Tuesday 22nd Jan 2019
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Setback to Withdrawal of Terror Cases Keeping poll promises or mocking with people?

Cover Story

, by SYYED MANSOOR AGHA

If the Samajwadi Party is really interested in getting the innocent persons out of jails, it may be done within next six or seven months otherwise excuses of âhurdle by the courtsâ will not help it in 2014, concluded SYYED MANSOOR AGHA on the interim order of Lucknow Bench of Allahabad High Court on the governmentâs half-hearted move to release innocent persons implicated in terror cases.

Fixing results before the match starts is not a monopoly of sports persons; matches are allegedly fixed in courts as well. Sometimes a plaint is prepared in a way to get an adverse verdict and at many times pleaders play the trick even in court rooms. What happened in Barabanki Court and now in Lucknow Bench of Allahabad High Court are glaring examples of this fixing. It is now an established fact that the Government counsel in Barabanki Court did a bungling when he presented a case classified by the court as ‘ambiguous’ resulting in summery dismissal of the application to withdraw the terror case against Khalid Mujahid and Tariq Qasmi. The same is the story of interim order of Lucknow Bench of Allahabad High Court on the government’s half-hearted move to release innocent persons implicated in terror cases, all belonging to the minority community and languishing in jails from Mayawati’s days. Senior cabinet minister of Akhilesh Yadav government Azam Khan has obliquely endorsed the fact that the cases were ‘mishandled’ in the courts. After 7 June verdict he is reported to have said, “The Government would examine its shortcomings in presenting its side in the court.”

“Shortcomings” is a word used by the Minster to shield the “deliberate bungling” of Akhilesh administration over which the novice chief minister has no control and his experienced senior Ministers, who were expected to guide him, are pleased in petty politics and enjoying lavish events from Lucknow to South Africa.

Bungling, as indicated by senior Supreme Court Advocate Mushtaq Ahmad Alig, may be read even by a layman in law. The Law Department of UP “deliberately” ignored the requirements of getting permission from the Union Government before initiating the process of withdrawal of the cases. Before putting an application in the court, the Law Department is required to go deeply in every legal aspect, and it cannot be believed that legal experts in the department, including senior advocates presenting the cases “in-adherently” skipped guidelines so clearly mentioned in the law book. I quote the relevant section of law on which edifice of PIL stands and upon which recent direction has come:

Section 321 of The Code of Criminal Procedure, 1973, reads as under:

321. Withdrawal from prosecution

The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time 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:

Provided that where such offence –

I. was against any law relating to a matter to which the executive power of the Union extends, or

II. was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or

III. involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or

IV. was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.

The Supreme Court has given stringent directions in regard of these provisions and it cannot be supposed at any cost that law officers of UP were not aware of the provisions and direction of the SC. Also, it cannot be assumed that Law Department may have kept political bosses in the dark. One can only infer that leaders of SP, who swore to be sympathetic to the victims, their families and the community, are not serious about their promises and simply befooling people. When SP bosses wanted to withdraw cases against Phoolan Devi and Raja Bhaiya, it was smooth selling in courts. They also bailed out BJP leader Varun Gandhi in hate speech case. One finds the way if he has a will.

In the Barabanki Court, the bungling was even more evident. The public prosecutor did not annexed affidavit of the D.M. with the application, which was “vague” and “ambiguous”. The application was summarily dismissed, and the political gimmick of applying for withdrawal and “denying by the court” is not quite evident. The CM and his guide Minister told the people innocently: ‘what can we do? It is court’s order. We will consider going for appeal.’ News channels and newspapers flashed the news without going in details and telling the people that the application was moved merely to get rejected. It served the political class. 

The Allahabad HC dismissed a PIL in the matter earlier, but this time it has referred the case to a bigger bench. After bungling in Barabanki Court it is said that this time the UP Government is more concious. On 5 June the government issued orders to withdraw cases against 16 terror accused, including four each from Lucknow and Kanpur, two from Bijnore and three from Rampur jails facing charges ranging from sedition to terrorism. Government orders (GOs) have already been issued for the purpose.

Paravez Iqbal Siddiqui of TNN reported from Lucknow, “The government also appears determined to ensure that the move does not get scuttled for lack of preparation on its part, as happened when such a plea against Tariq Qasmi was dismissed by a Barabanki court on May 10.”

”This time, the government has directed public prosecutors to seek advice from law experts, departmental seniors or even engage private consultants if required to move a detailed application before the court for withdrawal of charges against the 16 terror accused.”

While issuing orders for stay, the High Court has given six-week time to the Centre, and the UP Government to file reply in the case and 4-week time for rebuttals. The order does not bar to seek permission from the Centre and grant by the Centre. The Law Department has six-week time to prepare its response in the High Court. It will be interesting to see how Union Home Ministry deals with the U.P. Government’s application if moved indeed. In the meanwhile it may also be advised that instead of going for withdrawal of cases, the State Government must take steps to expedite the cases in the courts and order its prosecutors to be fully alert and not to seek adjournment. The State Government has recently tested its salt in bailing out the accused as it did in Varun Gandhi’s case. So, we believe if the Samajwadi Party is really interested in getting the innocent persons out of jails, it may be done within next six or seven months otherwise excuses of “hurdle by the courts” will not help it in 2014.

[The writer, a senior journalist and Gen. Sec. Forum for Civil Rights, can be contacted at syyedagha@hotmail.com]



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