Abdur Rob Bakaul Vs. The State and another [4 LNJ (2015) 395]

Case No: Criminal Revision No. 1326 of 1995

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mrs. Sakila Rowshan,Mrs. Sharmina Haque,Mr. Md. Showardi,,

Citation: 4 LNJ (2015) 395

Case Year: 2015

Appellant: Abdur Rob Bakaul

Respondent: The State and another

Subject: Withdrawal of a Case,

Delivery Date: 2014-04-07


HIGH COURT DIVISION
(CRIMINAL REVISIONAL JURISDICTION)
 
Syed Md. Ziaul Karim, J.
And
Ashish Ranjan Das, J
.

Judgment on
07.04.2014
}
}
}
}
Abdur Rob Bakaul
...Victim-Petitioner
-Versus-
The State and another
. . .Opposite Parties
 
 
Code of Criminal Procedure (V of 1898)
Section 494
Personal murderous instinct or blood thirstiness cannot be branded as case of political character so as to withdraw a person from prosecution characterizing the same as being instituted for political reason....(16)
 
Code of Criminal Procedure (V of 1898)
Section 494
The Magistrate or Judge while giving a decision on withdrawal should consider at what point of time the accused claims the benefit of the guidelines i.e. on the ground of political reason. The Judge should also consider whether in withdrawing the case against some accused persons, far less the principal accused, whether the case against the remaining accused becomes weaker. If a case is withdrawn against some of the accused persons leaving other accused persons then equality before law stands nugatory. . . . (17)
 
Code of Criminal Procedure (V of 1898)
Section 494
The persons in judicial authority giving decision should not only be cautious in individual case but must consider the general impact of such decision on the society. In our view, in cases involving heinous offences as mentioned in the guidelines of the Home Ministry should not be withdrawn against principal accused, as, in that event, people at large would lose credibility in the judicial system and they would point a finger towards the Court challenging its impartiality. . . . (18)
 
Code of Criminal Procedure (V of 1898)
Section 494
From the language of section 494 of the Code, it is clear that the responsibility of the Court is to decide, whether to grant or not to grant consent for withdrawal, and the discretion can be properly exercised only if the application for withdrawal is considered judicially. . . . (20)
 
Code of Criminal Procedure (V of 1898)
Section 494
Judicial exercise of the discretion means consideration of all the facts and circumstances of the case available to the Court and also of the grounds on which the withdrawal is sought. The very word ‘’consent’’ occurring in section 494 of the Code clearly indicates that it is not to be considered lightly on the application of the Public Prosecutor without a careful and proper scrutiny of the grounds on which the application is based. . . . (20)
 
Code of Criminal Procedure (V of 1898)
Section 494
The consent mentioned in section 494 of the Code of Criminal Procedure is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case. In the instant case no reason/ground has been assigned for the withdrawal of the case and there is no indication that materials were considered before taking the decision and the learned Judge committed illegality in allowing withdrawal under the aforesaid circumstances. . . . (22)
 
RE. Meunier (1894) 2 QB 415; Schtracks Vs. Government of Israel (1962) 3 All ER 529; 49 DLR (AD) 143; 2000 BLD (AD) 54; 52 DLR (AD) 8; 1996 BLD 418; 49 DLR 589; Bakshu Mia Vs. Govt. of Bangladesh and others, 30 DLR (SC) 228; Abdul Wahab Talukder alias Mohd. and others Vs. State and another, 30 DLR (SC)-278- 279; Sikandar Ali Sikdar Vs. State and others, 31 DLR (AD) 135; Motiur Rahman Vs. The State, 35 DLR (AD) 330 and Md. Habibur Rahman Vs. Mosfiqur Rahman and others, 37 DLR 307 ref.
 
No one appears,
. . . For the victim-petitioner

Mrs. Sakila Rowshan, D.A.G. with
Mrs. Sharmina Haque, A.A.G. and
Mr. Md. Showardi, A.A.G.
. . .For the State-opposite party no.1.

No one appears,
. . . For the opposite party nos. 2-8.
 
Criminal Revision No. 1326 of 1995

JUDGMENT
Syed Md. Ziaul Karim, J:
 
By this Rule, victim-petitioner has challenged the legality and propriety of the order dated 22-01-1995 passed by learned Additional Sessions Judge, Fourth Court, Comilla, in Session Trial Case no.  31 of 1994 and order dated 22-09-1990 passed by learned Sessions Judge, Chandpur in Session Trial Case no. 23 of 1990 arising out of Matlab P.S. Case no. 03 dated 16-05-1983 corresponding to G.R. no. 80 of 1983 under sections 148, 149, 379, 436, 302, 34 of the Penal Code allowing the prayer for withdrawal of prosecution from accused–opposite parties under sections 494 of the Code of Criminal Procedure( briefly as the Code).

