9 Nov 2022 3:51 PM GMT
The Gujarat High Court on Wednesday dismissed a petition seeking withdrawal of the prosecution against the sitting BJP MLA Dharmendrasinh alias Hakubha Jadeja, who is an accused in a 2007 case of mob violence. "This Court firmly believes that anyhow and at any cost, the State Government is trying to save his sitting MLA under the provisions of Section 321 of the Code under the pretext of...
The Gujarat High Court on Wednesday dismissed a petition seeking withdrawal of the prosecution against the sitting BJP MLA Dharmendrasinh alias Hakubha Jadeja, who is an accused in a 2007 case of mob violence.
"This Court firmly believes that anyhow and at any cost, the State Government is trying to save his sitting MLA under the provisions of Section 321 of the Code under the pretext of larger public interest," said Justice Niral R. Mehta in the judgement.
In December 2007, a mob of about 200-300 persons had gathered outside the gate of Essar Company "for public agitation for the resolution of issues affecting public at large and local agriculturists". During the protest, the people started pelting stones on the buses of the company and as a result, employees travelling in them received injuries and the vehicles also suffered damage. The police officials also had received stone injuries.
An FIR was lodged under Sections 143, 147, 148, 149, 341, 332, 324, 427, 506 of the Indian Penal Code read with Section 135(1) of the Bombay Police Act against 46 persons. Jadeja, who was a Member of District Panchayat, Vadinar, is one of the accused in the FIR.
All the accused were chargesheeted in 2008.
The then APP had submitted an application in October 2020 for withdrawal of the case against all accused persons. The same was dismissed by the Chief Judicial Magistrate. The District Government Pleader and the MLA then filed revisions against the order before the Sessions Court. The Sessions Court rejected their applications. The Sessions Court Order was never challenged.
Kamleshkumar C.Dave, who is the Special Public Prosecutor for the District Devbhoomi Dwarka for conducting cases against MPs and MLAs, after taking charge made a similar application seeking withdrawal of the prosecution against the accused. The same is pending adjudication before the trial court.
However, in the meantime, he learnt that in view of a Supreme Court decision, no prosecution against sitting or former MP or MLA can be withdrawn without the leave of the concerned High Court. Accordingly, he filed a petition before the high court.
The counsel representing the Gujarat government argued that public agitation was in the public interest and for the purpose of protection of interest of the local agriculturists and thereby withdrawal of such prosecution is in the larger public interest.
"Even considering the investigation papers, role played by the accused persons is not clear and thus, permission for withdrawal of prosecution may be granted in such circumstances." the public prosecutor submitted.
The court noted that at the time the offence was committed, Jadeja was a member of the district panchayat and is now an MLA.
Referring to the earlier attempt of withdrawal, the court said:
"Pursuant to the policy of the State Government, an opinion was called for from the then learned Assistant Public Prosecutor Shri S.P. Vasava for withdrawal of the case. Pursuant thereto, learned APP has in no uncertain terms opined that the said case is not worth withdrawing. Thereafter, it appears that learned District Government Pleader as well as Additional District Magistrate, Devbhoomi Dwarka, vide their letters dated 26th August, 2020 and 20th August, 2020 respectively, directed learned APP Shri Vasava to file an application for withdrawal of prosecution under Section 321 of the Code. Pursuant thereto, an application Exh.197 was filed on 06th October, 2020 by the then learned APP despite he was of the opinion that the present case is not worth withdrawing."
Observing that earlier application was filed by then learned APP against his own negative opinion with regard to withdrawal of prosecution on the insistence of the higher authorities, the court said it was rightly held that the same was made without any independent application of mind but under pressure of higher authorities.
"Pertinently, one of the accused is a sitting MLA and thereby there are all reasons to believe that at his instance, pressure was made on the then learned APP despite his negative opinion. The said belief can be fortified from the fact that even with the change of learned APP, again, the same application under the provisions of Section 321 came to be moved. Thus, this Court firmly believes that anyhow and at any cost, the State Government is trying to save his sitting MLA under the provisions of Section 321 of the Code under the pretext of larger public interest. "
Perusing the SPP's application, the court said he has not formed a particular opinion as to how and in what manner broad ends of public justice would be met.
