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Prosecutors not bound to heed Government order regarding withdrawal of cases

A division bench of the Karnataka High Court recently noted:
No Court is bound by such a decision taken to withdraw from the prosecution. The matter was heard while issuing notice to the respondents in PUCL v. State of Karnataka (W.P. 13781/2020).

A Cabinet order was passed by the Karnataka government on the 31st of August 2020 which directed that 61 pending cases against elected representatives of the Government be dropped. Parties to these suits include ministers of the State Government such as BC Patil, CT Ravi, Anand Singh and JC Madhuswamy. The People's Union for Civil Liberties in Karnataka filed a motion challenging the validity of this order. The petitioners contended that such an order was against the rule of law.

The Government order dated 31.08.2020 mentioned that permission was granted for withdrawal of 61 cases under S.321 of the CrPC. S.321 deals with withdrawal from prosecution by the Public Prosecutor, which results in dismissal of the charges or acquittal of the accused. The bench found that action under S.321 could only be taken with the Court's permission.
They looked into the Supreme Court's verdict in S.K. Shukla & Ors. v. State of UP, where it was held that:
Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The Government may suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so.

If the Government gives instructions to a Public Prosecutor to withdraw from the prosecution of a case, the latter after applying his mind to the facts of the case may either agree with instructions and file a petition stating grounds of withdrawal or disagree therewith having found a good case for prosecution and refuse to file the withdrawal petition.

The courts are also free to assess whether the prima face case is made or not. The court, if satisfied, can also reject the prayer.
The bench held that Courts were duty-bound in assessing whether a prima facie case exists, irrespective of any order to the contrary. However, they stated that they could not stay the order before the respondents had a chance to reply. Notice was taken on behalf of the State by the Additional Advocate General.

They also issued instructions to the State Government to forward copies of the court order to the Public Prosecutors who had been instructed to withdraw from prosecution in those 61 cases. The Prosecutors were to bring it to the notice of the Karnataka High Court when an application was made under S.321 CrPC.

Refusing withdrawal of prosecution from these cases would be a bold move towards a brighter future. The judiciary is supposed to be independent of the legislature and executive, but in recent times, the lines have begun to blur. In the present situation, Karnataka's own Law minister is a defendant in one of the cases that are to be withdrawn! The judiciary is seen as a pillar of democracy, and to win the trust of its citizens, the Court must take a proactive stance by putting justice first.

Written By: Prime Legal Law Firm
Off Address: 39/2, 2nd floor, K G Road, Bengaluru, Karnataka-560001
Phone no: +9986386002, Email: [email protected]

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