Facts in brief are that on 16-05-1983 at 16:30 hrs. one Akfat Ali Bakaul as informant lodged a first information report by producing three dead-bodies namely his son Abdus Sattar, Abdul Wadud son of Abdul Wahab and Dena Bakaul son of late Ashraf Ali at the Police Station alleging that on 15-05-1983 following night seven dacoits were held with arms and were produced in Court by one Aslam Bepari of village Boro Char and a case was registered to that effect and it was suspected that one accused Sadim Ali Howlader of Bhedarganj Police Station under the then Faridpur district had association with the said seven dacoits. Due to handing over the dacoits to law enforcing authority Sadim Ali Howlader in order to take revenge along with 100/150 of his supporters being member of unlawful  assembly armed with Rifle, ballam, lathi, Dao, Chena, tata etc. attacked the houses of villagers of Borochar alias Charkasim on 16-05-1983 at midnight and started looting at that the informant along with his son Abdus Sattar, Abdul Wadud son of Abdul Wahab Dhali along with 40/50 others of the village tried to flee away to save their lives by boat from Eastern corner of the village of Meghna river. At that while the informant and others were on the mid of the river the accused party opened fire at them on the boat from the bank of the river causing death of Abdus Sattar son of the informant, Abdul Wadud son of Abdul Wahab Dhali and Denu Bakaul, son of late Ashraf Ali and causing bullet injury on Abdur Rab son of deceased Dera Bakaul who was subsequently treated at Chandpur Hospital. The raiders at the time of their raiding activities caused grievous injuries on 50/60 co-villagers and looted away valuable articles including gold ornaments, cash money, cattle and goats and destroyed crops, trees and the raiding party also burnt about 200 living huts including the houses of co-villagers Karam Ali Sarder, Shamsul Sardar, Halim Pradhania, Abdul Sardar, Selim Badsha Bachchu, Nasir Bepari, Tabdil Sardar, Ayub Ali Master, Piyar Ahmed Gazi, Muslim Bakaul, Ali Ahmed Bakaul, Razzak Bakaul, Habu Bepari and many others.

The CID Police after investigation submitted charge-sheet accusing forty seven accused including the accused opposite parties under Sections 148, 149, 379, 436, 302, 34 of the Penal Code. After submission of the Charge-sheet the accused opposite party nos. 2-8 were arrested. Later, they were granted bail from the Court below.

Eventually the case was taken up for trial by the learned Additional Sessions Judge, Fourth Court, Comilla. Meanwhile, eleven witnesses were examined. Thereafter the Ministry of Home Affairs by its memo no. ১৬-এম-১২/৮৭ (আইন) dated 09-01-1988 directed the Public Prosecutor to withdraw the case against accused opposite party  no. 8 Abdul Khaleq under Section 494 of the Code. Accordingly the Public Prosecutor filed application to that effect and the learned Judge of the Court below allowed withdrawal of the case against the accused opposite party no. 8 by the impugned order dated 22-09-1990.

Thereafter the Ministry of Home Affairs by its memo no. ৩৮ -এম-১২/৮৭ (আইন) তারিখ ১৪-০১-১৯৯৩ directed the Public Prosecution to withdraw the case against thirteen accused including accused opposite party nos.2-7 under section 494 of the Code. Accordingly the Public Prosecution filed an application to that effect and the learned Judge by the impugned order dated 22-01-1995 allowed withdrawal of the case against the accused opposite party nos.2-7. 

Feeling aggrieved one of the victim namely Abdul Rob Bakaul who sustained bullet injuries and lost his father in the said incident preferred the instant application and obtained the present Rule.

No one appears on behalf of the victim-petitioner to support the Rule.

In view of the facts, this is an old revision of 1995, we are inclined to take it up for disposal on merit considering the materials on record.

The learned Deputy Attorney General appearing for the State-opposite party no. 1 submits that the impugned memos issued by the Ministry of Home Affairs are contrary to the guide line settled by the same Ministry on 01-11-2001 where it has been decided that the case against the Political leaders and Political persons shall be withdrawn if the case were initiated on Political reason excepting the cases involving murder, rape, arson and with fire arms which the learned Sessions Judge failed to consider and as such the impugned orders are liable to be set-aside.