"Learned APP in his application Exh.341 has nowhere stated that how the withdrawal from prosecution would sub-serve the public interest. This Court could not find as to how withdrawal of criminal case would advance the cause of justice. Considering application Exh.341 as well as keeping in mind the past orders of learned Chief Judicial Magistrate and learned Sessions Judge, it appears to this Court that application Exh.341 is not filed with bona fide intention, but is filed only with a view to see that sitting MLA shall escape from liability to undergo rigors of trial."
The court termed it shocking that the newly appointed SPP filed a fresh application without challenging the earlier orders. It said SPP's action suggests that he "is nothing but a sheer "puppet" in the hands of the State Government who has not kept his obligation towards the Court as envisaged in Cr.P.C. in mind and only with a view to please the superior authority, made such an application."
"In my view, newly appointed concerned learned Special Public Prosecutor, before filing application Exh.341, should have opined whether such second application could have been maintainable? The said application, in my view, is certainly not maintainable. If such an application allowed to be maintained, then in that event, every now and then upon rejection of withdrawal of prosecution by the courts, learned APP would be changed and the said changed learned APP would make a fresh application for withdrawal of prosecution, which cannot be permitted to be allowed."
The court said the cause of filing an application under Section 321 of the Code does not arise with the change of the Public Prosecutor.
"But for the fact that accused is a political leader, application for withdrawal is submitted without demonstrating how public interest would be met which is the foremost requirement. If the accused would not have been the political leader, such an application for withdrawal of prosecution would not have been filed," it added.
The court further said the allegations against the accused persons are serious and merely because one of them is now a sitting MLA cannot mean that any differential treatment be extended to him.
"The accused cannot be allowed, on the basis of his subsequently acquired status of MLA, to claim distinguishable privilege than that of normal citizen. As it appears from the allegations, under the pretext of agitation, rioting took place and caused damage to the property of M/s.Essar company as well as employees from the police department those who have been injured. While giving permission to withdraw the prosecution, in my view, those who suffered, have also stake in the proceedings and thereby that aspect also requires to be considered by the Court while granting leave for withdrawal of prosecution."
The court further said that victims in the case are Essar company and employees of State Police.
"Those victims cannot be ignored at the discretion of learned Public Prosecutor who appears to be acting only on the direction of the higher authorities. The application moved by the newly appointed learned Special Public Prosecutor, in my view, is not with an independent mind, but is made only with a view to please the higher authorities. In Section 321 of the Code, wide discretion is given to learned APP/Spl.PP. Therefore, when absolute discretion is given, the same discretion has to be exercised with utmost care and circumspection. Such discretionary powers cannot be exercised or expected to be exercised by learned APP to please higher authorities. Learned APP/Spl.PP, under the provisions of Section 321 of the Code, owes statutory duties/obligation"
The court said the APP is the assistant of the court in first place and therefore owes his obligation towards the court and the same has to be discharged with paramount care and caution.
"When one learned APP had already given negative opinion for withdrawal of prosecution, however, upon pressure of the higher authorities even the application was moved and when such application is rejected by the learned trial court as well as by the revisionist court, in that event, particularly when such orders have attained finality, with the change of Public Prosecutor again an application seeking withdrawal of prosecution is nothing but an abuse of law at the discretion of the learned Public Prosecutor."
Observing that the SPP appears to have exercised his discretion improperly, the court said he cannot make fresh application of withdrawal merely because he has replaced earlier APP.
"Secondly, having known the fact that earlier withdrawal of prosecution has been rejected by the learned Chief Judicial Magistrate as well as learned Sessions Court and when the said orders attained finality, learned Special Public Prosecutor should have applied his legal mind for filing fresh application for the same cause. Thus, it established beyond any doubt that Special Public Prosecutor has acted on the instructions of government only and thereby rendered himself as merely a "postman"," it added.
Ruling that the application does not appear to have been filed in good faith or in the interest of public policy or justice, the court said:
"Rather, it appears to have been filed purely with a political interest and therefore, the same is nothing but an attempt to thwart and stifle the process of law. Additionally, the said application itself suffers from patent manifest illegality as if such application is objectively considered, then in that case, no prudent court officer would opine to file such an application when earlier application for the same purpose and object has been duly rejected by the learned Sessions Court and the same has attained its finality. This Court has not found any material which shows that withdrawal of prosecution would serve public purpose."
It accordingly dismissed the petition and said it is bereft of any merits.
Case Title: Kamlesh Kumar C. Dave v. State of Gujarat
Citation: 2022 LiveLaw (Guj) 397
Coram: Justice Niral R. Mehta
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