The Gujarat High Court pulled up the Special Public Prosecutor for filing a fresh application for withdrawal of prosecution against a BJP MLA for a second time before the Trial Court after the said application was rejected by the Chief Judicial Magistrate as well as Sessions Court.

The bench of Justice Niral R Mehta observed that "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."

In this case, a mob of 200-300 persons gathered outside the gate of Essar company at Khambhalia Taluka for public agitation for the resolution of alleged 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 travelling in the buses had received injuries and damage was caused to the buses. Police officers deployed there to maintain public peace and safety also received stone injuries.

Thereafter, FIR came to be registered and out of the 46 accused persons, one accused viz. Dharmendrasinh alias Hakubha Jadeja is now the sitting MLA elected from Jamkhambhalia constituency.

The then Assistant Public Prosecutor submitted an application for withdrawal from prosecution against all 46 accused persons before the Court of Chief Judicial Magistrate, Khambhalia. However, the said application was rejected.

The revision application before the Sessions Court also came to be rejected.

Thereafter the present petitioner came to be appointed as Special Public Prosecutor for the District Devbhoomi Dwarka for conducting cases against MPs and MLAs. The petitioner submitted an application before the trial court under seeking, inter alia, withdrawal from prosecution under the pretext of public interest and in furtherance of justice. The said application is pending for adjudication.

The Court observed that the Special Public Prosecutor has not formed a particular opinion as to how and in what manner broad ends of public justice would be met.

"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 observed.

The Court noted that Special Public Prosecutor has acted on the instructions of the government only and thereby rendered himself as merely a "postman".

The Court also noted that the allegations against the accused persons are very serious in nature.

Resultantly the Court dismissed the petition.

Cause Title- Kamleshkumar C. Dave v. State of Gujarat

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Gujarat High CourtJustice Niral MehtaPublic Prosecutor

Ashish Shaji