In order to appreciate her submissions we have gone through the record and given our anxious consideration to her submissions.

At a very out-set we shall first consider the orders of withdrawal dated 14-01-1993 and 09-01-1988 and subsequently the Guide line of the Ministry dated 01-11-2001 which read as hereunder:
গণ প্রজাতÇএী বাংলাদেশ সরকার
স্বরাষ্ট্র মনÇএণালায়,
আইন শাখা z
স্বারক নং ৩৮-এম-১২/৮৭(আইন)  তাং১৪-০১-১৯৯৩
বিষয়ঃ  মতলব (চাঁদপুর) থানা মামলা নং ৩(৫)৮৩ ধারা ১৪৭, ১৪৮, ১৪৯, ৩৭৯, ৩০২, ৩৪ হইতে ১৩ (তের) জন পুলিশ কর্মচারীকে অব্যাহতি প্রদান বিষয়কz
সূত্রঃ     তাহার কার্যালয়ের  স্বারক নং ৫-৮/৯১-১৪৩/জে, এম, তাং ২৩-০২-৯২ ইংz
উল্লিখিত বিষয় ও সূত্রের বরাতে নিম্মÀ স্বাক্ষরকারী আদিষ্ট হইয়া  জানাইতেছেন যে, সরকার উল্লিখিত মামলা হইতে অাসামী (১) নায়ক কং নং  ০২৭৪ মোঃ  সফিকুর রহমান, (২) কং নং  ০১৬৯  মোঃ  মোজাম্মেল হক, (৩) কং নং ০১৮৬ মোফাজ্জেল  হোসেন, (৪) কং নং ০২৮৭-সাহাবুদ্দিন,  (৫) কং নং ০৩০১ মোঃ  আনোয়ার হোসেন (৬) কং নং ০২৪৯ মোঃ ইছাক চৌধুরী, (৭) কং নং ০৩৪৯  মোঃ   নজর্রল  ইসলাম, (৮) কং ০৪০২  মোঃ   নাছির  উদ্দিন,  (৯) কং ১৭২৩ নিরজনজন সুত্র ধর, (১০) কং  ১৩৩৬ মোঃ   সেলিম  মিয়া  (১১) কং ১০২১ মোঃ আবু   ছায়েদ , (১২) কং ১০৩৭ মোঃ মহসীন  এবং  (১৩) কং ৬২৯ মোঃ  খলিলুর রহমান দের বির্রদ্ধে  আনিত   অভিযোগ  প্রত্যাহার  করার  সিদ্বা¿¹ গ্রহন  করিয়াছেনz
২) উপযুও্র আদালতের অনুমতিএ্রমে (যে আদালত এই মামলার বিচার করিতে উপযুও্র) ফৌজদারী   কার্য্যবিধির ৪৯৪ ধারার বিধান মোতাবেক মামলার বর্ণিত আসামীদের বির্রদ্ধে আনিত অভিযোগ প্রত্যাহার করার জন্য বিজ্ঞ সরকারী কৌশুলীর মাধ্যমে প্রয়োজনীয় পদক্ষেপ গ্রহন করার জন্য তাহাকে অনুরোধ জানানো যাইতেছে z
৩) বর্ণিতবসহায় উপরিল্লিখিত মামলার বর্নিত আসামীদের বির্রদ্ধে আনিত অভিযোগ প্রত্যাহার  সম্পর্কে গৃহীত ব্যবসহার ফলাফল অত্র মÇএনালয়কে অবহিত করার জন্য অনুরোধ জানানো যাইতেছেz
জেলা ম্যাজিষ্ট্রেট,
চাঁদপুর,
স্বাক্ষর
অস্পষ্ট
সহকারী সচিব z
