Supreme Court 'Clarifies' Uttarakhand HC Directives For Streamlining Procedure For Withdrawal From The Prosecution

The Supreme Court has disposed a Special Leave Petition filed by Uttarakhand Government against certain directions issued by the Uttarakhand High Court for streamlining the procedure for withdrawal from the prosecution.

"If any aspect of the directions in the impugned order were to run contrary to the law laid down by this Court in the aforesaid judgments, naturally, the law laid down by this Court would prevail and to the extent a direction may run contrary to the same it will not have force of law.", the bench comprising Justices Sanjay Kishan Kaul and R. Subhash Reddy said. The court noted that the directions were issued by Single Judge with the avowed object of maintaining the independence of the prosecuting agency as well as the independence of the judiciary.

This is after, Solicitor General Tushar Mehta, who appeared for the state, expressed his concern that the directions may run contrary to judgments in Sheonandan Paswan v. State of Bihar - (1987) 1 SCC 288  and Abdul Karim v. State of Karnataka – (2000) 10 SCC 710, Bairam Muralidhar v. State of A.P. (2014) 10 SCC 380 and S.K. Shukla v. State of U.P. (2006) 1 SCC 314.

Justice Ravindra Maithani of the Uttarakhand High Court had issued the following directions while disposing a petition filed by the state against the Trial Court order rejecting their application filed under Section 321 CrPC for withdrawal from the prosecution has been rejected. 

1.  Whenever State Government directs for withdrawal from the prosecution under Section 321 of the Code, entire material on the basis of which, such decision has been taken (which includes, letter of recommendation for withdrawal, any report from intelligence agency, etc.) should also be forwarded to the in-charge Prosecutor.
2. The Department of Law, Government of Uttarakhand, while giving opinion on any matter pertaining to Section 321 of the Code, shall categorically cite the statutory provisions as well as the principles laid down by the Courts on the subject. Department of Law shall base the opinion on statute and/or precedents.
3. The in-charge Prosecutor shall form his INDEPENDENT OPINION on the basis of material supplied to him by the State Government. He shall file application under Section 321 of the Code only when he is satisfied that the withdrawal from the prosecution would subserve the cause of public interest.
4. The in-charge Prosecutor shall submit to the Court entire material received by him from the State Government alongwith his OPINION for withdrawal from the prosecution. In his 19 application he shall also set out in brief as to what material did he consider to form his OPINION.
5. In case, the in-charge Prosecutor, after collecting the material supplied to him by the State Government, is of the opinion that the withdrawal from the prosecution is not in public interest, he will return the material to the State Government alongwith his OPINION.
6. In case, the in-charge Prosecutor himself considers that the prosecution should be withdrawn, he will submit his report to the State Government seeking permission to withdraw from the prosecution. He shall also submit entire material that has been handed over to him officially, on the basis of which, he had formed such opinion. Once permission is accorded by the State Government, the in-charge Prosecutor shall move application under Section 321 of the Code to the Court alongwith entire material as well as the permission of the State Government.
7. The Court while deciding an application under Section 321 of the Code, shall also consider the material placed before it by the in-charge Prosecutor, to examine as to whether the application has been filed in good faith and it is in the public interest and justice. The Court must also consider the material to see whether the withdrawal would advance the cause of justice and not to thwart or stifle the process of law.
8. In case the in-charge Prosecutor moves an application under Section 321 of the Code, without following the above guidelines, such application shall not be entertained by the Court and it shall be rejected summarily.

These directions were issued after the judge noted that in the instant case, in-charge Prosecutor had opined against withdrawal from the prosecution and it was after the 'endorsement' by the Chief Minister, the cases were withdrawn. 

"Chief Minister cannot be a law unto himself. Justice cannot be denied to those who could not reach to the political leaders. Political leaders cannot interfere with the course of justice. It may be a challenge to the independence of judiciary. In the instant case, no one formed the opinion that prosecution should be withdrawn except the Chief Minister. The in-charge Prosecutor had opined against withdrawal from the prosecution. The decision of the Chief Minister is not based on any law. Neither the State (Except Chief Minister) nor the in-charge Prosecutor formed any opinion to withdraw from the prosecution", the judge had remarked.

Case: State Of Uttarakhand vs. Bhuwan Chnadra Joshi [SLP 5962- 5963/2020]
Coram: Justices Sanjay Kishan Kaul and R. Subhash Reddy

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