Withdrawal of Cases
Where is the end?

Dr. Sarkar Ali Akkas
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Prof. Henry Sidgwick says: "In determining a nation's rank in political civilisation, no test is more effective than the degree in which justice as defined by the law is actually realised in its judicial administration." Blackstone writes, "Justice is not derived from the king as his free gift but he is the steward of the public to dispense it to whom it is due."

It is universally recognised that one of the most essential functions of a state is the administration of justice. In criminal proceedings, the state itself is a party and is responsible for the prosecution of the offence.

In modern countries, there is a public prosecution system to prosecute offenders. The prosecution system may vary from country to country, but it exerts a lot of authority to initiate and withdraw prosecution. In most jurisdictions, initiation of a criminal case is a regular course of action taken by the Public Prosecutor for ensuring the administration of justice, but withdrawal from prosecution is perhaps always an exception.

Sometimes, withdrawal of a criminal case may be a matter of public concern particularly if it is done without lawful or reasonable grounds.

In Bangladesh, withdrawal of criminal cases has become a matter of great public debate since 2001. After BNP-led alliance was voted to the power in 2001, reportedly it withdrew around 5,888 cases to release around 73,541 persons having been politically affiliated with the BNP and its allies. At the same time names of party supporters, who were accused in around 945 criminal cases, were also withdrawn by the government. Similarly, the present government has taken steps to release large numbers of accused persons by executive action on the basis that these cases are fabricated due to political reasons. Such practice is not consistent with the concept of rule of law and of the independence of the judiciary.

It is to be noted that section 494 of the Code of Criminal Procedure 1898 [CrPC] empowers the public prosecutor to withdraw name of any accused from prosecution. Under this section, any public prosecutor may, with the consent of the court, before the judgment is pronounced, withdraw from the prosecution any person either generally or in respect of any one or more of the offences for which he or she is tried. Thus the public prosecutor is invested with a general executive power to withdraw from prosecution subject to the court's consent, which may be determined on many possible grounds. The law gives the prosecutor a real discretion in the matter. In a case of withdrawal from prosecution, if the prosecutor takes a fair and independent step to withdraw a case then the court should accept this and permit withdrawal under section 494 of CrPC. However, the prosecutor must satisfy the court with regard to the reasons and circumstances justifying the withdrawal from prosecution.

There is no indication in section 494 of CrPC in respect of the grounds on which public prosecutors may make the application, or the consideration on which the court is to give the consent to withdraw a case. However, given the provisions of section 494, it can be said that the power of withdrawal of cases must be exercised in the interest of the administration of justice. The reasons for withdrawal must satisfy the judicial conscience of the court, and mere government's order directing withdrawal without valid ground is not enough to pass an order of withdrawal by the court.

Section 494 of CrPC makes it clear that if the court does not give his consent, the withdrawal of the public prosecutor from the prosecution has no legal effect and the case has to proceed whether or not the public prosecutor wants to proceed with it. It is the court which takes the responsibility of deciding whether a charge should be allowed to be withdrawn or not. The court is required to exercise judicially the function of according consent for withdrawal of any accused from prosecution and the consent should not be given mechanically. Consent should be given by the trying court in exercise of its judicial discretion based on reasonable grounds. Before granting consent, it is a duty of the court to see that the withdrawal is not sought on grounds extraneous to the interest of justice. The court should also take into account that offences against the state must not go unpunished merely because the government as a matter of general policy or expediency directs the public prosecutor to withdraw from the prosecution.

The prosecutor has to make out some grounds, which would show that the prosecution is sought to be withdrawn. A criminal case is supposed to be filed only when there is a likelihood of a successful prosecution. Thus, in principle, there can be no grounds for withdrawal. However, the prosecution might not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well-founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution, or a settlement arrived at in court or in a manner acceptable in law may be the grounds for withdrawal.

Since putting an individual to trial is a very serious matter for that person, withdrawal from prosecution must be considered thoroughly and carefully before it is done. The public prosecutor owes serious explanations if they are to withdraw a prosecution. Being an officer of the court, a prosecutor is entrusted to represent the public interest and as such he or she is supposed to lead evidence favourable to the accused for the benefit of the court. It is beyond doubt that this function of the public prosecutor relates to a public purpose entrusting the officer with the responsibility of so acting only in the interest of administration of justice.

In the case of Shamsul Alam vs State [(1995) 47 DLR 476], the High Court Division held that withdrawal on consideration of any cogent ground or materials is not only illegal but contrary to the well established principles of criminal justice and liable to be quashed. In Altab Hossain vs Kobed Ali [(1997) 49 DLR 589] it was disclosed that the Magistrate accorded permission for withdrawal simply on the ground that the government had instructed the Deputy Commissioner concerned for taking steps for withdrawal of the case. The High Court Division held that such mechanical order of withdrawal of the case is contrary to the provision of s 494 of the Code and then directed the magistrate to proceed with the case in accordance with law.

The difficulties arise because of appointment of public prosecutors on the basis of political affiliations. Appointment to such vital offices should not be allowed on the basis of political party preferences. But even today, government distribute these offices among their sympathisers. And after assuming office many incumbents feel that they need to look after the interests of the ruling party.

Neither section 494 of CrPC nor the judicial interpretation of the Supreme Court indicates that a criminal charge may be withdrawn for political reasons or on the ground that the case was filed for political harassment. Nevertheless, the cases of withdrawal from criminal prosecution on political grounds are getting quite numerous with the passage of each political regime. However, for the sake of rule of law and fair administration of justice, instead of continuing the practice of withdrawal of cases by executive action the government should take measures for ensuring that nobody can institute a criminal case only for political reasons or for harassing the political opponents. For the purpose of doing so, the following matters should be taken into consideration:

Firstly, an independent body for conducting criminal investigation must be the first step towards the carrying out of prosecutions. An independent criminal investigation body is perhaps the best way to ensure that cases filed for political harassment will be ended at the earliest stage and there will be no necessity to withdraw a case. Therefore, an independent criminal investigation body should be established immediately.

Secondly, public prosecutors must not be appointed on the basis of political consideration or affiliation. An independent prosecution system is the demand of the time and if such a system can be introduced there will be no question of filing cases for political harassment. As a result, formation of committee for reviewing the criminal cases filed for political harassment will not be needed in future for any future government.

It is to be noted that fairness, efficiency and accountability are three important objectives of a prosecution system and these objectives can be achieved by an independent system of prosecution. For that purpose we need properly empowered and independent Public Prosecutors, who may bring proceedings free from political pressure or other inappropriate influences. Therefore, the appointment and removal process must not expose the public prosecutors to political pressure or arbitrary decisions. Moreover, the decisions of the public prosecutors must be free from interference and be based on transparent and professional standards.
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Professor Sarkar Ali Akkas, Chairman, Department of Law, Jagannath University, Dhaka.

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