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Withdrawal of criminal cases as viewed by the Supreme Court of Bangladesh

Law and Order

The administration of criminal justice is of paramount significance for all the countries the world over. Bangladesh is no exception, either. But sadly enough, the administration of criminal justice has all along been fraught with multifaceted crises in our country. Of all the ailments affecting criminal justice adversely in our country, the withdrawal of criminal cases by the state has continued to generate heated debates and controversies over the decades.

This article is but a humble attempt at having a glimpse of the relevant Section of the Code of Criminal Procedure and the interpretation thereof as laid down by the Supreme Court of the country by way of case-law.

For a proper appreciation of the import and essence of this particular aspect of criminal justice here in our country, let’s have a look at Section 494 of the CrPc first.

Section 494 of the CrPc: “ 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-

1. If it is made before a  charge has been framed, the accused shall be discharged in respect of such offence or offences;
2. 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.

From a plain reading of the Section, it is discernible that only the Public Prosecutor can apply to the Court concerned for withdrawal of the criminal cases. Secondly, the decision for or against the withdrawal of the cases is left to the discretion of the Court. Thirdly, an application for withdrawal from prosecution can be made for any person under trial in connection with any offence or offences alleged, though almost all such cases are withdrawn under this Section labelling them as so-called “Politically Motivated Cases or Political Cases”.

There are numerous decisions by both divisions of the Supreme Court of Bangladesh on these aspects of Section 494 of the CrPc. These decisions or judgments may be classified and looked up to for guidance in the following manner. Please note that decisions by only the Appellate Divisions are cited herein below.

1. Decisions relating to the role of the Public Prosecutor with regard to making application for withdrawal
2. Decisions relating to the role of the Courts with regard to according consent to prayer for withdrawal

(a)      Decisions relating to the role of the Public Prosecutor with regard to making application for withdrawal:

Even though Section 494 of the CrPc expressly provides that it is the Public Prosecutor who is exclusively entrusted with the duty to ask for the withdrawal of criminal cases, there exist confusions as to who should apply for the withdrawal. Surprising as it may sound, there were instances when persons other than the Public Prosecutors applied to the Court for withdrawal. These persons mostly included the Court Inspectors, Court Sub-Inspectors of Police and even individual parties to the cases at times.

The honourable Supreme Court of Bangladesh made this requirement of the law crystal clear by way of judgments in various cases.

In Sikandar Ali Sikdar Vs. State & Others [31 DLR (AD) 135], it was held that “Withdrawal of the criminal case is to be asked for by the Public Prosecutor --”.In this case, the Court Sub-Inspector of Police, not the Public Prosecutor, filed the application before the magistrate praying for withdrawal of the prosecution.

In Abdul Quddus & Kanto Miah and Others Vs. the State & another [2 BSCD 48], the Appellate Division held that, “No petition was made by the Prosecution Lawyer -----and so from this, there is no indication that the magistrate has applied his mind in giving consent to the withdrawal of the case.”

This case was withdrawn by the magistrate on receipt of a Government Memorandum directing the withdrawal of the case. The withdrawal of this case was held illegal on the reasoning that in absence of any application made to the Court by the Public Prosecutor, the magistrate should not have taken the Government Memorandum into consideration.

 

In Abdul Khaleque and Others Vs. Md. Hanif and Others reported in 9 BSCD, the Appellate Division was of the opinion that “Section 494 of the Code gives the authority only to a Public Prosecutor to file an application for withdrawal and as such the accused have no right to file an application for withdrawal”.

In this case, the application for withdrawal of the case was made to the court by the accused themselves, not by the Public Prosecutor concerned. Hence the appeal failed.

Apart from the judgments referred to hereinbefore, there are innumerable other judgments passed in tune with the same way of legal reasoning followed by adjudication.

It should, by now, be amply clear to all and sundry involved in the administration of criminal justice that when it comes to withdrawal of criminal cases, it should be the Public Prosecutor or Assistant Public Prosecutors duly empowered in that behalf making the application to the Court for withdrawal, and none else.

(b)    Decisions relating to the role of the Courts with regard to according consent to prayer for withdrawal:

Let’s now turn to the most important aspect of the withdrawal saga- the consent of the Court. As noted earlier, there exists much confusion as to the person competent to apply for withdrawal. Likewise, confusions and chaos with regard to consent of the court exist among the learned magistrates and judges deciding the applications for withdrawal. As a result, the Apex Court of the country had to intervene here as well. This was because the learned Courts appeared to be passing or to have passed mechanical orders without considering the merits of the cases, the materials on record, and the grounds relied on and above all non-consideration of public interest together with ends of justice.

In Sikandar Ali Sikdar Vs. State and Others [31 DLR (AD) 135], it was held that “the consent of the court is a judicial function and the court must exercise its function judicially. There must be some materials on record to show that there was cogent ground of according consent to withdraw a criminal prosecution either wholly or in part.”

It was held in Abdul Majid Khan and Others Vs. State and Another [4 BSCD 71] that, “Consent of the court must not be given as a matter of course simply on the mere asking by the Public Prosecutor. There must be reasonable grounds for giving the consent, and in the absence of any reasonable grounds, the order of withdrawal can not be sustained in law.”

The Appellate Division in Md. Firdous and Others Vs. The State and Another [4BSCD 7] was of the opinion that “When the government passes order for withdrawal of a case, the court is to consider whether the case should be withdrawn. Without doing so, the Sessions Judge can not bypass the entire matter.”

It is reported in Syed Matiur Rahman Vs. the State [36 DLR (AD) 32] that, “The court is to exercise its function judicially before giving consent which implies that the court will have to examine the material on which the government decides withdrawal of a case--- it is open to the court to see that the government’s order for withdrawal was not malafide or made for collateral purpose when there is specific allegation against the accused.”

What we can gather from the reported decisions mentioned herein above as well as other judgments contained in various Law Reports of the country is that the role of the Courts with regard to prayers for withdrawal of criminal cases is clearly a judicial one implying that the Courts are under no obligation to accord consent to such prayers mechanically merely for the asking. Rather, all aspects of the cases have to be taken into account while deciding either for or against the withdrawal prayed for.

Both the Public Prosecutors and the Courts enjoy wide discretion in this regard. By way of lawful application of the discretion, the Public Prosecutors, the learned Magistrates and Judges can really uphold Rule of Law as against the arbitrary misuse of section 494 of the CrPc by the state machineries.

But it has long been a matter of great dismay and concern for the nation as a whole that such a people-oriented approach to the matter is mostly set at bay due to rampant politicization, corruption, subservience and ignorance.

Anyway, let’s hope for the best in the days to come. May good sense prevail upon all concerned so that our firm commitments to Rule of Law for the citizenry at large and justice for all get the upper hand eventually.

 

MOHAMMED SHAHJAHAN: An Advocate practicing at the District and Sessions Judge’s Court, Cox’sBazar.

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