What would happen to cases (say against the Maoists) where some of the co-accused belong to one religion and others belong to a different community. There can be no doubt that the criteria adopted by the Union Home Minister is clearly violative of the constitutional guarantee of equality since it is not based on rationale or intelligible criteria,” Jaitley said.
“The power to withdraw a prosecution is circumscribed by section 321 of the Criminal Procedure Code. It is only a Public Prosecutor who after application of mind for ‘good reason' has the power to move the court seeking withdrawal of a case.
The judge has to apply his mind to allow the withdrawal of a case. Criminal law does not provide for any review Committee for withdrawal of pending cases where charge sheets have been filed. Whenever law makers have felt the need, they have specifically provided for such a Review Committee.
An extra legal review committee which substitutes the discretion of the public prosecutor and the judge follows a procedure unknown to law. The same is clearly violative of even the provisions of criminal law.
The directive/advisory of the Union Home Minister to the States to discriminate between criminals on basis of religion is based on an improper policy.
It violates the constitutional guarantee of equality. It is violative of the fundamental principles and provisions of criminal law. The States are not bound by such unconstitutional directives of the Home Minister,” added Jaitley.