স্বারক নং -৫-৮/৯৩-১৪৬          ৩১-০১-৯৩
২৩/২/১৪০১ বাং
অনুলিপি সদয়  অবগতি   প্রয়োজনীয়  ব্যবসহা  গ্রহনের জন্য প্রেরণ করা হইল  z
পি,পি, চাঁদপুর z তাহাকে উপরোও্র মামলার বিষয়ে প্রয়োজনীয় ব্যবসহা গ্রহন করতঃ গৃহিত ব্যবসহা সত্বÚর অত্র কার্যালয়কে অবহিত করাইতে  অনুরোধ করা হইল
স্বাক্ষর
চাঁদপুর,
অস্পষ্ট
অতিরিও্র জেলা ম্যাজিষ্ট্রেট
চাঁদপুর
গণ প্রজাতÇএী  বাংলাদেশ সরকার
স্বরাষ্ট্র মনÇএণালায়,
        আইন শাখা
স্বারক নং ১৬-এম-১২/৮৭(আইন) তাং ০৯-০১-১৯৮৮
২৪-০৯-১৩৯৪ এর
বিষয়ঃ ফৌজদারী কার্যবিধি ৪৯৪ ধারা মোতাবেক মতলব থানা মামলা নং ৩(৫) ৮৩ ধারা ১৪৭, ১৪৮, ১৪৯, ৩৭৯, ৩০২, ৩৪ দন্ডবিধি   প্রত্যাহার  করণ প্রসংগে z
সুত্রঃ তাঁহার স্মারক নং ৫-৮ /৮৭ (৪১৮/জে, এম, তারিখ  ৯-৩-৯৪ বাং
২৪-৬-৮৭ ইং
নিম্ন স্বাক্ষরকারী  আদিষ্ট হইয়া জানাইতেছেন যে, সরকার  উল্লেখিত   মামলাটির আসামী  অাবদুল খালেক, প্রাও্রন  এস, ডি, পি, ও ,শরীয়তপুর এর বির্রদ্ধে আনীত  অভিযোগ  প্রত্যাহার  করার সিদ্ধা¿¹  গ্রহন  করিয়াছেন z
২z সুতরাং উপযুও্র কোর্টের (যে কোর্টে এ মামলা  বিচার করিতে উপযুও্র) অনুমতি গ্রহন করিয়া মামলার আসামী আবদুল খালেক প্রাও্রন এস, ডি, পি, ও, শরীয়তপুর এর বির্রদ্ধে অভিযোগ প্রত্যাহার করিবার জন্য  সরকারী কৌশুলীর মাধ্যমে পদক্ষেপ গ্রহন করিতে তাঁহাকে অনুরোধ করা হইল z বিশেষভাবে উল্লেখ্য যে, মামলার  এই আসামী অাদালতে হাজির থাকিলে এবং মামলাটি বিচারের জন্য উপযুও্র কোর্টে বদলী হইলেই এ প্রত্যাহারাদেশ কার্যকর হইবেz
৩z মামলাটি প্রত্যাহার সংএ্রা¿¹ গৃহীত ব্যবসহার ফলাফল অত্র মনএণালয়কে অনতিবিলম্বে অবহিত করিতে তাহাকে অনুরোধ করা হইল z
স্বাক্ষর/-অসস্পষ্ট
(এস,এম, মতিউর  রহমান)
সনিয়র সহকারী  সচিব(আইন)
জেলা প্রশাসক
চাঁদপুর z
স্মারক নং -৫-৮/৮৮-৯০/জে, এম,       তারিখ ৪-২-৮৮
২০-১০-৯৪ বাং
অনুলিপি অবগতি ও বিহিত ব্যবসহা গ্রহনের জন্য প্রেরিত হইলঃ-
১z পি, পি, চাঁদপুর z তাঁহাকে নির্দেশ মোতাবেক উপযুও্র কোর্টের অনুমতি গ্রহন করিয়া প্রয়োজনীয় পদক্ষেপ গ্রহনের জন্য অনুরোধ করা হইল z
স্বাক্ষর/- অসস্পষ্ট
অতিরিও্র  জেলা  ম্যাজিষ্ট্রেট,
চাঁদপুর

