Plea for withdrawal of criminal cases be made in good faith, not to stifle process of law:SC

The Supreme Court Wednesday laid down principles for exercising powers by prosecutors in withdrawing criminal cases, saying trial courts exercise judicial function and are required to see that pleas for closure are made in “good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law”.

The slew of directions on closure of criminal cases either before framing of charges or final verdict have been rendered by a bench of Justices D Y Chandrachud and M R Shah in a judgement by which it dismissed the Kerala government's plea for withdrawal of a case against six LDF leaders in connection with the ruckus in the state Assembly in 2015, saying the privileges and immunities are “not gateways” to claim exemptions from criminal law which governs the action of every citizen. The 74-page verdict, penned by Justice Chandrachud dealt with the power of the prosecutor under section 321 of the Code of Criminal Procedure (CrPC) and said if both the trial judge and the revisional court have concurred in granting or refusing consent for withdrawing cases by prosecutors, even the Supreme Court should take extreme caution before disturbing such findings.

“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,” the provision says and postulates situations when such a request can be made by government prosecutors. “Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution,” it said. The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice, it said, adding that the public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution.

“While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons,” it said. In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature, the apex court said.

“Before deciding whether to grant its consent the court must be satisfied that: (a) The function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes; “(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law,” it said.

The trial court will have to see that the application for closure of prosecution does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given.

The grant of consent sub-serves the administration of justice and the permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain, it said. “While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated,” the judgement said. In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, the Supreme Court, while exercising its jurisdiction under Article 136 of the Constitution, would take extreme caution before disturbing such findings, the verdict said. “The (Supreme Court) may in exercise of the well-settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent,” it said.