Sakina Tashrifwala
Published on: November 10, 2022 at 21:30 IST
The Gujarat High Court criticised the State Government on Wednesday for attempting to defend BJP MLA Dharmendrasinh alias Hakubha Jadeja, who is charged with participating in rioting and mob violence.
The single-judge Justice Niral Mehta criticised the State for trying to save the sitting MLA at all costs by requesting the dismissal of the case against Jadeja under the guise of a greater public interest in a strongly worded order.
“This Court is adamant that the State Government is using the provisions of Section 321 of the Code of Criminal Procedure (CrPC) to save its sitting MLA under the guise of a greater public interest.”
“This Court believes that the application was made solely to ensure that the sitting MLA would be exempt from having to go through the rigours of a trial and not with any good faith intention,” the Court made a note.
It expressed surprise at how the recently appointed Special Public Prosecutor (SPP), Kamleshkumar Dave, filed the current petition for dismissal of charges against Jadeja, despite the fact that the sessions court rejected similar requests made by the State and Jadeja in December 2020.
As a result, it condemned Dave’s behaviour and referred to him as the ruling regime’s “puppet.”
“This shows that the SPP is nothing more than a mere “puppet” in the State Government’s hands who has simply made this appeal to appease the higher authorities and has neglected his duty to the Court as provided for in the CrPC.”
“There is no question that the SPP only followed the government’s directions, reducing himself to the role of a “postman,” the judge’s judgment read.
Therefore, it rejected the State’s argument.
The incident that gave rise to the case occurred on December 21, 2007, when a crowd of 200–300 people assembled outside the gate of the Essar firm in the Khambhalia Taluka to engage in public protests for the settlement of problems that affected both the general public and local farmers.
However, amid the disturbance, the mob began throwing stones at the company’s buses, which led to injuries to the passengers and damage to the buses themselves.
Police officers who had been stationed there to uphold public safety and peace also sustained injuries.
For violations of Sections 143 (unlawful assembly), 147 (rioting), 148 (rioting with deadly weapon), 149, 341 (wrongful restraint), 332 (voluntarily inflicting harm to prevent a public servant from performing his duties), 324 (voluntarily inflicting harm with dangerous weapons), 427 (mischief), and 506 (criminal intimidation), a first information report was filed against 46 people (IPC).
Jadeja was one of the 46 accused, out of 46.
The police then filed a chargesheet against each of the defendants.
In accordance with Section 321 of the Code of Criminal Procedure (CrPC), the assistant public prosecutor in charge of the aforementioned criminal case filed an application dated October 6, 2020 asking for the prosecution’s withdrawal against all 46 of the defendants before the Chief Judicial Magistrate‘s Court in Khambhalia.
However, in a thorough order dated October 14, 2020, the Chief Judicial Magistrate denied the aforementioned application.
On December 5, 2020, Jadeja and the State had both filed revision requests against the same.
Since this was not further contested, the order from December 2020 became final.
The current petitioner was designated as the special public prosecutor for handling cases against MPs and MLAs during this time.
After taking over, he filed an application with the trial court for withdrawal from prosecution under Section 321 CrPC on the grounds of public interest and the advancement of justice.
The petitioner-prosecutor did discover, however, that pursuant to a Supreme Court order dated August 10, 2021, no case against a serving or former MP or MLA could be dismissed without the consent of the relevant High Court.
Dave then requested that the High Court drop the charges by using the current plea.
The judge noted that the previous assistant public prosecutor (APP) had initially submitted a similar application in October 2020.
Even though the APP had previously informed the State that the current case was not one worth withdrawing, such a request was still made.
“Relevantly, one of the defendants is a sitting MLA, and there is every cause to think that pressure was applied on the then-prosecutor at his request notwithstanding the prosecutor’s disapproval. The fact that the same application was once again moved despite the prosecutor changing supports the aforementioned assumption,” the High Court took notice.
The Court further stated that it did not comprehend how the application made by SPP to withdraw the criminal prosecution would further the cause of justice.
Dave made no further explanations regarding this issue.
The accused will not receive any special treatment simply because he is an MLA, the judge stated in unequivocal terms. The Court emphasised on:
“There cannot be any special treatment given to the accused simply because he is now a serving MLA. The accused cannot be permitted to assert different privileges from those of a regular citizen based on his afterwards obtained position as an MLA,”
The court also expressed concern at SPP Dave’s actions in the current case for bringing the current motion even though identical ones had already been denied by lower courts back in December 2020.
The Court made it plain that if such an application is granted, then occasionally after a court rejects a request to drop charges, prosecutors would be changed, and the new prosecutors would submit a new request to drop charges, which is not permissible.
The Court emphasised that the change in the public prosecutor is not the reason for filing an application under Section 321 of the CrPC.
“Without addressing the most important requirement—demonstrating how the public interest would be served—the application for withdrawal is presented notwithstanding the fact that the accused is a political figure. Such a request for the prosecution to be dropped would not have been made if the accused had not been a prominent political figure,” opinionated the bench.
Finally, the bench noted that the current actions appear to have been started only with a “political motive” and that, as a result, they are nothing more than an effort to obstruct and suppress the legal process.
Following these comments, the Court rejected the plea.
For the petitioner SPP, Additional Public Prosecutor Mitesh Amin made an appearance.