We find that Ministry of Home Affairs vide Memo no. Sha:Ma(Ain-1)Bibidha-20/ 2001/470 (64) dated 1-11-2001 settled guidelines for withdrawal of cases against political persons as:

"যে সব রাজ~~নতিক নেতৃবন্দৃz কর্মীবৃন্দের বির্রদ্ধে মূলতঃ রাজ~~নতিক কারণে, মামলা র্রজু করা হয়েছে সেসব মামলা যদি খুন, ধর্ষণ, অগ্নিসংযোগ, অসএ সংএ্রা¿¹ না হয় তবে এ মামলাগুলো সরকার কর্তৃক প্রত্যাহার করার পদক্ষেপ গ্রহণ করা যেতে পারে z জেলা প্রশাসকের নেতৃত্বে এসব মামলা গুলো পরীক্ষা করা যেতে পারে

Although withdrawal orders were passed before the guidelines came into effect, but the same being the procedural matter and the revision is pending before this Court, so the same have the retrospective effect upon the orders and the case.

The guidelines quoted above clearly prohibits withdrawal of a murder case like the present one. So, judging by these guidelines, the direction of the same ministry contained in the letters dated 14-01-1993 and 09-01-1988 for withdrawal of the case against accused opposite parties are palpably contradicting.

However, we have considered the matter from a broader perspective along with the materials on record.

As we read and understood, the guidelines are meant to give relief to persons who have been implicated for political reasons, not for heinous penal offences. Implicating for political reason means that where a person, because of his political stand, is engaged is activities in dissension from the Government. But this memorandum if applied to all cases, then it cannot be ruled out that veteran criminals may escape trial of heinous offences by pleasing the Ministry as he/she is a political person. Such withdrawal of case will lead to anarchy in the administration of justice and in the society Politicians, if they actually believe themselves as politicians, they must have an ideal character so as to be followed by the future generation. In the book ‘ A Dictionary of Law, Fourth Edition, published by Central Law Book House, political offence has been defined as ‘ an offence that is of a political character, so that the alleged offender cannot be extradited or surrender as a fugitive offender. In the decision of RE. Meunier (1894) 2 QB 415 it has been held that in order to constitute an offence of a political character, there must be two or more parties in the State, each seeking to impose the Government of its own choice on the other and that if the offence is committed by one side or the other, in pursuance of that object, it is a political offence, otherwise not. In the case of Schtracks vs. Government of Israel(1962) 3 All ER 529 it has been held ‘but, if the Government stands apart and is concerned only to enforce the criminal law that has been violated by the contending political organization, that is no reason why the fugitive should be protected on the grounds that they are political offenders. In the case of Harbhajem Singh vs. Union of India, AIR 1987 SC 8, political ground has been characterized as " It suggests vague and fanciful attitude". Case of political character, as we see, has a heavenly meaning but from the guidelines it appears that Ministry’s memorandum is being applied for harbouring the alleged veteran criminals. If section 494, CrPC be used like this, then it is time to think whether section 494, CrPC should at all be kept in the Code or it should be omitted. Personal murderous instinct or blood thirstiness cannot be branded as case of political character so as to withdraw a person from prosecution characterizing the same as being instituted for political reason.

From the reading of the aforesaid guidelines, it appears to us that political leaders aswellas the political workers have an advantage over other accused persons if a case be initiated only on political reason, that is out of a political movement. If any political leader or worker be implicated with allegation of omnibus nature and if political leaders  and workers can prove that they are political leaders and workers and take such plea at the initiation of the proceeding i.e. when they appear before the Magistrate or officer-in-charge or investigating officer, either for bail or for some other purpose, then it may be considered that the case was or is initial out of political vengeance only to harass the accused by any means. But when the case is at trial stage, after completion of investigation and no where the accused disclosed that he is a political person, this defence should in no way be available to any political leaders or workers. The benefit given under the guidelines is not available to a political leader or a political worker when he or she is involved in a case of murder, rape, arson and with fire-arms. The Magistrate or Judge while giving a decision on withdrawal should consider at what point of time the accused claims the benefit of the guidelines i.e. on the ground of political reason. The Judge should also consider whether in withdrawing the case against some accused persons, far less the principal accused, whether the case against the remaining accused becomes weaker. If a case is withdrawn against some of the accused persons leaving other accused persons then equality before law stands nugatory.

In the instant case we find that the principal accused persons have been exonerated by the learned Sessions Judge on accepting the memorandum of the Ministry of Home Affairs without assigning any reason. It should be borne in mind that near and dear ones, of the informant/complainant either raped or murdered or his property with belongings when gutted or subjected to brutality by arson or firearms, are the victims of the offence directly, as opposed to any one of the Secretary of the Ministry of Home Affairs or the Judge or the Magistrate who issued the memorandum or allowed the application for withdrawing the case and accorded permission of the same. So, the persons in judicial authority giving decision should not only be cautious in individual case but must consider the  general impact of such decision on the society. In our view, in cases involving heinous offences as mentioned in the guidelines of the Home Ministry should not be withdrawn against principal accused, as, in that event, people at large would lose credibility in the judicial system and they would point a finger towards the Court challenging its impartiality.

From the directions of the Ministry we find no cogent reasons were assigned for withdrawal. But the learned Judge, in omnibus manner, without applying his judicial mind, allowed withdrawal of the case against accused opposite parties. In the facts and circumstances of the case, the application made by the Public Prosecutor for withdrawal from the prosecution of the principal accuseds amounts to an attempt to throttle the prosecution and to interfere with the normal course of justice. This is not at all a case where there is no evidence against these accuseds as could not sustain a conviction. The real question in the case is, whether the prosecution witnesses are worthy of credit and whether there are question of circumstances the benefit of which should go to the accuseds. These are questions which can only be determined by a proper trial and this function of the trial Court cannot be permitted to be pre-empted at a preliminary stage by an application of the kind made in this case by the Public Prosecutor.

