The Gujarat High Court on Wednesday came down upon the State government for trying to protect BJP MLA Dharmendrasinh alias Hakubha Jadeja, accused of being part of mob violence and rioting [Kamleshkumar C Dave vs State of Gujarat].

In a strongly worded order, single-judge Justice Niral Mehta deprecated the State for its attempt to save the sitting MLA at all costs by seeking withdrawal of prosecution against Jadeja under the pretext of larger public interest.

"...this Court firmly believes that anyhow and at any cost, the State Government is trying to save its sitting MLA under the provisions of Section 321 of the Code of Criminal Procedure (CrPC) under the pretext of larger public interest. It appears to this Court that application 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 observed.

It expressed shock at how the newly appointed special public prosecutor (SPP) Kamleshkumar Dave filed the present plea for withdrawal of prosecution against Jadeja, even though similar applications filed by the State and Jadeja were rejected by the sessions court in December 2020.

It, therefore, deprecated the conduct of Dave and termed him a 'puppet' in the hands of the ruling dispensation.

"This suggests that the SPP 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 CrPC in mind and only with a view to please the superior authority, made such an application. It is established beyond any doubt that the SPP has acted on the instructions of government only and thereby rendered himself as merely a 'postman'," the judge opined.

It, therefore, dismissed the State's plea.

The case arose from an incident of December 21, 2007, when a mob of 200-300 persons gathered outside the gate of Essar company at Khambhalia Taluka for public agitation for the resolution of issues affecting public at large and local agriculturists.

However, during the agitation, the mob started stone pelting on the buses of the company and as a result of the same, employees travelling in the buses were injured and damage was caused to the buses. Police officers, who were deployed there to maintain public peace and safety, also received injuries.

A first information report was registered against 46 persons for offences under Sections 143 (unlawful assembly), 147 (rioting), 148 (rioting with deadly weapon), 149 , 341 (wrongful restraint), 332 (voluntarily causing hurt to deter public servant from his duty), 324 (voluntarily causing hurt by dangerous weapons), 427 (mischief) and 506 (criminal intimidation) of the Indian Penal Code (IPC).

Out of the 46 accused, one was Jadeja.

The police, subsequently, filed chargesheet against all the accused persons.

The assistant public prosecutor, who was in charge of the said criminal case, submitted an application dated October 6, 2020 under Section 321 of the Code of Criminal Procedure (CrPC) for withdrawal from prosecution against all the 46 accused persons before the court of Chief Judicial Magistrate, Khambhalia. However, the Chief Judicial Magistrate rejected the said application by a detailed order dated October 14, 2020.

A revision applications filed against the same by Jadeja and the State were also dismissed on December 5, 2020.

This was not challenged further and the order of December 2020 attained finality.

Meanwhile, the present petitioner came to be appointed as the special public prosecutor for conducting cases against MPs and MLAs.

After taking charge, he moved an application before the trial court under Section 321 CrPC for withdrawal from prosecution under the pretext of public interest and in furtherance of justice.

However, the petitioner-prosecutor learnt that in view of order dated August 10, 2021 passed by Supreme Court, no prosecution against sitting or former MP or MLA could be withdrawn without the permission of the concerned High Court.

Dave then moved the High Court by way of the present plea for withdrawal of prosecution.

The bench noted that a similar application was first made by the earlier assistant public prosecutor (APP) in October 2020. Such an application was made even though the APP had earlier told the State that the present case was not worth withdrawing.

"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 prosecutor despite his negative opinion. The said belief can be fortified from the fact that even with the change of prosecutor, again, the same application came to be moved," the High Court noted.

The Court further said it could not understand as to how withdrawal of the criminal case would advance the cause of justice as the application moved by SPP Dave did not clarify anything on this aspect.

The judge in clear words said that just because the accused is an MLA he won't be given any special treatment.

"Merely because the accused now being a sitting MLA, there cannot be any differential treatment to 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," the Court underscored.

The Court also expressed shock at the conduct of SPP Dave in the present proceedings for filing the instant application despite similar ones being turned down by lower courts way back in December 2020.

The Court made it clear that if such an application is allowed, then every now and then upon rejection of withdrawal of prosecution by the courts, prosecutors would be changed and the new prosecutors would make a fresh application for withdrawal of prosecution, which cannot be permitted.

The cause of filing application under Section 321 of the CrPC does not arise with the change of the public prosecutor, the Court underlined.

"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," the bench opined.

Lastly, the bench observed that the instant proceedings appear to have been initiated purely with a 'political interest' and therefore, the same is nothing but an attempt to thwart and stifle the process of law.

With these observations, the Court dismissed the plea.

Additional Public Prosecutor Mitesh Amin appeared for the petitioner SPP.

[Read Judgment]