On 27 March, an MP/MLA Court in Uttar Pradesh’s Muzaffarnagar allowed the withdrawal of criminal cases registered against 12 BJP leaders including a minister in UP government Suresh Rana, BJP MLA Sangeet Som, and VHP leader Sadhvi Prachi who were accused of inciting riots in Muzaffarnagar.
The order passed by Additional Sessions Judge Ram Sudh Singh ends up giving a clean chit to prominent BJP leaders, even without a trial, despite there being video evidence on record showing these leaders making inciting communal speeches shortly before the riots that took 60 lives and displaced over 50,000 people.
The withdrawal of criminal cases against BJP leaders despite clear video evidence indicating their role in inciting violence shows how the law on withdrawing prosecutions is often misused by state governments to serve political interests.
The Law on Withdrawing Prosecution
Section 321 of the Criminal Procedure Code allows the Public Prosecutor to withdraw, with the consent of the court, a criminal case against any offender.
Although Section 321 itself is silent on what grounds a withdrawal of prosecution may be granted, the Supreme Court has established certain grounds such as “legitimate concern for the organisation of equity”, “public interest”, “vexatious indictment”, or “lack of evidence”.
The Supreme Court, time and again, has emphasised on the need for the public prosecutor to apply his independent discretion in such cases, even go against the state’s assessment if needed, in reccommending withdrawal of prosecution. Therefore, section 321 envisages “free use of mind” by the public prosecutor, without any undue interference from the legislature.
Trial courts are also expected to not remain mute spectators, or deal with recommendations seeking withdrawal of prosecution in a mechanical manner. The trial courts are obligated to check whether the prosecutor has applied her free mind and given adequate explanations to seek the withdrawal of the criminal case.
However, not all applications seeking withdrawal of criminal cases need to be initiated by the prosecutor. In Ranjana Agnihotri’s case, where the validity of section 321 of CrPC and the decision of the state government’s order directing the withdrawal of prosecutions was challenged, a full bench of the Allahabad High Court held that the state government can issue an order for withdrawal from prosecution without there being request from the Public Prosecutor in charge of the case. This is subject to the rider that the Public Prosecutor shall apply her independent mind and record satisfaction before moving such an application for withdrawal from prosecution.
The Abuse of Process
Both the wording of Section 321 and the grounds established by the Supreme Court have failed to address the possibility that withdrawal of prosecution could be abused for political motives.
While the law envisages the public prosecutor to “apply his free mind” or “think independently”, it escapes no one’s attention that public prosecutors are appointed by the state government and continue in office on the wish of the government. The possibility of such an office-holder succumbing to political pressure from the state government is very real.
Although trial courts are mandated to check whether the decision-making of the public prosecutor is coloured by the interests of the state government, there’s little that such a court can do when both the investigating agency and the public prosecutor seemingly collude to brush crucial evidence under the carpet.
The Travesty of Justice in Muzaffarnagar
The withdrawal of prosecution against BJP leaders in the Muzaffarnagar riots case was a travesty of justice in the making. Section 321 has been time and again used by state governments to exonerate their foot soldiers, and even prominent leaders.
In 2013, the Samajwadi Party government in Uttar Pradesh had withdrawn the prosecution against 19 accused in various cases of terrorism. This move was later set aside by the Allahabad High Court. In 2018, the BJP government in Haryana also withdrew cases relating to violence during the Jat agitation of February 2016.
It is worth noting that in the Muzaffarnagar riots case, the withdrawal of prosecution was sought only for BJP leaders, and not leaders of other parties. For instance, cases against Muslim leaders such as Qadir Rana (BSP) and Saeed-uz-Zama (Congress) is just the same - inflammatory speeches. However, the benefit of withdrawal of prosecution has not been extended to them. This exposes how section 321 may be exploited to serve political ends.
In Muzaffarnagar riots case, the process for seeking withdrawal of prosecution against BJP leaders not only reeks of political interests but has also been shrouded in secrecy. The public prosecutor has refused to make the request seeking withdrawal of prosecution public, making it impossible for the stakeholders to check the veracity of the reasons that motivated his decision.
An officer from the public prosecutor’s office, who did not want to be named, informed The Quint that the withdrawal was sought on the ground of ‘public interest’ and ‘public harmony’.
There’s no big deal, it is very usual. We sought withdrawal on the ground that exonerating these leaders will lead to public harmony and will not cause any disturbance among the members of the society. It was in public interest.Officer of the Public Prosecutor
This raises a serious question regarding the right to equal protection of law under Article 14 of the Constitution. One may question the selectivity of the Public Prosecutor and wouldn’t the dropping of cases against non-BJP leaders also serve “public interest” and “promote public harmony”?
Advocate Ali Zaidi, who has represented many anti-CAA protesters in cases filed against them in UP, has called the decision to withdraw cases against BJP leaders an ‘abuse of justice’.
This was part of the plan. They used these leaders to gain political power, and then exonerated them after coming to power. Section 321 has often been abused by the political parties running the government in the state.Ali Zaidi
Zaidi said that one cannot expect the sitting judge to do anything in cases where the police and the prosecuting agency themselves are working in concert to not prosecute certain individuals. “How can you expect the public prosecutor, who is appointed by the state government, to work against the wishes of the state?” he asked.
The Imbalance of Power
In most cases where withdrawal of prosecution is granted at the request of the state government, there is also a wide asymmetry of power between the state and the other side.
Zaidi points towards the power imbalance apparent in the Muzaffarnagar riots case. It pitted the displaced underprivileged people who lost their lives and property against the leaders of the ruling party, backed by the might of the state’s legal machinery.
Zaidi says that a similar imbalance was a glaring issue in the Chinmayanand case as well, where a female law student accused former BJP MP of rape. On 19 February 2021, the same Yogi Adityanath government announced that it is likely to move an application under section 321 of CrPC seeking withdrawal of a criminal case against Chinmayanand.
How can you expect the other side, which is often poor, lacking social or political clout, and not represented by good lawyers, to make a case against the collective might of the state - the police, prosecution, and the government?Ali Zaidi
Withdrawal of criminal cases at the request of state governments exposes the abuse of the power imbalance between those who prosecute and those who are prosecuted in the criminal justice system.
The mechanical decision-making of the courts in such cases can end up defeating the quest for justice. Also, it tends to silence anyone else trying to gather the resources and the courage to fight a case against a powerful and influential accused.
The order in the Muzaffarnagar riots should surely be looked into by the high court. But alongside, this contentious order should also rekindle the debate on how Section 321 is prone to politicisation, and the need to institutionally address the glaring loophole.
Otherwise, all we’ll have is a criminal justice system where the state government may act with complete impunity, orchestrating its own justice.