IN AN unprecedented move Government of Karnataka, filed an application for withdrawal of sixty-one criminal cases pending trial against ministers and other elected representatives.
The Government vide order dated August 31, 2020, decided to revoke their prosecution. The NGO, People Union for Civil Liberties, Karnataka challenged the same before the High Court. The court by its interim order dated 22.12.2020 put in abeyance the execution of the order of withdrawal. The High Court further ordered the State to file its statement of objections to petition by January 22, 2021.
The timely and just intervention of the High Court merits be commended in every possible term, and at the same time, the move of the State Government deserves to be condemned in the strongest possible terms. The bloodbath qua the prosecution’s withdrawal without any legally justified and tenable can hardly be sustained in a democratic setup governed by the Rule of law.
The bare reading of the section reveals in no uncertain terms that regarding the withdrawal u/s 321 Cr.P.C., the public prosecutor has a more significant role than the role of state Government.
The prosecutor’s bounden duty is to ensure that the withdrawal is not on the ground, extraneous to the interest of justice. The dominant consideration ought to be at the prosecutor’s end that the offences against the State must not go unpunished.
In its solemn wisdom, the legislature has further checked by the active involvement of the court seized with the trial. The same is evident from the section supra’s opening sentence that the withdrawal must have the consent of the Court. Thus the legislature has not given the absolute power/discretion to the prosecutor.
In the present days, unfortunately, the prosecutors who enjoy special status under the law have surrendered their position barring few. With notable exceptions, it would not be an exaggeration to put the prevailing situation that if the Government asks the prosecutors to walk, they don’t hesitate to crawl to score the brownie points or their appointment intact. Indeed and in all sum and reality, this is not a good trend and is not in tune with the established age-old convention of the public prosecutor’s role.
Undoubtedly state has been empowered under the providence of section 321 of the Code of Criminal Procedure to withdraw the prosecution. Still, it must be with the spirit of the law irrespective of compulsions. The use of powers in a mechanical fashion will send the wrong message to the society that the law is only for the person(s) other than the elected representatives.
Contrarily, the elected representative owes a great duty towards the law and the society than the average man. This salutary provision is not to be invoked for a song or any other consideration unrecognized by the law.
The misuse of law is rampant in the most prominent Republic of the world that the law has paled into insignificance, courtesy the protectors and enforcers of the law. Akin to the law of withdrawal (supra) is the law to commute the sentence by appropriate Government u/s 433 Cr.P.C. The commuting of the sentence u/s 433 Cr.P.C. was massively misused by the appropriate Government concerning commuting the sentence of affluent and other convicts holding power.
The legislature to contain misuse of the power u/s 433 Cr.P.C. was compelled to put the restrictions qua the sentence of life imprisonment. Resultantly, section 433-A was enacted, which restricted the appropriate Government‘s power to commute the life sentence to its whims and avarice.
“This section was added by the Criminal Law Amendment Act, 1978. The object of the section is to prescribe minimum imprisonment for 14 years for those who are convicted of an offence for which death is one of the punishments provided by law or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life.
The non obstante clause makes it clear that such minimum imprisonment is notwithstanding anything contained in section 432 which means that the power to suspend or remit sentence under that section cannot be exercised so as to reduce the imprisonment of a person convicted of such an offence or whose death sentence has been commuted to life imprisonment for less than 14 years. The language of this section is clear and unambiguous and does not call for extrinsic aid for its interpretation.
The effect of this section is to restrict the exercise of power under ss. 432 and 433 by the stipulation that the power will not be so exercised as would enable the two categories of convicts referred to in this section to freedom before they have completed 14 years of actual imprisonment. This is the legislative policy which is clearly discernible from the plain language of this section. Such prisoners constitute a single class and have, therefore, been subjected to the uniform requirement of suffering at least 14 years of internment.”
AIR (1991) SC 1792.
The appropriate Governments irrespective of their ideologies massively misused this provision of law. The wealthy and affluent politicians etc-etc were bestowed with the uncalled for favour under this law’s refuge. The life sentence was reduced to a sentence of five years or even less. All depended upon the status & stature of the convict. It invited scathing criticism from every upright quarter.
Resultantly the legislature was constrained to control the menace by enacting section 433-A. An embargo was placed that sentence of a life convict shall not be commuted by the appropriate Government irrespective of the circumstances, until the completion of actual incarceration of fourteen years. This provision was enacted by Act of 1978; with effect from 18.12.1978.
The Constitutional validity of the provision was challenged before the Supreme Court in ‘Maru Ram Vs. Union of India’ AIR (1980) Supreme Court 2147, but it didn’t succeed. The fear has now ingrained in everyone irrespective of their status or stature that once convicted for life, has to remain in jail for at least actual period of fourteen years.
The late eminent jurist and social judge, namely, Justice Krishna Iyer who authored the judgment of Maru Ram quoted in the introductory part, Oscar Wilde, The Ballad of Reading Gaol, the same reads thus:
“I know not whether Laws be right,
Or whether Laws be wrong,
All that we know who lie in gaol
Is that the wall is strong;
And that each day is like a year.”
The law is well settled beyond any cavil that the withdrawal of prosecution can be allowed only in the interest of justice. The legislature has put a caveat if Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect.
A pious duty is cast upon the courts to consider all relevant circumstances and determine whether the withdrawal of prosecution would advance the cause of justice. If the court concludes that the trial is likely to fail and the case’s continuance is bound to cause severe harassment, only the court may accede the prosecution’s withdrawal.
The discretion vested with the public prosecutor and the court under section 321 Code of Criminal Procedure is to be carefully exercised due to all the attending facts. It ought not to be exercised to smother the prosecution.
It has also been settled by the long line of uninterrupted judicial pronouncements having the force of Article 141 of India’s Constitution that every crime though inflicted upon the individual is viewed to be the crime against the society. The criminal should not go unpunished; this is the hallmark of our justice delivery system.
Now, lately, it has been said by the constitutional courts that those offences which are not compoundable under the provisions of law, can be compounded if the offence is personal and has no impact upon the society. While exercising the powers under section 321 it ought to be a predominant consideration.
There is a progressive deterioration in every walk of life and looking to the trend of the appropriate Government, the day is not far when the legislature would be compelled to bring the new enactment to control the menace of misuse of the powers of section 321, like section 433-A Cr.P.C. The laws enactors pay the least regard to the enacted law when the vested interest clash with it. It is a very sordid state of affair and cannot be accepted legally in a democratic setup.
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