Withdrawal of cases may set poor precedent

The Phuentsholing drungkhag court asked the Office of the Attorney General (OAG) to withdraw 23 cases of the 51 charged in the ATM card racket on July 17.

The two benches of the Phuentsholing court gave adequate time to OAG to produce the defendants before the court. OAG prosecutors could not produce the defendants before the court since they had changed their cell phone numbers and lacked proper addresses.

Having missed the deadline, OAG was asked to withdraw the case.

However, this has sent out troubling messages.

Observers including former judges and lawyers said that such withdrawals could lead to or encourage people to commit crimes and disappear.

“Because then they know that their case will be withdrawn. If such incidents occur, do the victims of such big scams or crimes get justice,” a lawyer asked.

If such cases become a trend, it could hamper the rule of law in the country. However, OAG officials and the courts stand their grounds.

OAG officials said that there are only two grounds where the prosecution could withdraw the case. One, when the accused has died and the other, when there is no evidence to prove the case beyond reasonable doubt.

OAG’s chief prosecution officer, Kinley Tenzin said that OAG’s mandate is only to register and prosecute the case and need not worry about producing the defendants.

The Civil and Criminal Procedure Code states that “If following the accumulation and review of evidences, the police and the prosecutor believes that there is an insufficient legal basis to make a compelling case to prove a suspect’s guilt beyond a reasonable doubt, the police/prosecutor may request the Court to allow the prosecution to be withdrawn.”

He said the courts could have decided the cases in absentia or summon through police. The OAG had submitted the details of the defendants including citizenship identity cards to the court.

A Supreme Court official said that in this kind of cases, it is mandatory to produce defendants at the time of registering the cases.

“In the particular case, it is the duty of the OAG to ask the court to summon the defendants or to defer the case,” the official said.

A former judge said that the court could issue summons. On the third time, if the person fails to report to the court, then the court would direct the police to arrest the individual and present him before the court.

Civil and Criminal Procedure Code 2001 states that the courts can issue summons.

The code’s section 37.1 states, “A summon shall order a person to whom it is directed to appear before the Court in person at the time, date and place specified therein; order a person to whom it is directed to give testimony; order a person to produce evidence; or order a person to produce document or other material object on the date and place specified therein.”

The code’s section 38 (2) states, “The Court may also publish a written proclamation in any media including electronic requiring a person to appear at a specified place and time not less than twenty-one days from the date of publishing such a proclamation, if service in person or by mail is ineffective.”

The option for the courts in such circumstance is to pass a default judgment in absentia or defer the case. When the convicted is found, the judgment is enforced. Should the case be deferred, the case is reopened when the defendant is found.

However, Supreme Court officials said that the courts are not encouraging default judgments since the law enforcement agencies do not follow up on such cases.

“Even if the convicted person or a missing defendant reappears, the judgments are not enforced nor are cases reopened,” the official said.

The National Assembly while discussing the annual report of the Anti-Corruption Commission (ACC) 2016 on May 19 last year passed a resolution stating that the responsibility to summon defendants lies with the court of law once the OAG registers the case.

However, the Supreme Court officials said that such resolutions are not legally binding on the judiciary.

Meanwhile, the missing defendants had cooperated with the prime accused, a non-Bhutanese Sanjit Kumar Gupta, a businessman in Jaigaon, India, who was charged on 59 counts of offences of active commercial bribery on repatriation of Indian Currency (IC) amounting to Indian Rupee (INR) 106.304 million(M) by using 320 Bhutanese ATM cards and trading in the black market. This racket boomed when the country faced acute shortage of INR.

Tshering Palden and  Rinzin Wangchuk

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