The duty of the Public Prosecutor to exercise discretion with utmost care and circumspection, and not to act under pressure from higher authorities.

JUDGMENT :

NIRAL R. MEHTA, J.

1. By way of this Special Criminal Application under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the petitioner who has been appointed as Special Public Prosecutor, District Devbhoomi Dwarka, prays as under:

“(A) This Hon’ble Court be pleased to admit and allow this application.

(B) This Hon’ble Court be pleased to grant leave for withdrawal from prosecution of Criminal Case No. 696 of 2008 pending before court of Ld. Chief Judicial Magistrate, Khambhaliya, District Devbhumi Dwarka, as provided under Section 321 of Cr.P.C.

(C) During the pendency and final disposal of the application, this Hon’ble Court be pleased to stay the further proceedings of Criminal Case No. 696 of 2008 pending before Court of Ld. Chief Judicial Magistrate, Khambhaliya, District Devbhumi Dwarka.

(D) This Hon’ble Court be pleased to grant such other and further reliefs and/or order as deemed fit in the facts and circumstances of the case and in the interest of justice.”

2. Brief facts of the case can be summarized as under:

2.1 On 21st December, 2007 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 said agitation, the mob had started stone pelting on the buses of the company and as a result thereof, employees travelling in the buses had received injuries and even damage was caused to the buses. Police officers who were deployed there to maintain public peace and safety have also received stone injuries.

2.2 In view of aforesaid incident, Police Sub Inspector Shri Nakum lodged a F.I.R. being C.R. No. 165 of 2007 for the offences punishable 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 against 46 persons. Pertinently, out of the said 46 accused persons, one accused viz. Dharmendrasinh alias Hakubha Jadeja is now the sitting MLA elected from Jamkhambhalia constituency.

2.3 In furtherance of the aforesaid F.I.R. the investigating agency had investigated the entire offence and filed chargesheet against all the accused persons in the competent court and thereupon, Criminal Case No. 696 of 2008 came to be registered in the court of learned Chief Judicial Magistrate, Khambhalia, District Devbhoomi Dwarka.

2.4 The then learned Assistant Public Prosecutor who was in charge of the said criminal case, submitted an application Exh.197 dated 06th October, 2020 under Section 321 of the Code of Criminal Procedure, 1973 for withdrawal from prosecution against all the 46 accused persons before the court of learned Chief Judicial Magistrate, Khambhalia. However, learned Chief Judicial Magistrate vide his detailed order dated 14th October, 2020 rejected the said application.

2.5 Feeling aggrieved and dissatisfied with the aforesaid order, the State of Gujarat through learned District Government Pleader, as well as sitting MLA viz. Dharmendrasinh alias Hakubha Jadeja, preferred Criminal Revision Application Nos. 13 of 2020 and 14 of 2020 respectively before the Sessions Court. Learned Sessions Judge, Devbhoomi Dwarka, after having considered materials on record, was pleased to reject the Revision Applications by common order dated 05th December, 2020.

2.6 At this stage, it would be relevant to note that the order passed by learned Sessions Judge, Devbhoomi Dwarka dated 05th December, 2020 was never challenged before any higher forum and thereby the said order attained its finality.

2.7 In the interregnum period and during the pandemic period, one co-accused Surendrasinh Jadeja filed an application at Exh.227 requesting, inter-alia, for examining remaining witnesses after the period of lockdown. However, the said application came to be rejected by the learned Magistrate. Thus, being aggrieved by the aforesaid order, Special Criminal Application No. 7296 o