From the language of section 494 of the Code, it is clear that in the last analysis, the responsibility of the Court is to decide, whether to grant or not to grant consent for withdrawal, and the discretion can be properly exercised only if the application for withdrawal is considered judicially. Judicial exercise of the discretion means consideration of all the facts and circumstances of the case available to the Court and also of the grounds on which the withdrawal is sought. The very word ‘’consent’’ occurring in section 494 of the Code clearly indicates that it is not to be considered lightly on the application of the Public Prosecutor without a careful and proper scrutiny of the grounds on which the application is based. In the decisions reported in 49 DLR (AD) 143, 2000 BLD (AD) 54= 52 DLR (AD) 8, 1996 BLD 418= 49 DLR 589, besides other numerous decisions of India and Pakistan, it was held that non-compoundable offences cannot be withdrawn and the learned Magistrate or, to that effect, the learned Sessions Judge should pass a judicial order  applying his judicial mind. On a consideration of the impugned orders, evidence of eleven witnesses, we find that the learned Judge did not apply his judicial mind and passed the orders as if doing his administrative day-to-day work.

Here in the present case we have reprod-uced above the orders of the Government for the withdrawal of the case and it appears that no ground has been shown for the same. The government’s order does not contain anything that there was consideration by the authority of the materials before taking the decision for the withdrawal. The only word used for the withdrawal is  “প্রত্যাহার করার সিদ্ধা, গ্রহন করিয়াছেন ”  So it cannot be found from the letters that there was application of mind and consideration of the materials available for the withdrawal of a case. The Public Prosecutor also submitted an application praying for withdrawal simply stating that the Government has decided to withdraw. And it appears that the learned Judge without assigning any reason allowed the withdrawal. This order of the learned Judge it appears is a mechanical order. He has not followed the provisions of section 494 of the Code and he has also not considered the decision reported in the case of Matiur Rahman vs. State reported in 35 DLR(AD) 329. So from the Government order aswellas from the petition field by the Public Prosecutor and the order of withdrawal passed by the learned Judge it appears that the  provisions of section 494 of the Code has not been followed by the concerned Judge and there was no consi-deration of the materials by the Government  in their decision. In that view of the matter we hold that such order of withdrawal cannot be supported and maintained.

It is well settled that the consent mentioned in section 494 of the Code of Criminal Procedure is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case. In the instant case no reason/ground has been assigned for the withdrawal of the case and there is no indication that materials were considered before taking the decision and the learned Judge committed illegality in allowing withdrawal under the aforesaid circumstances.

In the Case of Bakshu Mia vs. Govt. of Bangladesh and others 30 DLR(SC) 228 held:

" Criminal Procedure Code(V of 1898) S.494. 
Combination of prayer by the P.P. for withdrawal from prosecution and the consent of the Court allowing withdrawal make the order of withdrawal complete- Court’s order on the question of withdrawal to be based on reasonable grounds- Recording of reasons by the Court even though not required is desirable to do so. Some materials on record for giving consent must exist.
The section says that the public prosecutor is to decide and ask for withdrawal from the prosecution and the Court is to give its consent. The public prosecutor prays for the withdrawal of the prosecution either as a whole, or of some accused persons or some or all offences. The section gives no indication asto the grounds on which the public prosecutor is to apply. It does not also indicate any consideration on which the Court is to grant its consent. The language is wide enough and a reading of the section shows that a combination of the prayer and the consent makes a complete order of the withdrawal. Though consent is a necessary part of the order of withdrawal, the decision is that of the public prosecutor, and it must initiate from him. The ultimate order of withdrawal may operate either as discharge or acquittal. This order of the Court will attract the provision of sections 435, 436, 439, or section 417 of the Code. The function of the Court therefore must be based on some reasonable grounds and before making that order, the Court must take into consideration attending or relevant matters and circumstances. It is true that the Court is not required to record its reasons, though it may be desirable to do so. There must, however, be some material on record disclosing reason or grounds, on which the consent of the Court was given.
Withdrawal of prosecution- Courts  to see that grounds given are not extraneous to justice- Section gives general executive discretion to the P.P. subject to the consent of the Court- Court not to determine anything judicially-
It is true that the discretion of the Court need not be fettered on materials gathered by Judicial method, or to matters extraneous to the case, but the grounds must not be extraneous to Justice. We are to remember that the section gives a general executive discretion to the public prosecutor to withdraw from the prosecution, subject to the consent of the Court but the court is not to determine anything judicially. The accord of consent may be guided by many possible or probable grounds. It is, therefore, not possible to lay down before hand any rigid standard of what could or could not be possible ground for withdrawal, and they will depend always on the facts and circumstances of each case but the grounds must be relatable to the reasons for withdrawal.

