How Withdrawal from Prosecution Law is misused in India Understanding Sec 321 of CrPC

10, Mar 2018 | S. Farman Ahmad Naqvi

Sometimes the State agencies or the State itself fail to perform their role diligently and honestly without being influenced by any outside extraneous reasons. The attempt of withdrawal of criminal cases, by state government is due to the State using its unfettered powers to ask its agencies to withdraw criminal cases pending against its political followers. The provision granting this power to state flows from section 321 of Criminal Procedure Code 1973 with the only rider that the court had to pass order upon an application to withdraw a case pending before it.

Section 321 of CrPC 1973, deals with the power of Public Prosecutor/Assistant Public Prosecutor to withdraw case of which he is in-charge after obtaining written permission from the state government and that permission is required to be filed in Court. The power of withdrawal can be invoked by the Public Prosecutor/Assistant Public Prosecutor, in the interest of public policy and justice and not to frustrate or throttle the process of law.

The power under this section are again in the news, with governments of UP and Haryana recently trying to identify some cases to be withdrawn with an intent to make some political gains.

In Ranjana Agnihotri’s (2013 (11) ADJ 22) case, a full bench of Allahabad High Court considered four questions relating to interpretation of section 321 of Cr. P. C., referred to it. In pursuance of instructions issued by the State Government, the Public Prosecutors, In charge of those cases, moved applications for withdrawal from the prosecution of the accused in the said cases.

The petitioners preferred Writ Petition No. 4683 (MB-PIL) of 2013, thereby challenging vires of Section 321 of the Code of Criminal Procedure 1973 as well as the instructions issued by the State Government to the Public Prosecutors for withdrawal from the prosecution.

The questions, thus framed by the Division Bench, were:

1. Whether the State Government can issue Government Order for withdrawal of cases without there being any request by the public prosecutor in charge of the case?
2. Whether the prosecution can be withdrawn without assigning any reason as to why the prosecution was sought to be withdrawn and is therefore unconstitutional and violative of Article 14 of the Constitution of India?
3. Whether the prosecution of offence relating to Central Act be withdrawn without taking permission from the Central Government?
4. Whether the State Government after giving sanction for prosecution, review its own order by issuing orders for withdrawal of the cases?”

Before parting with the case, the full bench referred the following observation of Godwin in his book, “Political Justice” while appreciating the democratic process in governance:

Democracy restores to man consciousness of his value, teaches him by the removal of authority and oppression to listen only to the dictates of reason, gives him confidence to treat all other men as his fellow beings and induces him to regard them no longer as enemies against whom to be upon his guard, but as brethren whom it becomes him to assist.

The full bench answered the four questions framed by the Referral Court (Division Bench) as under:

1. The Government can issue an order or instruction for withdrawal from prosecution without there being request from the Public Prosecutor In charge of the case, subject to the rider that the Public Prosecutor shall apply his/her independent mind and record satisfaction before moving an application for withdrawal from prosecution.
2. The prosecution cannot be withdrawn without assigning reason, may be precisely. If an application is moved for withdrawal from prosecution in a case relating to terrorism and waging of war against the country, special and specific reason has to be assigned keeping in view the discussion, made in the body of judgment.
3. Prosecution under Central Acts where with regard to the offences, executive power of the Union extends, prosecution cannot be withdrawn without permission of the Central Government. For offences under Unlawful Activities (Prevention) Act, 1967, Explosive Substances Act, 1908 and Arms Act, 1959 etc and the offences falling in Chapter VI of Indian Penal Code or alike offences the executive power of the Union of India extends, hence permission from the Central Government with regard to withdrawal of prosecution under Section 321 Cr. P. C. shall be necessary.
4. State Government has got power to issue instruction or pass order even after sanction for prosecution has been given in a pending criminal case, subject to condition that the Prosecuting Officer has to take independent decision with due satisfaction in accordance with law on his own, before moving the application for withdrawal from prosecution in the trial court.

