Public Prosecutor cannot act like post box: Karnataka High Court seeks government response in challenge to withdrawal of 61 cases against MLAs

A Public Prosecutor cannot act like a post box or submit to the diktats of the government when the executive directs withdrawal of criminal cases against legislators, the Karnataka High Court recently said..The prosecutor should act objectively as he/she is an officer of the court, the High Court added seeking the response of Karnataka government in a plea challenging a decision of the State cabinet to withdraw 61 criminal cases against elected Members of the State Legislature..The order was passed by a Division Bench of Chief Justice Abhay Shreeniwas Oka and Justice Vishwajith Shetty in a public interest litigation (PIL) petition filed by People's Union For Civil Liberties Karnataka..Citing the Supreme Court decision in the case of the SK Shukla & Ors vs State Of UP & Ors, the Court held:."It is held 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.....It is further observed that the Public Prosecutor cannot act like a post box or act on the dictates of the State Government and he has to act objectively as he is also an officer of the court.".It is further observed that the Public Prosecutor cannot act like a post box or act on the dictates of the State Government and he has to act objectively as he is also an officer of the Court.Karnataka High Court.The Cabinet decision to withdraw prosecution in 61 cases was taken on August 31, 2020 under Section 321 of Code of Criminal Procedure and read as follows:“The Government has granted permission for the withdrawal of prosecution of the 61 cases mentioned in the annexure under the section 321 of CrPC. The Director, Department of Prosecutions and Government Litigation is suggested to take appropriate steps to file necessary applications before the concerned Courts where the 61 cases, mentioned in the Annexure is pending, for their withdrawal.”.The petitioner contended that the decision flew in the face of the Supreme Court order in Ashwini Kumar Upadhyay v. Union of India. .The High Court said that when an application under section 321 of the Code of Criminal Procedure (CrPC) is made (for withdrawal of prosecution), action on that application can be taken only with the permission of the court. ."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," the order said..No court is bound by the government decision to withdrawn from prosecution.Karnataka High Court. .The High Court also directed that a copy of the present order be served on the 61 public prosecutors to whom the government had given instructions to withdraw the prosecution. "The Public Prosecutors are bound to invite attention of the concerned Court to this order when an application is made under Section 321 of CrPC," the Court said. .The case will be taken up next on December 21. .[Read Order]