Recently, the Bharatiya Janata Party through one of its star rabble-rousers, Ms. Uma Bharati, tried once again to foment inter-community tensions in Hubli, Karnataka (see CC, August 2004) in a bid to influence the results of assembly elections scheduled in the states of Maharashtra and Arunachal Pradesh. Faced with a ten-year-old case reopened against her for fomenting passions that claimed six lives, Ms. Bharati and her party tried unsuccessfully to whip up popular support. They failed.
The role of the district court, however, in allowing the state to withdraw a case it had lodged earlier, led to an interesting and noteworthy citizens’ intervention in the matter. Supreme Court lawyer, Nitya Ramakrishnan worked with local lawyer, Jagadeesh, in Bangalore, to prepare the draft for a legal intervention. Communalism Combat, through Gauri Lankesh and others, helped to establish links with the Karnataka Komu Souharda Vedike (Communal harmony forum), which promptly agreed to become local petitioners in the case.
The result was citizens’ legal action in the form of a Criminal Revision Petition numbered 132/2004, 133/2004, 134/2004, 135/2004, challenging the order of the district court, Hubli, on September 6, 2004, giving consent for withdrawal of cases against Ms. Bharati.
The criminal revision was admitted by sessions judge, John Michael D’Cunha after hearing the preliminary arguments on September 16, 2004. Mr. D’Cunha posted for further argument on September 20, 2004. On September 20, the sessions judge ordered issue of notices to Ms. Bharati and 19 other respondents, including the public prosecutor, asking them to respond to the petition.
The revision petition was filed challenging the order passed by the JMFC II, Hubli, on July 11, 2002. While rejecting the withdrawal application filed by the assistant public prosecutor, the court held that, "It is pertinent to note that the offences punishable u/sec 307, 436 are exclusively triable by the hon’ble sessions court. Hence this court has no jurisdiction to trial or to give permission to withdraw this case. Hence the application filed by the learned APP is hereby rejected." The Judge held that "the present revision is entirely different from the earlier revision petition and the present revision petition is filed against the order passed on 6th September 2004, so there is no barb in me pursuing with this matter." The matter has been posted for October 14, 2004.
The petition lays down the facts of the case:
In the year 1994 on 14, 15 and 16 of August, there was a law and order problem due to the agitation of the BJP, a political party, and other organisations to hoist the national flag in the Idgah Maidan belonging to an organisation, Anjuman-e- Islam. They wanted to hoist the flag forcibly in the said place. There were orders of the court prohibiting the same. Pursuant to the said orders of the court, the government and its machinery had provided security and had issued prohibitory orders in the city of Hubli.
The second respondent/first accused (Ms. Uma Bharati) wilfully violated the prohibitory orders and made inciting speech instigating her followers and public to violate the prohibitory orders. She not only made a speech inciting the assembly to violence but also formed unlawful assembly and tried to enter the Idgah Maidan. As a consequence of acts of the second respondent/first accused here, orders of the court were violated and prohibitory orders were violated, and the said parties committed offences. It also resulted in the death of several persons.
One of the officers who was assaulted by the accused persons lodged a complaint against the accused persons. This was registered as Crime No. 246 of 1994 for offences under sections 143, 147, 148, 353, 109, 188, 427, 436, 504, 506, read with 149 of the Indian Penal Code. Thereafter, another FIR was registered in Crime No. 248 of 1994. After investigation, the prosecution filed the charge sheet for offences under sections 143, 147, 148, 353, 307, 324, 341, 224, 109, 188, 427, 436, 504, 506, read with 149 of the Indian Penal Code. The case was numbered as CC No. 563 of 1995. Since all the accused were absconding, non-bailable warrants were issued against them to secure their presence and the same NBW has been re-issued about 28 times. The case was pending committal since 19.1.1995. In 2000, a proclamation was issued against A1 to A5 and A10 to A22. For all these years no serious efforts were made by the prosecution in securing the accused before the court for their presence.