Withdrawal of prosecution- Courts to be satisfied that the Public Prosecutor has not acted improperly.

Court is to be satisfied that the executive function of public prosecutor has not been improperly exercised, or it is not an attempt to interfere with the normal course of justice or for a collateral purpose.
What is to be looked at is the substance rather than the form of the order of withdrawal.
It appears that the records were called for by the Home Secretary and he after considering all aspects of the case and making his own assessment of the matter, by a letter of the Ministry of Home Affairs to the Deputy Commissioner of Sylhet, conveyed the decision of the Government to withdraw the case. The Special Public Prosecutor filed the application on disclosing those acts and on consideration of the attending circumstances the Special Tribunal’s order was passed.
It is necessary to see that the Court in order to discharge its judicial discretion, had before it material sufficient to hold, that there was good ground for withdrawal. It is the cogency of the material and not the quantum that is relevant for the consideration of giving the consent. The material disclosed by the Special Prosecutor is the decision of the Government to withdraw. A decision at the high level of administration of the Government should prima-facie be a sufficient good ground for withdrawal, unless of course it could be shown that the decision was malafide or done for a collateral purpose.

In the case of Abdul Wahab Talukder alias Mohd. and others vs. State and another 30 DLR (SC)-278- 279 held:

Code of Criminal Procedure S. 494.
Exercise of discretion regarding permission for withdrawal of a case is a Judicial discretion to be based on reasonable grounds.
The function of the Court is a Judicial one and the exercise of discretion a Judicial discretion. The accord of consent therefore must be based on some reasonable grounds and before making that order, the Court must take into consideration attending or relevant matters and circumstances. It is true that the Court is not required to record its reasons, though it may be desirable so to do. There must however be some material on record disclosing reasons or grounds on which the consent of the court was given.

In withdrawal petition Public Prosecutor in to furnish some materials before the Court concerned- Vide powers conferred upon the public prosecutor – Court is to look at the substance rather than the form of withdrawal. In that view the withdrawal order on charges under sections 302,34, 376, 148, 147, 448, 380, 429 is a valid order.

The public prosecutor must place before the Court some materials on which the Court can exercise its function of granting consents judicially.
It is true that the discretion of the Court need not be fettered on materials gathered by judicial method, or to matters extraneous to the case but the grounds must not be extraneous to justice. We are to remember that the section gives a general executive discretion to the Public Prosecutor to withdraw from the prosecution, subject to the consent of the Court, but the Court is not to determine anything judicially. The accord of consent may be guided by many possible or probable grounds. It is therefore not possible to lay down before hand any rigid standard of what could or could not be possible ground for withdrawal and they will depend always on the facts and circumstances of each case, but the grounds must be relatable to the reasons for withdrawal. The judicial function of the Court is to be understood in this context and would therefore mean that the court is to be satisfied that the executive function of the Public Prosecutor has not been improperly exercised or it is not an attempt to interfere with the normal course of justice or for a collateral purpose.
In view of the wide language employed in sec. 494 and a very wide discretion conferred upon the Public Prosecutor and no indication given asto the consideration on which the Court is to grant the consent, what is to be looked at is the substance and rather than the form of the order of withdrawal.

In the case of Sikandar Ali Sikdar vs. State and others 31 DLR(AD)135 held:

Code of Criminal Procedure
“S. 494
Withdrawal of prosecution at the instance of the Government –Court’s consent thereto to be based on materials showing cogent grounds–of the Government’s decision of withdrawal is taken at the highest level the Court without question should acquence in that.
The Court Sub-Inspector of Police filed an application before the Magistrate praying for withdrawal of the prosecution against the 4 accused-respondents on the basis of a memorandum received from the Superintendent of Police. On the basis of the said application the Magistrate discharged the respondents under section 494 Cr.P.C.
Withdrawal of a criminal case under section 494 is to be asked for by the Public Prosecutor and on the consent of the Court the withdrawal is made and the consent of the Court is a judicial function and the Court must exercise its function judicially.
The Magistrate while according consent must act judicially and there must be some materials on record to show that there was cogent ground for according consent to withdraw a criminal prosecution either wholly or partly.
The Magistrate is to see whether the Public Prosecutor in withdrawing the case had good grounds to support and if that is manifested either in this application or some materials on record as in the present case he can act. It is to be observed that if the Magistrate is confronted with an order of the Government to show that the decision was taken at the highest level of administration he is not required to go further and sit on judgment on the decision of the Government.
Code of Criminal Procedure
S. 494.

