Ahmedabad: The Gujarat High Court on Tuesday granted interim stay on the criminal trial proceedings against Delhi Lieutenant Governor (L-G) Vinai Kumar Saxena who is facing charges of allegedly assaulting activist Medha Patkar in 2002 at Sabarmati Ashram in Ahmedabad.
Saxena who took over as Delhi L-G in May 2022, had moved the High Court after his plea seeking immunity from criminal proceedings was rejected by the trial court. He has sought relief on the ground that as an L-G he is protected from such proceedings under Article 361.
The vacation bench of Justice Moxa Kiran Thakker ordered the stay of the trial as interim relief to Saxena and issued notices to the state government and Patkar.
The order came on a petition moved by Saxena through lawyer Ajay Choksi and argued by senior advocate Jal Unwalla.
The next hearing will take place on June 16 after summer vacation.
Saxena, two current BJP MLAs Amit P Shah and Amit D Thaker, and a Congress leader Rohit N Patel are facing the charges of assaulting on Patkar in 2002 at Mahatma Gandhi founded-Sabarmati Ashram where civil rights activists and journalists had gathered to appeal for peace in the wake of post-Godhra riots.
The FIR was registered with the Sabarmati police station accusing Saxena and three others of unlawful assembly, assault, wrongful restraint, and criminal intimidation, among other charges.
Arguing before the court of Justice Moxa Thakker on Tuesday, senior advocate Jal Unwalla, representing Saxena, pointed out that the magistrate court did not address the issue of law and submitted that Article 361 (2) has to be read conjointly with Article 361 (3) of the Constitution of India.
Unwalla submitted in the court that Saxena was protected under Article 361 (2) and (3) of the Constitution. The court noted Unwalla's submission that even if the trial is concluded, the court wouldn't be in a position to send the applicant into custody in view of protection under the Constitution.
Article 361, which deals with Protection of President and Governors and Rajpramukhs, states in sub-section (2) that “no criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office”, and sub-section (3) states that “no process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office”.
Submitting that the magistrate court’s observation that if at present, protection is granted to L-G Saxena by keeping the trial in abeyance, witnesses shall be required to be examined again causing delay in trial, is erroneous in view of the fact that even if the trial is concluded by the magistrate court, it will not be in a position to send him to custody in view of the protection of Art 361 (3) of the Constitution.
Furthermore, it was argued that even if the alleged offence is said to have been committed in Saxena’s personal capacity, then also trial is required to be put in abeyance in view of the immunity granted in Article 365 of the Constitution of India.
Additionally, Unwalla submitted that on 94 occasions, the trial was delayed due to the adjournment applications moved by the complainant Medha Patkar.
Justice Thakker also issued notice to the respondent state and complainant Patkar and has kept it returnable for June 19.
Saxena, in his plea before the Gujarat HC, sought that the magistrate court’s refusal to keep the trial in abeyance against Saxena be set aside. Saxena’s petition before the high court has pointed out that the magistrate court transgressed the ambit of constitutional mandate and that while the magistrate court cited delay as one of the grounds for rejecting Saxena’s request, the magistrate failed to “consider the record consciously on the aspect of pendency”.
Saxena’s petition notes that after the issuance of summons to Patkar in June 2005, she “did not appear for more than 46 adjournments for recording her evidence”, and only appeared for the first time in 2012.
Between July 2015 and February 2023, a total of 24 adjournments or absences were recorded when Patkar was being cross-examined on behalf of one of the co-accused.