The learned assistant public prosecutor filed an application under section 257 of the Code of Criminal Procedure seeking consent for withdrawal of the case vide orders of the government and the orders of the directorate of prosecution. The said application came to be rejected by the learned JMFC II court, Hubli, vide order dated July 11, 2002.
Two criminal revision petitions were filed by the accused and the state, 76/2004 and 88/2004, praying for a revision of the order of the JMFC II court, Hubli, and for challenging the very same order respectively. Both petitions were dismissed by the learned first additional district and sessions judge as being barred by limitation and also on merits.
Pursuant to this, a public interest litigation was filed before the hon’ble high court of Karnataka asking that the case against the said accused be withdrawn. The hon’ble high court in WP No. 34076/2004 dismissed the petition with a direction to the JMFC court to ‘consider the material facts and the substance of the earlier application after getting comments and reasons from the learned APP for withdrawal in public interest’.
On September 1, 2004 the learned JMFC, pursuant to the order of the hon’ble high court, asked for comments from the APP with respect to the withdrawal of prosecution. The APP sought eight days time to file his comments, with this being rejected by the learned JMFC, Hubli. The same was challenged before the hon’ble sessions court with the sessions court upholding the order of the JMFC and asking the learned APP to file his comments by 11 a.m. on 4.09.2004. On 3.09.2004 and 4.09.2004 applications were filed by five interveners opposing the withdrawal of prosecution on the basis that withdrawal was not in the public interest. On 6.09.2004, after hearing arguments by the state, counsel for the accused and the interveners, the learned JMFC pronounced its order holding that the application of the learned APP filed on 6.07.2002 seeking consent for withdrawal of prosecution was allowed and that the accused stood discharged.
a) It is most respectfully submitted that the order passed by the learned magistrate is one without proper appreciation of facts of the case and law and hence the same is liable to be set aside.
b) It is respectfully submitted that having accepted that the petitioners have locus standi for presenting application and opposition in the public interest, the court below has erred in rejecting the application.
c) Petitioner most respectfully submits that the learned magistrate has erred in accepting the application of the assistant public prosecutor under section 321 and granted consent in the absence of any condition warranting the same. It is pertinent to note that the hon’ble Supreme Court in numerous judgements has laid down the conditions under which an application under section 321 can be made and the conditions under which consent can be granted. The peremptory requirements of sec. 321, CrPC are: a) Public interest b) Personal satisfaction of PP, over and above the government’s decision c) Absence of any other extraneous factors. It is pertinent to note that these three factors are absent in this matter and hence there is no ground for the withdrawal of prosecution.
d) The decision of the learned magistrate that the government had indeed made out a case for withdrawal in the public interest is improper, as there is no material on record to indicate that public interest would be served by the withdrawal of prosecution. This runs counter to well-established law laid down by the Supreme Court. In fact, the material on record indicates that the public interest would only be served if serious offences such as the ones above mentioned are seriously prosecuted as per the law of the land. The very ground raised by the learned assistant public prosecutor in his written submission on 6.9.2004 that the accused/respondents are threatening further violence in the Tiranga Yatra shows that there is no public interest to be served by withdrawal of prosecution. These comments display the belief that accused would create more damage if the case was not withdrawn. Therefore the learned magistrate has no basis in law to make an order of discharge or withdrawal.
e) The decision of the learned magistrate that the learned assistant public prosecutor, on the basis of instructions by the government, acted independently in coming to a finding that the government had made a case for withdrawal due to overwhelming public interest is erroneous as there is no material on record to indicate that the learned assistant public prosecutor had indeed acted independently.