Court can however see that it was not mala fied or made for collateral purpose-
Objection asto mala fide must be based on facts- Government decision at a high level cannot be treated lightly.
Prima facie such a decision at the high level of Government supplies a good ground for according consent to withdraw a criminal case. It is true that it is open to the Court to see that it was not mala fide or made for collateral purpose but for that purpose there must be specific allegation stating facts constituting mala fide or abuse of power for collateral purpose.
Mere assertion of mala fide will not do, but there must be assertion of facts constituting mala fide and the onus is on the person who makes the allegation. The decision at the Government level should not be taken lightly and there must be cogent facts and compelling reason before the Court inducing it to act otherwise.
Code of Criminal Procedure
S. 494.

After withdrawal of prosecution the accused cannot be implicated any further.
The High Court Division in this case has made the following observations.
" If during the proceeding of the trial against the rest of the accused persons  evidence does forth-come involving the complicity of the accused persons against whom case has been withdrawn, in the incident and occurrence of the said case, there would be no legal bar in proceeding against such persons in accordance with law”
Held: Whenever on order of withdrawal is made under section 494 of the Code the section itself provides consequence flowing therefrom and as such the observation made above is uncalled for as it is likely to create some wrong impression in the mind of the trial Court and so it should not be taken note of.

In the case of Syed Matiur Rahman alias Motiur Rahman vs. The State 35 DLR(AD)- 330 held:

Code of Criminal Procedure
S. 494
Consent of the trying judge is not to be given mechanically; the court is to examine the materials on which the Government decides withdrawal of a case- Court can see if the Government order was malafide or for collateral purpose.
The cases reported in 30 DLR (AD) 238 and 31 DLR(AD)_ 134 do not lend support to the contention that whenever a decision has been given by the Government to withdraw a case against a particular accused the Court is not competent to examine the materials constituting the basis of the ground. It has consistently been held by the superior Courts in the Sub-continent ; that consent mentioned in section 494 Cr.P.C.is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case. Even in the case reported in 31 DLR it has been held that it is open to the Court to see that it was not malafide or made for collateral purpose, when there is specific allegation stating facts in support of the allegation.
In the instant case only reason assigned by the government for withdrawal of the case against the appellant is that he is a freedom fighter but the learned Sessions Judge on cogent ground had come to the finding that there are no materials to show that the appellant is a freedom fighter.

In the Case of Md. Habibur Rahman vs. Mosfiqur Rahman and others 37 DLR-307 held:

Code of Criminal Procedure
S. 494
Accord of consent by the Court must be based on some reasonable grounds-
In elaborating the context it has been said in the judgment of the Supreme Court that we are to remember that the section gives a general executive discretion to the public prosecutor to withdraw from the prosecution subject to the consent of the Court but the court is not to determine anything judicially. The accord of consent may be guided buy many possible ground. It is, therefore not possible to lay down beforehand any rigid standard of what could or could not be possible ground for withdrawal, and they will depend always on the facts and circumstances of such case but the grounds must be relatable to the reasons for withdrawal. It has been further held that the accord of consent must be based on some reasonable grounds and before making that order the court must take into consideration attending or relevant maters and circumstances. There must be some material on record disclosing reasons or grounds on which consent of the Court is given."

We have meticulously examined the first   information report, charge-sheet, impugned orders, the aforesaid directions of the Ministry aswellas the Guide line of the said Ministry dated 01-11-2001 and the preponderant judicial views emerging out of the authorities referred to above we are of the view that the impugned orders suffer from legal infirmities which calls for interference by this Court. Thus the Rule having merit succeeds.

In view of foregoing narrative the Rule is made absolute. The impugned orders dated 22-01-1995 and 22-09-1990 passed by the learned Judges of the Court below are hereby set aside and the learned Judge is directed to proceed with  the case in accordance with law and in the light of observations made above.

The Office is directed to send down the record at once.

Ed.