Thereafter another full bench was constituted to consider the powers of government exercisable under section 321 of Cr. P. C., the full bench (Cri Misc. Writ Petition no. 10861/2015. Ram Narayan Yadav vs State of UP and others) was supposed to consider following three questions;

1. Whether the power of withdrawal can be exercised by State Government under Section 321 of Code of Criminal Procedure in a whimsical or arbitrary manner or it is required to be exercised for the considerations, just, valid and judicially tenable?
2. Whether decision taken by State Government for withdrawal of cases communicated to Public Prosecutor with direction to proceed ahead is open to judicial review or not in a writ jurisdiction under Article 226 of the Constitution of India?
3. Whether State Government should not be required to make scrutiny of various criminal cases pending in Subordinate Courts to find out if they deserve withdrawal in exercise of powers under Section 321 Cr. P. C. irrespective of fact that accused or anyone else has approached the government for this purpose or not?

This full bench replied the above referred questions in the following terms in its judgment dated 20th February 2017;

1. The State Government is not at all free to exercise its authority under Section 321 Cr. P. C. in whimsical or arbitrary manner or for extraneous considerations apart from just and valid reasons.
2. The decision taken by the State Government for withdrawal of the case communicated to the Public Prosecutor is open to judicial review under Article 226 of the Constitution of India on the same parameters as are prescribed for invoking the authority of judicial review.
3. The State Government is free to act under the parameters provided for to make scrutiny of criminal cases pending in subordinate courts to find out as to whether they deserve withdrawal under Section 321 Cr. P. C. or not as it is in the realm of the policy decision, and call on the said score has to be taken by the State Government and same has to be based on the parameters required to be observed while moving an application for withdrawal of prosecution under Section 321 Cr. P. C.

In a latest case decided by the Allahabad high court on 1^stFebruary 2018 (APPLICATION U/s 482 No. – 35886 of 2017 at Allahabad : Rasheed Khan & Another Vs. State Of U.P. & Another ), wherein it has interpreted the import of word “other person” as used in sub-section (2) of section 401 of Criminal Procedure Code. Sub-section (2) of section 401 of Criminal Procedure Code is a provision directly related to the theory of victimology. To appreciate the issue the provision is necessary to be read here and the same reads as under;

“401. High Court’s powers of revision. – (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defense.”

It was urged before the High Court that the use of words “any other person” in sub-section (2) of Section 401 Cr. P. C. after the word “accused” necessarily includes the complainant or the informant and thus, it was incumbent upon the revisional court to have afforded an opportunity of hearing to the informant and injured before passing an order in favour of accused. The applicants has challenged the order of court below on the grounds that the same has been passed by the revisional court in gross violation of the principles of natural justice as before passing the impugned order neither any notice was issued to the applicants nor they were afforded any opportunity of hearing as required by Section 401 (2) Cr. P. C. It was further urged that the words “other person” used in the above sub-clause should include the complainant also, and therefore, it was incumbent on the part of the Court to have given an opportunity to the applicant of being heard.

The word other person as used after the word accused in this section cannot be interpreted about accused or its other counterparts only.

But the High Court while recording an unusual finding, totally ignoring the victims’ rights, had held that, “…..a bare reading of sub-section (2) of Section 401 Cr. P. C. indicates that the words “any other person” appearing in sub-section (2) of Section 401 Cr. P. C. are preceded by the word “accused”. The preceding word “accused” represents a specific class, i. e. “the accused” and thus, the presumption arises that the subsequent general words “any other person” would include persons belonging to the category of only accused and it cannot be said that no class can be found in the specific word “accused” used in sub-section (2) of Section 401 Cr. P. C. and the specific word exhausts the class, hence the principle of ejusdem generis will apply with full force and it can safely be held that it was not the intention of the legislature to include the informant and the complainant in the general words “or any other person” mentioned in sub-section (2) of Section 401 Cr. P. C. which are preceded by the specific word “accused”.

This finding by the High Court is in direct conflict with victimology as well as against the general principle of interpretation of statute.

