Karnataka High Court took notice of a report by Indian Express which stated that as many as 21 cases involving communal violence, and violence in the course of cow protection, were dropped by courts in Karnataka. The bench headed by Chief Justice Abhay Oka has directed the state government to place on record all withdrawal applications filed by prosecution in pursuance to the order of the government dated August 31.
The cases were withdrawn after an order by the BJP government dated August 31, 2020 whereby permission was granted for withdrawal of 61 cases under section 321 of CrPC. Section 321 of CrPC allows public prosecutor to withdraw from the prosecution of any person in respect of offences he is being tried for, with the consent of the court. Reportedly, the cases have been withdrawn between October and December 2020 for incidents that occurred between 2014 and 2019 in compliance with the state government order.
This order by the BJP government was challenged before the Karnataka High Court by People’s Union for Civil Liberties (PUCL) and during the course of hearing, the court, in its order dated December 21, 2020 directed that “no further steps shall be taken on the basis of the order dated 31st August 2020”. In an earlier hearing on December 1, the court had cautioned that “No Court is bound by such a decision taken to withdraw from the prosecution. Even if an application is made under Section 321 of Cr.P.C, the Courts are duty bound to assess whether prima facie case is made out or not and that the Court has power to reject the prayer.”
During the hearing the court had also reminded that Public Prosecutors are bound to invite attention of the concerned Court to this order when an application is made under Section 321 of Cr.P.C.
Further discussing such withdrawals of prosecution, the court had cited precedent set in SK Shukla and ors v. state of UP and ors, where the apex court had stated that “even if Government instructs to the Public Prosecutor to withdraw from the prosecution of a case, the latter after applying his mind to the facts of the case may either agree with the instructions and file a petition before the Court stating grounds of withdrawal or disagree therewith having found a good case for prosecution and refuse to file the withdrawal petition”. The court further stated that the prosecutor cannot act like a post box or act on the dictates of the government and has to act objectively as an officer of the court.
The cases were dropped on requests made by former Law Minister J C Madhuswamy (who is now the Minor Irrigation Minister), the BJP MLA from Bhatkal Sunil Naik, and Animal Husbandry Minister Prabhu Chavan, despite written objections by the state police, prosecution, and legal departments in each case.
Reportedly the beneficiaries were the BJP MP from Mysuru Prathap Simha, 206 members of Hindu groups, and 106 Muslims. The court records show that the Karnataka government approached trial courts soon after the August 31, 2020 order was issued, seeking withdrawal of the 21 cases. The IE report states that most of the cases were related to clashes between groups of Hindus and Muslims, mainly over Hanuman Jayanti celebrations or opposition to banners and posters.
Out of these, 5 cases were of communal violence that took place in the Honnavar region of Uttara Kannada district ahead of the 2018 Assembly elections and 110 persons were acquitted based on the government August 31 order, as per IE.
The Karnataka High Court December 1 order may be read here.
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