Calcutta HC Sets Aside Single Judge's Order Reviving Criminal Proceedings Against Anisur Rehman, Remands Back Matter

In February 2020 and June 2020, the public prosecutor had filed applications in these cases for withdrawal of prosecution. The Calcutta High Court in two PILs Dipak Misra v. State of West Bengal & Ors., and Nilanjan Adhikary v. State of West Bengal and Ors., reversed the decision to discharge and acquit him. A division Bench of Justice Indira Banerjee and Justice Krishna Murari has ordered an ad-inetrim stay on the High Court's order dated 5 March 2021.

On Tuesday, the division bench of the Calcutta High Court also directed status quo as regards the applicants before itself in these PILs, co-terminous with the order of stay granted by the Supreme Court of in order dated 26.03.2021.

The order of the Single Judge of the Calcutta High Court of March 2 on Jahar Sha's writ petition

In the impugned order, Justice Bhattacharya recorded that the petitioner, Jahar Sha, the de facto complainant, had lodged a complaint against several persons regarding alleged murder of the petitioner's uncle. On the basis of such complaint, a First Information Report was registered and investigation had commenced. Subsequently, the charge-sheet was filed and the criminal trial had started.

The Single Judge noted that the charge-sheet indicates that grave offences were alleged against the accused persons, including Section 302 of the Indian Penal Code. Subsequently, the accused persons applied separately for bail before the High Court, but were refused on all such occasions.

"It is relevant to mention here that in all of such orders refusing to grant bail, passed by Division Benches of this Court, it was recorded that the Public Prosecutor opposed the prayer for bail. However, by the impugned order dated February 26, 2021, when the trial was about to reach culmination upon direction for expeditious hearing by a co-ordinate Bench, the Legal Remembrancer and Ex-officio Secretary to the Government of West Bengal, Judicial Department, apparently on the direction of the Governor, instructed the concerned Public Prosecutor to withdraw the case, under the provisions of Section 321 of the Code of Criminal Procedure", Justice Bhattacharya noted.

Upon considering the submission of both sides, the Single Bench opined that the Supreme Court categorically has laid down the yardsticks on which an application for withdrawal by a Public Prosecutor is to be made- that as per Bairam Muralidhar Vs. State of Andhra Pradesh [(2014) 10 Supreme Court Cases 380], the central question was whether the Public Prosecutor had really applied his mind to all the relevant materials on record and satisfied himself that the withdrawal of the prosecution would subserve the cause of public interest or not.

In the said authority, it was held that it is expected of the court to consider the materials on record to see that the application has been filed in good faith and it is in the interest of public interest and justice. Another aspect the court is obliged to see is whether such withdrawal would advance the cause of justice. It was further observed that the Public Prosecutor cannot act like the post office on behalf of the State Government; he is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. It was also held that an order of the Government on the Public Prosecutor in this regard is not binding.

"As far as the argument of learned Advocate General goes that Section 321 of the Code of Criminal Procedure confers power on the State, for all practical purposes, to decide whether an application for withdrawal of prosecution shall be made, the said contention cannot be accepted in view of the judgement in Bairam (supra) as well as the language of Section 321 of the Code of Criminal Procedure itself", stated Justice Bhattacharya.

The Single Judge expressed the view that as held in the said judgment, the Public Prosecutor cannot act like the post office on behalf of the State Government, but is required to apply his independent mind and good faith and peruse the materials on record to form an independent opinion whether the withdrawal of the case would really subserve the public interest at large, that even Section 321 of the Code of Criminal Procedure says that the Public Prosecutor or Assistant Public Prosecutor-in-Charge of a case may make such an application.

"It requires no precedent to observe that, although counsel is bound by the instructions of his client, in view of the specific power conferred in Section 321 of the Code on the Public Prosecutor, and not the State, to take such decision, there is ample scope of exercise of independent discretion by the Public Prosecutor in deciding to follow or refuse the instructions of the State in that regard", concluded the Single Judge.

Besides, Justice Bhattacharya was of the opinion that since Bairam's case laid down certain specific criteria to be observed for a Public Prosecutor to make an application for withdrawal, the same fetters should bind any instruction by the State as well. "Surprisingly, in the instant case, a specific notification was issued on February 26, 2021, apparently communicating a direction of the Governor to instruct the concerned Public Prosecutor to withdraw the case–in-question subject to the consent of the Sessions Court. However, not an iota of reason and/or how such withdrawal would advance the cause of justice and public interest has been indicated in the said order", said the Single Bench.

Moreover, Justices Bhattacharya commented that the modus operandi in the present case is rather transparent since the Public Prosecutor actually acted on such instruction and made an application pursuant to the order of the State Government and, despite having knowledge of the High Court being in seisin of the present writ petition, the concerned Sessions Judge has granted consent for such withdrawal, which had the effect of acquitting the accused persons.

"It is evident from the stand of the State taken on all previous occasions when bail was rejected, that the State vehemently opposed even the grant of bail to the accused. Hence, it defies logic completely as to what prompted the Government to instruct the Public Prosecutor-in-question to withdraw the case against the accused persons all on a sudden", remarked the judge.

Justice Bhattacharya asserted that despite the self-imposed restraint which the High court imposes upon itself in the exercise of jurisdiction under Article 226, if the writ court shuts its eyes to the perpetration of mala fide and arbitrary administrative action, it would be failing in its incumbent duty of judicial review conferred by the Constitution.

Referring to the "arbitrary and unreasoned nature of the instructions", the bench iterated that it is not clear from the instruction of the State as to what prompted it to issue such instruction. "If such an instruction/direction is given, there is little scope even for the Public Prosecutor not to act like a "post office", as deprecated in Bairam(supra), and to exercise his independent discretion not to file the application", said the bench.

"In view of the above discussions, the impugned order dated February 26, 2021 vide Memo No. (...) is set aside. Any action taken in the meantime pursuant to such order, including the application filed by the Public Prosecutor before the Third Additional District and Sessions Judge, Tamluk, Purba Midnapore, and the order passed by the said Sessions Judge on such application are consequentially set aside", directed the bench.

The bench even refused to stay the operation of this order on the request of the Advocate General, holding that no prima facie case for such stay is made out.