Legal analysis of withdrawal of cases
Md. Ziaur Rahman
THE recent trend of withdrawal of the cases by the ruling government on the ground of 'political harassment' is an issue to be reconsidered. This 'withdrawal' culture may create an array of mistrust and non-confidence about the government's commitment to rule of law as well as the necessity of judiciary in the country. If the ruling as well as the opposition does not show their allegiance to the judicial system, then probably the other people will loose their faith on the rule of law.
Can the government withdraw criminal cases by an executive order?
A Public Prosecutor can seek withdrawal of the prosecution only when instructed by the government in writing. The powers relating to withdrawal of cases is dealt with under section 494 of the Code of Criminal Procedure, 1898 wherein it is said that any Public Prosecutor may, with the consent of the Court, 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 the Code no charge is required, he shall be acquitted in respect of such offence or offences.
Why the learned court is to consent on the withdrawal of cases where there are a lot of alternatives in the hands of the law? There is a chance of discharging the accused from the allegations under section 241A and section 265C of the Code of Criminal Procedure, 1898. 'Political consideration' should not be taken as a standard for the withdrawal of cases. Rather the suspects should be surrendered to the hands of the normal procedure of law. An exemption for political leaders engulfs a sense of classification. If the political bigwigs are set free through the judicial prisms, that would ultimately increase the credibility of the political leaders.
Whether withdrawal of cases are inconsistent with the constitution?
Articles 26 and 27 of the constitution of Bangladesh provide equality before law and equal protection of law. First of all we need to scrutinize the provisions of Article 27 as to whether this provision of the constitution gives any exemption to the political activists or not. In this regard, Article 27 ensures equality before law by providing that all citizens are equal before law and are entitled to equal protection of law. So, it is evident that the political activists or leaders are no exception to Article 27 of the constitution. Rather the withdrawal of cases under section 494 of the Code of Criminal Procedure is inconsistent with the spirit of Article 27 and violation of the fundamental rights of equality before law and thereby liable to be ineffective. As Article 26 provides that all existing laws inconsistent with the provisions of this Part (Part-III: Fundamental Rights) shall, to the extent of such inconsistency, become void on the commencement of this constitution and the State shall not make any law inconsistent with any provisions of this Part and any law so made shall, to the extent of such inconsistency, be void.
Interference with independence of judiciary?
Independence of judiciary truly means that the judges are in a position to render justice in accordance with their oath of office and only in accordance with their own sense of justice without submitting to any kind of pressure or influence be it from the executive or legislative or from the parties themselves or from the superiors and colleagues. The present government can instruct the Public Prosecutors concerned to apply to the court for withdrawal of cases filed against the political leaders. But the government cannot put pressure on the courts to agree to the withdrawal of cases. Ready acceptance of the government's recommendation to withdraw cases creates an inference of indirect interference, if not direct. If government pressurizes the courts, it will tantamount to interference in dispensation of justice. Independence of judiciary is the hallmark of democratic polity and the key to proper functioning of the rule of law. Violation of this independence will have serious repercussions that can jeopardize the smooth functioning of democracy.
Will withdrawal of case jeopardize the rule of law?
By 'rule of law' we mean the equality of law or equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. In this sense rule of law conveys that no man is above law. From this definition of rule of law, it can be said that the withdrawal of cases on political consideration specially on subjective satisfaction of the government machinery, is deplorably inconsistent with concept of rule of law and consequently the latter will jeopardize the former.
Alternative remedies available in the existing laws
a) Before the pronouncement of judgment:
The existence laws of the country concede a lot of provisions regarding the false, frivolous and vexatious accusations in different Codes. First of all, if the allegation is groundless, the court will discharge the accused under section 241A of the Code of Criminal Procedure. Again, if the offence alleged is triable by the Sessions Court according to section 195 of the Code of Criminal Procedure, 1898 then there is also the chance of discharging the accused, if the court considers the charge as groundless under section 265C. Sections 245 and section 265H of the same Code says that the Magistrate and the Sessions Court respectively shall record an order of acquittal, if he finds the accused not guilty. Besides these, section 248 of the Code of Criminal Procedure, 1898 provides for the withdrawal of complaint by the complainant but not necessarily by the State party. If a complainant, at any time before a final order is passed in any case, satisfies the Magistrate that there are sufficient grounds for permitting him to withdraw his complaint, the Magistrate may permit him to withdraw the same, and shall thereupon acquit the accused.
b) After the pronouncement of judgment:
The Government has also the power to suspend, or remit sentences after it has been pronounced. There are also the provisions regarding the compensation as well as imprisonment (in case of default to pay compensation) of the complainant /informant under section 250 of the Code of Criminal Procedure as well as under section 211 of the Penal Code, 1860. Section 250 of the Code of Criminal Procedure, 1898 prescribes actions that can be taken against the False, frivolous or vexatious accusations and the Magistrate may direct that compensation to such amount not exceeding one thousand Taka or, if the Magistrate is a Magistrate of the third Class, not exceeding five hundred Taka, as he may determine be paid by such complainant or informant to the accused or to each or any of them. Not only that but also the Magistrate may, in default of payment, direct the person ordered to pay such compensation shall suffer simple imprisonment for a period not exceeding thirty days.
So, it is very much clear that the Government has lot of alternatives to resolve rather than to withdraw the cases on the 'political consideration.' Thus, it is expected from the Government to reconsider the trend of withdrawal of cases on political consideration. Exhaustion of judicial procedure is also the essence of rule of law.
Md. Ziaur Rahman is a Senior Lecturer of Law at Northern University Bangladesh.