By Paras Nath Singh
Immediately after the resignation of Union Education Minister Dharmendra Pradhan, which happened weeks after mass demonstrations by students all over India, an understanding was reached between representatives of the Cockroach Janta Party (‘CJP’) and the Union of India through its two ministers, namely J.P. Nadda and Dr. Jitendra Singh.
There is no document, at least none in the public domain, as to what exactly was signed, if at all, between the CJP and the ministers on the basis of which the protests were called off with immediate effect. What we know is that Dharmendra Pradhan resigned and that the ministers assured the CJP that cases filed against protesting students would be withdrawn in BJP-ruled states.
Before coming to the legal nitty-gritties of the process involving the withdrawal of cases, let us look at precedents for settlement between civil society and the State. Following mass agitations, an outstanding example of settlements reached by students, specifically the All Assam Students’ Union (‘AASU’) and the All Assam Gana Sangram Parishad, was the Assam Accord signed in the year 1985. Unlike the oral understanding reached between the CJP and the two Union Ministers, the Assam Accord was signed in the presence of the then Prime Minister Rajiv Gandhi.
In the present case concerning the students’ agitation against rampant paper leaks and the subsequent calling off of the protest, no such piece of document is available in public record, if one was signed at all, regarding the terms on which the protest was called off. Be that as it may, what is important is that states such as Assam, Bihar and West Bengal, which are also BJP ruled states, have issued orders stating that they would ask the concerned authorities to take appropriate steps to withdraw cases against students in connection with the protest. This does indicate that such an agreement was arrived at the time when the CJP withdrew the agitation.
Once an FIR is registered, the police have two options: either to file a closure report before the concerned court, or to charge-sheet the accused. There is no automatic withdrawal of FIRs. A magistrate is empowered to reject the closure report and order further investigation. The victim of the crime can also file a protest petition opposing the closure report. The point is that the process involves a judicial element when it comes to the withdrawal of FIRs. What the magistrate will do in a given case is difficult to anticipate.
Another scenario could be that the police file a charge-sheet. The Supreme Court, while hearing the plea against police excesses on July 28, noted that the investigation may continue. Perhaps the assurance given by the Union Ministers that the cases would be withdrawn was not brought to the notice of the court. Be that as it may, once a charge-sheet is filed and the court takes cognizance of the offence, the prosecution can still be withdrawn.
Section 321 of the Criminal Procedure Code, 1973, and now Section 360 of the Bharatiya Nagarik Suraksha Sanhita, 2023, provides that: “The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,— (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.”
In Rajender Kumar Jain v. State (1980), the Supreme Court underlined the scheme behind this provision. It held: “1. Under the scheme of the Code, prosecution of an offender for a serious offence is primarily the responsibility of the executive. 2. The withdrawal from the prosecution is an executive function of the Public Prosecutor. 3. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else. 4. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so. 5. 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.
The broad ends of public justice will certainly include appropriate social, economic and, we add, political purposes sans Tammany Hall enterprises. 6. The Public Prosecutor is an officer of the court and responsible to the court. 7. The court performs a supervisory function in granting its consent to the withdrawal. 8. The court’s duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution.”
What follows from the above is that it is for the Public Prosecutor to take an independent decision whether to apply for the withdrawal of the prosecution. Such a withdrawal is permissible only with the consent of the court. However, what is crucial is the reasons for which such a withdrawal may be allowed. In a series of judgments, the Supreme Court has held that withdrawal of the prosecution could be allowed to meet the ends of public justice, public order and peace.
Moreover, in Rajender Kumar Jain, the Supreme Court specifically acknowledged that it had been expedient and necessary 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…” the Supreme Court held in Rajender Kumar Jain.
It was also held that Public Prosecutor may withdraw from the prosecution of a case not merely on the ground of paucity of evidence but also for appropriate social, economic and political purposes.
The court had also clarified that if the policy-makers (i.e. the executive) themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the court to say that the initiative comes from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind. Nor can there be any quibbling over words. Thus, there is nothing wrong in the government advising the Public prosecutor to apply for the withdrawal of the prosecution in a given case.
These observations squarely apply in the case of the students’ protests against whom FIRs have been registered. The decision of the various State Governments to withdraw the cases stems from the point of view of public peace, which is a valid consideration for withdrawing the prosecution. If such a consideration is valid for withdrawing a case at a stage after cognizance is taken of the offence, there is all the more reason why a magistrate should accept a closure report based on the same consideration. (IPA Service)
Courtesy: The Leaflet
