editorial, interestingly, observes that "the ruling party Awami League, of course, has followed in the footsteps of the BNP-led four party alliance governments between 2001 and 2006, when cases against 73,000 individuals were lifted.” It bemoans that for all our concern for rule of law being applied in the country over the years, it has been precisely the opposite that has happened with successive governments.
As the above matter involves both the executive and the judiciary with respect to a serious subject of public importance, it is perhaps proper to look into it in its entirety. There is a view that the initiative for withdrawal is that of the public prosecutor and what the court has to do is only to give its consent and not to determine any matter judicially. Still others hold the view that the withdrawal is an executive and not a judicial act.
It may be said that to the public prosecutor is entrusted discretion to withdraw from the prosecution with consent of the court, and his withdrawal puts an end to the case. The law gives him discretion in the matter. In the eyes of the law and of the court the discretion is his alone, subject to the consent of the court. The public prosecutor holds a very honourable and responsible office.
One needs to note that as the legislature has not defined the circumstances under which a withdrawal is permissible no hard and fast rule can be laid down circumscribing the limits within which a withdrawal may be made. The relevant section of the law for withdrawal (Sec 494 of the Criminal Procedure Code) contemplated action to be taken upon circumstances extraneous to the record of the case; for example, inexpediency of prosecution for reasons of state, necessity to drop the case on grounds
of public policy, credible information reaching the government as to the falsity of the evidence, etc.
It should be noted that it is the court which takes the responsibility of deciding whether a charge should be allowed to be withdrawn or not. Similarly, the reason of public policy, however learned and however high sounding, is often an improper reason for the withdrawal of any case. In the same vein the phrases "in the interest of administration" and "public policy" are at times irrelevant insofar as the withdrawal of cases is concerned.
The function of the court in granting its consent may well be taken to be a judicial function, which must be exercised with judicial discretion. However, it does not follow that the discretion is to be exercised only with reference to materials gathered
by the judicial method. The consent, referred to above, means a consent freely given by a free and independent judge. The reasons for withdrawal must satisfy the judicial conscience of the court and that it is not enough that the government has been "pleased to sanction" withdrawal.
The court in coming to a decision as to whether it would give consent should not take into consideration any extraneous circumstance; it is entitled to ask from the public prosecutor the reasons for his withdrawal in order to enable it to give its consent after judicial consideration of the circumstances. That the district magistrate instructed the public prosecutor to apply for withdrawal is not a reason for a magistrate to give his consent to such withdrawal.
There is a considered opinion that the magistrate must not surrender his
authority to the district magistrate but must act judicially and come to his own independent conclusion as to whether withdrawal ought to be permitted or not upon consideration of all the relevant circumstances. When a court gives its consent to a withdrawal from the prosecution, the order passed is judicial order and the court should record its reasons in order that the High Court may be in a position to say whether the discretion vested in the court has been properly exercised.
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 claims by responsible quarters that the 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.
The socio-political situation turned for the worse with the tragic assassination of Bangabandhu 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 south-western and north-western parts of the country.
Withdrawal from criminal prosecutions during the period from 1991 to present times on not very cogent grounds has taken place despite the democratic credentials of the relevant political regimes. The cases of withdrawal from criminal prosecution on political grounds are getting larger with the passage of each political regime. Whether such increase is directly co-related to the heightened criminalisation of our politics may be examined by those interested to see a cleaner polity.
It needs to be remembered that the functionary designated 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 are served.
The crux of the subject is primarily rooted in our political culture. Our politicians need to ensure their public image and social acceptability by clearly distancing themselves from patently criminal activities. The citizens should know whether political opponents should continue to be harassed by the institution of palpably false cases and whether shady elements should be allowed to masquerade as party operatives. The politicians have to take the lead in the gradual decriminalisation of the political process and ensure its sanitisation.
Muhammad Nurul Huda is a columnist for The Daily Star.