Righting the wrong

On November 28, 2019, the Maha Vikas Aghadi (MVA), a post-poll coalition between Shiv Sena, Nationalist Congress Party and Indian National Congress formed the government in Maharashtra under the aegis of Uddhav Thackeray, after almost a month-long drama. It was difficult to envisage that parties at extreme ends of secular values, with Shiv Sena being the hardline Hindutva regional party from Maharashtra, coming on board with the secular parties like Congress and NCP. But the popular saying goes that a week is a long time in politics and the first signs of the new MVA government have been encouraging. This is doubly true given the otherwise gloomy political and economic environment.

One of the most vicious acts of the Central government in the last few years has been its attack on human rights defenders, including Sudha Bharadwaj, Surendra Gadling, and Gautam Navlakha, amongst others. The government worked to implicate them in false cases relating to Bhima Koregaon riots that happened on January 1, 2018. These riots were actually orchestrated by Hindutva leaders like Milind Ekbote and Sambhaji Bhide. Though initially an FIR was filed against the Hindutva activists for the violence, the Maharashtra police later expanded the investigation to target the activists and lawyers who have been working for the marginalised communities, including tribal and Adivasi groups and assisting them in their struggles against the State.

On June 6, 2018, the Maharashtra Police arrested 5 lawyers and activists from different parts of India, including Sudhir Dhawale, Rona Wilson, Shoma Sen, Surendra Gadling and Mahesh Raut. And then again in August 2018, it sought to arrest another set of 5 lawyers and activists, including Sudha Bharadwaj, Arun Fereira, Varavara Rao, Vernon Gonsalves, and Gautam Navlakha, on completely concocted and fabricated allegations. Though the Supreme Court gave the latter 5 activists interim protection from arrest for four weeks, they were arrested (except Gautam Navlakha), once the interim protection was over and they have been in prison since then. Most have been refused bail too, despite many of them suffering from serious health concerns.

Since the swearing-in of MVA government, there has been a growing demand that the false cases against Bhima Koregaon activists ought to be withdrawn, with NCP clearly asking the Chief Minister, Uddhav Thackeray, to withdraw them in the first week of December 2019, This would follow the decision to withdraw cases and drop all charges against the environmental activists, who were protesting against Aarey forest cutting or those protesting against Nanar refinery. In this context, the question remains as to what it means to 'withdraw prosecution'? Can it be done by the State Government, even when the charge sheet has been filed?

Section 321, CrPC mandates that the public prosecutor may withdraw from the prosecution of any person, with the consent of the Court, at any time before the judgment is pronounced. This is done either generally or in respect of the offences she may be tried and upon such withdrawal, if it is made before charges are framed, then the accused shall be discharged of such offences. And if made after filing of the charge sheet, the accused shall be acquitted in respect of such offences. Proviso to Section 321 further provides that if the offence relates to a matter of Union power or was investigated by CBI or involves misappropriation, or damage to Central Government property, or committed by a Central Government employee, then the consent of Central Government is required for the withdrawal from prosecution. In effect, Section 321 empowers the public prosecutor to withdraw from prosecution any case at any time before judgment is pronounced, with the court's consent, except the case mentioned in the proviso.

This provision has been a subject matter of a lot of debate since it is perceived that this law provides untrammelled power to State governments to withdraw cases, based on extraneous considerations. At the same time, it is important to bear in mind that this law also provides an opportunity to the new government to undo the wrongs committed by the previous government in filing false cases against their political adversaries. The Courts have held that Section 321 is not absolute in nature and there are checks and balances inherent in the law. Firstly, the Public Prosecutor cannot act as a mouthpiece of the State Government but has to apply their mind independently to the facts of the case, before filing for withdrawal. Secondly, the consent of the court is necessary, i.e., the court has to be satisfied as to whether the withdrawal from prosecution is being sought for genuine reasons or not.

Though Section 321 does not lay down any grounds for seeking withdrawal, the courts have laid down the key criteria that need to be satisfied for filing of withdrawal from prosecution in Sheo Nandan Paswan v. State of Bihar & Anr. (1996) 1 SCC 438. The criteria were stipulated to be — lack of prospect of successful prosecution in the light of the evidence, implication of persons as a result of political and personal vendetta, inexpediency of the prosecution for reasons of State and public policy and adverse effects that the continuance of the prosecution will bring to the public interest in light of the changed circumstances.

In the present case, all four criteria exist and there is considerable merit in seeking withdrawal from prosecution in these cases. Section 321 was meant to be a provision for redressing the wrongs of false prosecutions or those arising from political vendetta. Withdrawal from prosecution of cases against Bhima Koregaon activists is the aptest case for the application of Section 321, CrPC and one hopes that MVA government initiates it with utmost urgency.

Views expressed are strictly personal