The Supreme Court has said that the Union of India and states should complete their final arguments so that an order can be passed since the matter of pendency of criminal cases against MPs & MLAs and expeditious disposal of the same by setting up Special Courts has been pending since 2016.
The three-judges bench headed by Chief Justice N.V. Ramana, Justice D.Y. Chandrachud and Justice Suryakant also heard the plea seeking directions for setting up of a Special Magistrate Court in Rampur, Uttar Pradesh for trying the matters relating to MPs and MLAs. The plea has been filed by Samajwadi Party leader and MP Azam Khan, MLA Tazeen Fatima and their son Abdullah Khan. Amicus Curiae Senior Advocate Vijay Hansaria appeared in the said matter.
CJI Ramana asked Solicitor General Tushar Mehta and counsels if they’re ready for a hearing today.
In the Twelfth report, the amicus has tried to distinguish A.R. Antulay II Case (A.R.Antulay v. R.S.Nayak) 1988 2 SCC 602 which does not apply to this present case, because in Antulay II Case, it relates to the cases of transfer due to court lacking jurisdiction, while in this case, designating a judicial officer basis on the competency and possessing jurisdiction to try such cases, further holding that no right of appeal or revision has been taken away from accused person.
Pursuant to the directions of the Court, the Central government sanctioned constitution of 12 Special Courts for trial of cases against MPs/ MLAs – 9 for sessions trial cases in the States/ UTs of Andhra Pradesh, Bihar, Karnataka, Madhya Pradesh, Tamil Nadu, Telangana, Uttar Pradesh, West Bengal and Delhi; and 3 for Magisterial cases in Maharashtra, Kerala and Delhi.
Amicus Curiae Vijay Hansaria stated the suggestions put forth in its 12th report submitted before bench on 2.11.2020.
Sr. Advocate Kapil Sibal: “We don’t have a problem if case proceeds in sessions court but it has to be provided under a statute or order under Article 142 of Constitution of India.”
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Sibal submitted that this court in its orders has said these matters have to be heard by magistrate court so that appeals can be filed.
Sibal said, “There must be special magistrate courts in every jurisdiction. Because in Code of Criminal Procedure, it is clear that right of appeal of accused cannot be extinguished.”
To which, Amicus Senior Advocate Vijay Hansaria submitted that there is no deny of right of appeal, since first appellate court is the High Court.
Sibal further submitted these matters as far as my case is concerned is triable by Magistrate but has been committed to Session’s judge.
Sibal argued that in Allahabad HC they haven’t assigned to Magistrate Court. “You can try MLA/MP matter in special courts but you can’t take away my right.”
Sibal read out the order dated 4.12.2018 wherein it states about the how to enforce trial effective in dealing with MPs/MLAs cases and goes on to state that to ensure effective trial, amicus suggested vide its report that there should be one designated Session court and one designate Magistrate court.
Further Senior Advocate Kapil Sibal stated that Amicus Vijay Hansaria requested to allocate criminal cases in as many as in sessions court and in magistrate courts.
CJI Ramana to Amicus: “We have broadly elaborated Coal Block Allocation case.”
Solicitor General Tushar Mehta referred to Section 460, 462 of Code of Criminal Procedure. (Former Provision deals with irregularities being done by the Magistrates which does not vitiate the proceedings and latter provision deals the proceedings which occurred in wrong place.)
Amicus Hansaria: “This is going on since 2019, there are many cases which have been transferred to sessions court all over the country. POCSO & SC ST Act doesn’t create special court at sessions level with appeal to High Court. Please fix a date for final hearing, there are other issues.”
Justice D.Y. Chandrachud said: “There are 2 distinct issues: one is power of this court to direct a designated special judge. That can’t be questioned. There’s a separate issue, the nature of the jurisdiction that special judge exercises. That has to be according to statute. If statute states trial has to be by Magistrate, this court can’t say it can’t.”
“Constitution of special court per se isn’t difficulty at all. That’s open to this court. That’s what coal block allocation cases say,” he added.
Justice Suryakant: “Mr Hansaria, we need to be correct on case. As far as coal allocation is concerned, this court notices PC Act was involved and that act has specific provision for special judge.”
Supreme Court Bench said: “We will take this up again day after tomorrow. November 24 or November 25 is okay? Please focus, don’t go into too many judgements, focus on the law & what has happened in last few years.”
The Bench made observations that there are two distinct aspects covers in the present matter i.e. the issue relates to jurisdiction legal issue and other relates to logical issue. “Let’s focus on the jurisdictional issue.”
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CJI Ramana: “Submit written arguments by tomorrow.”
SGI Mehta submitted that the Madras High Court raised concern because some cases are triable by Magistrate and they cannot be committed to the Sessions Court.
The 13th Report submitted by amicus Hansaria on 9.08.2021 shows increment in pending cases of High Courts from 4122 to 4859 till September 2020 on the basis of status report filed by such High Courts.
It also reveals that UOI akin to pending cases with Central Enforcement agencies nor on funding of establishment of Video conferencing facilities in states despite the orders passed by the apex court.
The Writ Petition was filed to reduce criminalisation of politics and rationalise criminal prosecution of elected representatives, sought several prayers, for instance setting up of Special Courts to decide criminal cases akin to MPs/MLAs, and to implement the important electoral reforms proposed by Election Commission, Law Commission and National Commission, setting minimum qualifications and maximum age limit for MPs/MLAs.