‘Gujarat Govt Trying To Save Sitting MLA, SPP State’s ‘Puppet’: Gujarat High Court Rejects Plea Seeking Withdrawal Of Prosecution Against BJP MLA

‘Gujarat Govt Trying To Save Sitting MLA, SPP State’s ‘Puppet’: Gujarat High Court Rejects Plea Seeking Withdrawal Of Prosecution Against BJP MLA

Case: Kamlesh Kumar C. Dave v. State of Gujarat

Coram: Justice Niral R. Mehta

Case No.: R/Special Criminal Application No. 8049 of 2022

Court Observation: “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,”

“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.”

“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.”

“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.”

“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 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.”

“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”

“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.”

“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.”

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