Sections 321 of the Criminal Procedure Code (Cr.P.C.) allows the Public Prosecutor or Assistant Public Prosecutor in charge of a case, with the consent of the court, withdraw from the prosecution of any person, at any time before the judgment is pronounced. Such withdrawal from prosecution would be considered as discharge or acquittal, depending on the stage of the case, i.e., whether charge has been framed or not.
It is not laid down in Section 321 of Cr.P.C. as to for which reasons, a case can be withdrawn by the public prosecutor. It is a very widely worded provision.
The relevant issue for the purposes of this article is – whether a criminal case can be withdrawn from prosecution under the above section, for political reasons?
This issue arose before the Supreme Court in the case of Rajender Kumar Jain v. State, (1980) 3 SCC 435 : 1980 Cri LJ 1084 : AIR 1980 SC 1510. In this case, in one of the matters being heard together, the previous Government of India (headed by Mrs. Indira Gandhi) had sanctioned prosecution and had charged George Fernandes (Chairman of Socialist Party of India and Chairman of All India Railwaymen’s Federation) and 24 others for alleged offences under Sections 121-A and 121-B IPC read with Sections 4, 5 and 6 of the Explosive Substances Act and Sections 5(3)(b) and 12 of the Indian Explosives Act in the Court of Chief Metropolitan Magistrate.
However, meanwhile in the general elections that took place in 1977, a new party, namely Janata Party, came into power. In the changed political scenario, the Special Public Prosecutor filed an application in the court under Section 321 CrPC for permission to withdraw from the prosecution on the ground that in public interest and changed circumstances, the Central Government had desired to withdraw from the prosecution of all the accused.
On the same day the Chief Metropolitan Magistrate, expressing the opinion that it was “expedient to accord consent to withdraw from the prosecution”, granted his consent for withdrawal from the prosecution. So, the case stood closed and was allowed to be withdrawn from prosecution under Section 321.
This was challenged by the appellant in that case, an advocate Dr Rajender Kumar Jain. One of his arguments in the Supreme Court was that in the instant case the withdrawal from the prosecution was for a purely political purpose and not in the public interest at all. It was said that the case was withdrawn in order that George Fernandes could be appointed as a Minister in the Central Cabinet.
After analysing various previous judgments, the Supreme Court held that the Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but on other relevant grounds as well in order to further the broad ends of public justice, public order and peace. It was observed that the broad ends of public justice will certainly include appropriate social, economic and, political purposes.
The Supreme Court observed: “…paucity of evidence is not the only ground on which the public prosecutor may withdraw from the prosecution. In the past, we have often known how expedient and necessary it is in the public interest for the public prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest etc. Wherever issues involve the emotions and there is a surcharge of violence in the atmosphere it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter-productive. An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecution already launched. In such matters who but the Government can and should decide, in the first instance, whether it should be baneful or beneficial to launch or continue prosecutions. If the Government decides that it would be in the public interest to withdraw from prosecutions, how is the Government to go about this task?”
Regarding the issue relating to withdrawal from prosecution on the ground of the case being political offence, the Supreme Court observed as under:
“It is true that the Penal Code, 1860 and the Code of Criminal Procedure do not recognise offences of a political nature as a category of offences. They cannot, in the ordinary course of things. That does not mean that offences of a political character are unknown to jurisprudence or that Judges must exhibit such a naivette as to feign ignorance about them. Offences of a political character are well known in International law and the Law of Extradition. The Indian Extradition Act refers to offences of “a political character”. For our present purpose it is really unnecessary for us to enter into a discussion as to what are political offences except in a sketchy way. It is sufficient to say that politics are about Government and therefore, a political offence is one committed with the object of changing the Government of a State or inducing it to change its policy. Mahatma Gandhi, the father of the Nation, was convicted and jailed for offences against the municipal laws; so was his spiritual son and the first Prime Minister of our country; so was the present Prime Minister and so were the first President and the present President of India. No one would hesitate to say that the offences of which they were convicted were political.”
The Supreme Court went on to hold that:
“To say that an offence is of a political character is not to absolve the offender of the offence. But the question is, is it a valid ground for the Government to advise the Public Prosecutor to withdraw from the prosecution? We mentioned earlier that the Public Prosecutor may withdraw from the prosecution of a case not merely on the ground of paucity of evidence but also in order to further the broad ends of public justice and that such broad ends of public justice may well include appropriate social, economic and political purposes. It is now a matter of history that the motivating force of the party which was formed to fight the elections in 1977 was the same as the motivating force of the criminal conspiracy as alleged in the order sanctioning the prosecution; only the means were different. The party which came to power as a result of 1977 elections chose to interpret the result of the elections as a mandate of the people against the politics and the policy of the party led by Shrimati Gandhi. Subsequent events leading up to the 1980 elections which reversed the result of the 1977 elections may cast a doubt whether such interpretation was correct; only history can tell. But, if the Government of the day interpreted the result of the 1977 elections as a mandate of the people and on the basis of that interpretation the Government advised the Public Prosecutor to withdraw from the prosecution, one cannot say that the Public Prosecutor was activated by any improper motive in withdrawing from the prosecution nor can one say that the Magistrate failed to exercise the supervisory function vested in him in giving his consent.”
So, ultimately, the Supreme Court dismissed the appeal against the withdrawal from prosecution of the above case against George Fernandes and others.
It may thus be seen that it may be possible, in appropriate cases, to withdraw from prosecution a criminal case for reasons relatable to political reasons too. There is no bar against it. As held by the Supreme Court the purpose of withdrawal should basically be to further the broad ends of public justice.