Victims may be classified in two main categories namely primary and secondary. The person or persons falling in first category of victims are the person who has suffered injury or harm (or both) as a direct result of a criminal offence, whether or not that injury or harm was reasonably foreseeable by the offender; or a family member of a person who has died as a direct result of a criminal offence committed against that person; or if the person referred to above is under 18 years of age or is incapable of managing his or her own affairs because of mental impairment, a family member of that person.

A Primary victim is a person who is injured or dies as a result of:

1. an act of violence against them or,
2. trying to prevent an act of violence or,
3. trying to arrest someone they reasonably believe has committed an act of violence or,
4. trying to aid or rescue someone they believe is the victim of an act of violence

Secondary victim is a person who: is present at the scene of an act of violence and who is injured as a direct result of witnessing that act.

According to the Black’s law Dictionary (8^th Edition, 2004) the principle of Ejusdem Generis is where general words follow an enumeration or details of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. It is a canon of statutory construction, where general words follow the enumeration of particular classes of things, the general words will be construed as applying only of things of the same general class as those enumerated. If a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, “vehicles” would not include airplanes, since the list was of land-based transportation.

The term Ejusdem Generis in other words means words of a similar class.

When High Court in above judgment based its view upon the principle of Ejusdem Generis while interpreting and applying the principle the court misread and wrongly interpreted the word accused presuming something and inserting an artificial meaning and interpretation by saying that,”…arises that the subsequent general words “any other person” would include persons belonging to the category of only accused.”

Any question of statutory interpretation begins with looking at the plain language of the statute to discover its original intent. To discover a statute’s original intent, courts first look to the words of the statute and apply their usual and ordinary meanings. No reason has been assigned by the High Court that why the words “other person” used in section 401 (2) Cr. P. C. necessarily and universally to be understood as only the persons associated with accused? That too when the word “accused” used separately in the provision besides the word “other person”. A pertinent question arises that why words “accused” and “other person” are to be given same and similar meaning when accused and other person are used separately in the provision? What was the occasion for legislature to use two different words for the same class as the word accused effectively includes in it all categories of accused. Moreover the High Court also failed to identify the actual word meaning of “accused” which means a person or group of people who are charged with or on trial for a crime.

If after looking at the language of the statute the meaning of the statute remains unclear, courts attempt to ascertain the intent of the legislature by looking at legislative history and other related sources. Courts generally steer clear of any interpretation that would create an absurd result which the Legislature did not intend.

Because legislators may intend different things when they vote for a bill, statutory construction is often fairly difficult. Statutes are sometimes ambiguous enough to support more than one interpretation. In these cases, courts are free to interpret statutes themselves. Once a court interprets the statute, other courts usually will not go through the exercise again, but rather will enforce the statute as interpreted by the other court, similar to stare decisis.

The following common Rules often followed for Statutory Interpretation by courts;

1. Statutes should be internally consistent. A particular section of the statute should not be inconsistent with the rest of the statute.
2. When the legislature enumerates an exception to a rule, one can infer that there are no other exceptions.
3. When the legislature includes limiting language in an earlier version of a statute, but deletes it prior to enactment of the statute, it can be presumed that the limitation was not intended by the legislature.
4. The legislature is presumed to act intentionally and purposely when it includes language in one section but omits it in another.
5. Where legislation and case law conflict, courts generally presume that legislation takes precedence over case law.
6. The Rule of Lenity: in construing an ambiguous criminal statute, a court should resolve the ambiguity in favour of the defendant.
7. A court may also look at the common usage of a word, case law, dictionaries, parallel reasoning, and punctuation.

In this way it appears that of late the democratically elected governments are forgetting that they are by the people and for the people and not for the Kings and monarchs and the people are no more subjects but the citizens having equal rights and each and every one of them is citizen of a free state contains, within himself, by nature and the constitution, as much of the common sovereignty as another. In the eye of reason and philosophy, the political condition of citizens is more exalted than that of noblemen.