f) The simple question is whether the assistant public prosecutor has sought withdrawal based on his written comments or not. In this case the orders of the sessions court required that the assistant public prosecutor was, in addition to the existing application, to file written comments. In this matter, the learned magistrate committed a grave impropriety by relying solely on the alleged oral submission made by the assistant public prosecutor stating that the earlier application dated 6.7.2002 was filed by him with due application of mind and in the larger interest of the public. Mere oral submission made that an application that was presented a couple of years ago was one with application of mind and in the public interest cannot be taken at face value in the absence of any explanation in that regard. The court below has failed to look into the orders passed by the government dated 23.01.2002 and instructions given by the directorate of prosecution. Under the said circumstance, the order of the learned magistrate is unsustainable and liable to be set aside.
g) That the finding by learned magistrate at Para 31 (page 39) ‘that there is no meaning to go behind the decisions of the government and the learned assistant public prosecutor in applying for withdrawal of this case in the larger interest of the public’ is improper and illegal as it shows that the magistrate had failed in his duty to consider whether the government had indeed made out a ground for withdrawal in the public interest and had also failed in his duty to assess whether the assistant public prosecutor had acted independently.
h) That the learned magistrate has committed a serious error of law by disregarding the directions of the hon’ble high court of Karnataka in WP 34076/2004 mandating the learned magistrate to consider the material facts and substance of the earlier application after getting comments and reasons from the learned assistant public prosecutor for withdrawal in the public interest. The learned sessions court has similarly mandated the learned magistrate to take into account the written submissions of the APP. The learned JMFC disregarded these express directives by noting that ‘The comments made by the learned assistant public prosecutor as to the present prevailing situation, the history of the case, the nature of the accused persons etc., are uncalled for’ (para 28 page 31). The learned magistrate, by concluding that, ‘I am not making any inference from these comments that the APP is opposing the application or supporting the application’ (para 28 page 31) has disregarded the comments and reasons of the learned assistant public prosecutor which he was duty bound to consider and thereby committed a serious error of law.
i) That the learned magistrate committed a grave impropriety by going into extraneous and illegal considerations such as the ground that ‘refusal of the consent to the withdrawal from the prosecution will not serve any purpose as already ten years have lapsed since the incident’ (while addressing points No. 1 to 3, para 32, page 39) This statement by the learned magistrate undermines the very basis of the rule of law and sets in place a culture of impunity as then serious offences such as in the present matter, which are further well supported by evidence, will not be prosecuted solely on the ground that a long period of time has lapsed.
j) That the magistrate has proceeded to discharge on his own personal reading of facts and in fact exceeded himself by going beyond the powers of even sections 227 and 228 of the Code of Criminal Procedure.
k) That the learned magistrate has failed to understand and misquoted the Supreme Court decision in Rajendra Kumar Jain v. State, AIR 1980 SC 1510, Sheo Nandan Paswan v. State of Bihar, AIR 1987 SC 877, Subash Chand v. State, AIR 1980SC 423, as the ratio propounded and reiterated by all these judgements is to urge the court to give its consent to withdrawal of prosecution only if it is clear that the government has made out a case of public interest and that the prosecutor has acted independently. Apparently on verification of the records it can be seen that both requirements stated above are not satisfied in this matter and the learned magistrate has arrived at an erroneous conclusion.
l) That the learned magistrate committed a grave impropriety and illegality by citing the head notes of the judgement instead of the ratio of the judgement. This has allowed for a misreading of the import and substance of the judgement as the head notes are mere annotations made by publishers as to what they understand to be the crux of the judgement and do not under any circumstances constitute a part of the judgement and hence the law laid down by the Supreme Court.
m) That the order of the learned magistrate noting that the petitioners/applicants had not signed the applications and not supported their contention with an affidavit. This is an erroneous reading of law. The petitioners had empowered their counsel to appear and present, prosecute, defend in all the proceedings in respect of the case and also in interlocutory applications and petitions. The said error is not grave and a mere error which can be cured. This is an error of fact, law and jurisdiction meriting a revision.
Archived from Communalism Combat, September 2004 Year 11 No.101, Forum