Section 494 of the Code of Criminal Procedure is the source of the power of Public Prosecutor to withdraw a criminal case in the ground of political Harassment.
this section also said about the effect of such withdrawal after and before of framing charges against the accused. But this section is totally silent about the process and ground of such withdrawal of criminal cases.
Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.
A Public Prosecutor can seek withdrawal of the prosecution only when instructed by the government in writing.
Whether withdrawal of cases are inconsistent with the constitution?
Articles 26 and 27 of the constitution of Bangladesh provide equality before law and equal protection of law. First of all we need to scrutinize the provisions of Article 27 as to whether this provision of the constitution gives any exemption to the political activists or not. In this regard, Article 27 ensures equality before law by providing that all citizens are equal before law and are entitled to equal protection of law. So, it is evident that the political activists or leaders are no exception to Article 27 of the constitution. Rather the withdrawal of cases under section 494 of the Code of Criminal Procedure is inconsistent with the spirit of Article 27 and violation of the fundamental rights of equality before law and thereby liable to be ineffective. As Article 26 provides that all existing laws inconsistent with the provisions of this Part (Part-III: Fundamental Rights) shall, to the extent of such inconsistency, become void on the commencement of this constitution and the State shall not make any law inconsistent with any provisions of this Part and any law so made shall, to the extent of such inconsistency, be void.
Sometimes, withdrawal of a criminal case may be a matter of public concern particularly if it is done without lawful or reasonable grounds.
The prosecutor has to make out some grounds, which would show that the prosecution is sought to be withdrawn. A criminal case is supposed to be filed only when there is a likelihood of a successful prosecution. Thus, in principle, there can be no grounds for withdrawal. However, the prosecution might not be able to produce sufficient evidence to sustain the charge or that the prosecution does not appear to be well-founded or that there are other circumstances which clearly show that the object of administration of justice would not be advanced or furthered by going on with the prosecution, or a settlement arrived at in court or in a manner acceptable in law may be the grounds for withdrawal
In the case of Shamsul Alam vs State [(1995) 47 DLR 476], the High Court Division held that withdrawal on consideration of any cogent ground or materials is not only illegal but contrary to the well established principles of criminal justice and liable to be quashed. In Altab Hossain vs Kobed Ali [(1997) 49 DLR 589] it was disclosed that the Magistrate accorded permission for withdrawal simply on the ground that the government had instructed the Deputy Commissioner concerned for taking steps for withdrawal of the case. The High Court Division held that such mechanical order of withdrawal of the case is contrary to the provision of s 494 of the Code and then directed the magistrate to proceed with the case in accordance with law.
it is the prominent case regarding withdrawal of criminal cases.
Surjit Singh vs Raj Pal And Anr. on 20 December, 1965Equivalent citations: AIR 1966 P H 473, 1966 CriLJ 1327Bench: D Falshaw, H Khanna
