A Mumbai court has rejected an application by murder accused Vijay Palande to remove Rajya Sabha member Ujjwal Nikam as special public prosecutor (SPP) for the State in the case [Vijay Bhivajirao Palande v. State of Maharashtra & Ors.]..Palande is facing trial for the alleged murder of Delhi-based businessman Arunkumar Tikku in 2012. He is also facing two other murder cases and is currently in judicial custody.He argued that Nikam could not continue as an SPP after being nominated to the Rajya Sabha. According to him, this amounted to holding an ‘office of profit’ under the State government.Palande relied on Article 102 of the Constitution. The provision states that a person shall be disqualified from being a member of the House of Parliament if they also hold any office of profit under the government..Additional Sessions Judge RJ Pawar rejected these arguments, holding that Palande had misinterpreted the provision. "From the appointment of learned Ujjwal Nikam, the Special Public Prosecutor, it is clear that he had been qualified for being a member of Rajya Sabha when he did not hold any office of profit. Article 102 (1)(a) nowhere states that any person shall be disqualified for being a Special Public Prosecutor if he holds any office of profit under the Government of India or any State," the court opined. It further relied on the Supreme Court decision in State of Maharashtra v. Prakash Prahlad Patil to hold that it cannot interfere with the State's policy matters lightly. “The court cannot interfere with a policy decision of the State, thereby appointing Ujjwal Nikam as Special Public Prosecutor ... I find that the present application is not tenable in the eyes of the law and hence, it deserves to be rejected," the court concluded. .Palande had argued that Nikam may use undue influence and power and go to any lengths to seek a conviction in his case, being a BJP spokesperson and a Rajya Sabha member. The State and Nikam opposed the plea arguing that there is no such provision either under the old Code of Criminal Procedure, 1973 or Bhartiya Nagrik Suraksha Sanhita, 2023 that disqualifies a Special Public Prosecutor after being nominated to the Rajya Sabha.They argued that the appointment of a Special Public Prosecutor is purely on a contract-basis for specific cases, and it does not amount to holding an office of profit, as there is no master‑servant relationship with the State.The court agreed with the State and Nikam’s arguments and rejected Palande’s application..Nikam has represented the Maharashtra government as legal counsel in several cases. These include the 26/11 terror attack trial and the Shakti Mills rape trial. He had contested the Lok Sabha elections in 2024.Before contesting, Nikam had resigned from representing the State in 29 cases. These included the cases against Palande and the 26/11 trial. After he lost the elections, he returned to appearing as SPP in some of these cases..[Read order].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.
