SPP a puppet; state govt trying to save accused at any cost: Gujarat HC dismisses plea seeking withdrawal of prosecution against BJP MLA

The Gujarat High Court has rejected the plea moved by the State Government seeking withdrawal of prosecution against BJP MLA Dharmendrasinh alias Hakubha Jadeja in a 2007 mob violence and rioting case.

The single-judge bench comprising Justice Niral L. Mehta, while rejecting the petition moved by Kamleshkumar C. Dave, Special Public Prosecutor (SPP), District Devbhoomi Dwarka, stated that the application was nothing but an attempt of the State government to anyhow and at any cost, save its sitting MLA.

Court noted that on October 6, 2020, an application for withdrawal of the case was moved by the then APP despite his own negative opinion, which came to be rejected by the Chief Judicial Magistrate as well as the Sessions Judge. Thereafter, the newly appointed Special Public Prosecutor Kamlesh Dave moved a fresh application dated July 3, 2021 before the trial court under Section 321 CrPC under the pretext of public interest and in furtherance of justice.

However, the SPP later learned that in view of the order dated August 10, 2021, passed by the Supreme Court, no prosecution against a sitting or former MP or MLA could be withdrawn without the permission of the concerned High Court, therefore, he moved the High Court by way of the present plea for withdrawal of prosecution.

Court observed, "It is really shocking that once having rejected the application for withdrawal by learned Chief Judicial Magistrate as confirmed by learned Sessions Judge, though the said orders have attained finality, without there being any challenge to those orders, again newly appointed learned Special Public Prosecutor ventured to file an application Exh.341, which suggest that the said learned Special Public Prosecutor 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".

Court stressed that the newly appointed concerned Special Public Prosecutor, before filing the application should have opined whether such second application was maintainable or not.

Court opined, "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".

Therefore, holding that the SPP appeared to have exercised discretionary power improperly for illegitimate reasons, Court dismissed the present plea. " The allegations against the accused persons are very serious in nature. Merely because the accused is now 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 a normal citizen," Court held.

On December 21, 2007 a mob of 200-300 persons gathered outside the gate of Essar company at Khambhalia Taluka for public agitation for resolution of issues affecting public at large and local agriculturists. However, during the said agitation, the mob started stone pelting on the buses of the company and as a result thereof, employees traveling in the buses received injuries and damage was caused to the buses. Police officers who were deployed there to maintain public peace and safety also received stone injuries.

Thereafter, in the incident an FIR 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 was lodged against 46 persons including Hakubha Jadeja, who was then a Member of District Panchayat, Vadinar and is now a sitting MLA from Jamkhambhalia constituency.

Case Title: Kamleshkumar C Dave vs State of Gujarat