The recent approval of Chief Minister Adityanath’s petition to withdraw 20,000 cases is reminiscent of similar events which transpired in 1979. During this time, the Magistrate Court in Bihar took cognizance of two vigilance cases against Dr. Jagannath Mishra in case of Sheo Nandan Paswan (1987). Lucky for Mishra, prior to the pronouncement of the judgement, a change in government resulted in his appointment as Chief Minister of the State. Upon such election, Mishra promptly instituted a suit to expedite the withdrawal of the cases filed against him. The existing panel of prosecutors on the case were removed and the inspector-general who had refused to withdraw the case was superseded for a promotion. Justice Tulzapur, in a dissenting Supreme Court judgment, noted the judicial oversight and lack of reasoning given by the Lower Court in overlooking the documentary evidence which in fact established a prima facie case against Mishra.
The question now stands – How was such abuse of power permitted in law?
Under section 321 of the Code of Criminal Procedure, 1973, the State can request the public prosecutor to withdraw a case, with the consent of the Court. The section mandates that the public prosecutor act not as a servant of the political executive, but as a guardian of public justice and thus exercise his discretion in deciding which cases to withdraw. This power of discretion is unfortunately limited by a gross misuse of executive power since the State under section 24 of the Code, wields the power to appoint public prosecutors.
This threat of arbitrary removal influences the decision making of public prosecutors, often making them puppets in the hands of powerful Executives. The effects of such political pressure can be witnessed in a Madras Trial Court case which permitted the prosecutor to withdraw a criminal case at the instance of the Tamil Nadu government. However, when another party came to power, the prosecutor switched sides and attempted to relaunch the case creating uncertainty in the finality of proceedings under this section. Even the Supreme Court was recently forced to strike down the appointment of Public Prosecutor Bhavani Singh upon sensing foul play by the Karnataka government in the Jayalalithaa wealth case.
This provision was enacted in public interest to secure societal order in cases of mass agitations, regional disputes, communal riots, or other cases involving a surcharge of violence. In some cases, the withdrawal of cases against government officials is justified if law and order problems are foreseeable upon his prosecution. The problem lies in situations where these laws are flouted to protect corrupt bureaucrats. The provision under section 321 was established as a method of double safeguards since the prosecutor’s power to exercise this option is subject to judicial supervision, forcing both parties to apply their mind independently. However, this law is often flouted by Courts highlighting the profound judicial perversion existent today, of which the Sheo Nandan Paswan case presents only one such instance.
Upon Chief Minister Yogi Adityanath’s recent election in Uttar Pradesh, he petitioned to withdraw 20,000 cases against him and other State executives including those involved in the 2013 Muzaffarnagar riots in which over 60 people lost their lives and over 40,000 were displaced. In the 2005 Pune riots, Shiv Sena got the case against its members for allegedly inciting 200 to 300 workers to burn down public buses withdrawn under the veil of such cases being ‘politically charged’. In 2017, the Judicial Magistrate, allowed the application stating, “The government has taken a policy decision for social harmony in the society”, whereas in 2015, another Judicial Magistrate had denied the withdrawal since “the case was of criminal conspiracy for wantonly giving provocation with intent to cause riot.” The Karnataka’s Siddaramaiah government is also allegedly using this medium to secure the vote-bank wherein with two months to elections, it is attempting to withdraw all cases against only the minorities involved in riots, while the rest bear the brunt.
States such as Uttar Pradesh, Maharashtra, and Bihar, in a move to increase their discretionary power, have amended this section, removing the requirement that the government consult the High Court in appointing Public Prosecutors and Additional Public Prosecutors under sub-clauses 1 and 6 of section 24. The 197th Law Commission Report (2006) thus suggested changes in this legislation ensuring unbiased appointments. 50 per cent of posts of Additional Public Prosecutor, must be filled from a panel prepared by a State Level Committee assessing the merit, experience, and previous record of performance of the Prosecutors and the remaining 50 per cent posts are to be filled by the regular cadre as assembled by the District Magistrate in consultation with the Sessions judge. It was further suggested that the sub-sections be legislatively restored to override various State Amendments.
To protect the legislative process, the crucial process of judicial appointments must therefore be politically neutral such as in countries like Italy, Ireland, and Australia which have independent prosecutors as arms of the judiciary. As in America, upon misconduct, the prosecutor should be subject to disciplinary proceedings per United Nations Congress Guidelines on the Role of Prosecutors (1990) and removed accordingly. Instructions given by non-prosecutorial authorities to prosecutors should also be subject to established guidelines.
Often, the Supreme Court only considers the question of ‘independent application of mind’ and ignores documentary evidence. Highlighting this fact, the minority judgement in the Sheo Nandan Paswan case stated that “discretion is not to be exercised technically and consent applied for has not to be granted as matter of formality… the paramount consideration must be the requirement of justice”. The court, increasing its intervention, must interpret ‘Consent of Court’ under section 321 not as supervisory but adjudicatory consent. Further, section 321 can include the words ‘in public interest and interest of justice’ to expand interpretative powers of the Courts in ensuring a lack of misuse. Currently, there are no restrictions on the State on the number of times it may petition for withdrawal, creating several repeated requests, negatively impacting judicial efficiency. A limit must thus be set of the number of petitions permitted on the same case.
Finally, the decision in the Sheo Nandan Paswan case, holding for Mishra, rightly received widespread criticism wherein the Petitioner in the suit seemingly unsurprised by the verdict stated that the true loss of judgement had been borne by the judiciary itself. One cannot help but note the truth in Paswan’s statement. Cases such as these have set a dangerous precedent, teaching executives that judicial outcomes can be shaped by political pressures and promises. In an absence of strict corrective measures, the adjudication of political matters will be tainted as being indirectly adjudicated, shaped by burdens outside the courtroom, instilling in a cynicism towards about the administration of law and criminal justice.