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Thursday, September 16, 2021

Supreme Court says states can’t clear MPs, MLAs in cases without HC nod

“We deem it appropriate to direct that no prosecution against a sitting or former MP/ MLA shall be withdrawn without the leave of the high court,” said a Bench headed by Chief Justice of India N V Ramana, accepting a request by Senior Advocate Vijay Hansaria, who was appointed amicus curiae.

By: Express News Service | New Delhi |
Updated: August 11, 2021 12:09:00 am
A SC bench headed by Chief Justice N V Ramana also said that it was mulling setting up of a special bench at the top court to monitor the cases against politicians.

IN A move to check instances of state governments withdrawing cases against MPs and MLAs, the Supreme Court directed on Tuesday that such action cannot be taken without the consent of the state high court.

“We deem it appropriate to direct that no prosecution against a sitting or former MP/ MLA shall be withdrawn without the leave of the high court,” said a Bench headed by Chief Justice of India N V Ramana, accepting a request by Senior Advocate Vijay Hansaria, who was appointed amicus curiae.

The Bench, also comprising Justices Vineet Saran and Surya Kant, asked the high courts “to examine the withdrawals, whether pending or disposed of since 16.09.2020, in light of guidelines laid down by this court”. That’s when the court had asked high court Chief Justices to constitute Special Benches to monitor the progress of criminal cases against sitting and former legislators .

Saying that the Covid-19 pandemic had hit court work, the Bench directed the Registrar Generals of all high courts to furnish details of posting of judges and the number of pending and disposed cases before them.

It also directed that “in the meanwhile, to ensure expeditious disposal of pending cases”, judicial officers presiding over Special Courts or CBI Courts involving prosecution of MPs or MLAs shall not be transferred until further orders.

The Bench was hearing a pending PIL filed by Advocate Ashwini Upadhyay seeking establishment of fast-track courts for cases against legislators. In November 2017, the Supreme Court had ordered setting-up of Special Courts in each state to try the pending cases. Accordingly, 12 such courts were set up across the country.

On Tuesday, Hansaria pointed to instances of states withdrawing cases against legislators, under Section 321 of The Code of Criminal Procedure, 1973. Under this provision, the public prosecutor or assistant public prosecutor may, with the consent of the court, withdraw from the prosecution of a case at any time before the judgment is pronounced.

In Karnataka, the state government, in an order dated August 31, 2020, decided to withdraw 61 cases, many of which were against elected representatives of the State Legislature. Following a PIL, the state HC directed that no further steps be taken on the basis of the government order.

The amicus said that in Uttarakhand, an application had been filed for withdrawing a murder case against sitting MLA Rajkumar Thukral.

The amicus also cited news reports that the “Government of Uttar Pradesh is seeking to withdraw prosecution of… Sangeet Som, MLA from Sardhana (Meerut)… Suresh Rana, MLA from Thana Bhawan Assembly… Kapil Dev, who represents the Muzaffarnagar Sadar seat in the Assembly; and…political leader Sadhvi Prachi”.

Another news report on the Maharashtra government’s decision to withdraw political cases against activists registered before December 31, 2019, was also cited. The amicus said the report stated that on March 14, 2016, the government issued an order that allowed withdrawal of similar cases registered between May 2005 and November 2014.

Urging the Bench to direct that prosecution against MPs/MLAs should not be withdrawn without the high court’s consent, the amicus said withdrawal from prosecution under Section 321 CrPC is permissible in public interest and cannot be done for political consideration. “Such application can be made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law,” he said.

The court on Tuesday also expressed displeasure over non-filing of the status report on cases against MPs/MLAs being investigated by central agencies like CBI and Enforcement Directorate, and said it would consider setting up a special bench to hear the matter.

CJI Ramana reminded Solicitor General Tushar Mehta that the court had passed orders in September 2020, when he sought more time to submit the status report.

“Then there was pandemic and we couldn’t take up these matters. Today also, it’s the same situation, except for a bunch of documents filed by ED, which is also not in format,” said the CJI, adding that the ED’s documents did not have details.

The SG said he had taken it up with the CBI Director. “You have to understand, when matter started, we were sure the government will make sure disposal of these cases. But nothing has happened from your side,” the CJI said, giving two more weeks as a “final chance” to the government.

Mehta said he stands by the government’s commitment to ensure prosecution of elected representatives. But the CJI said, “we think it’s better a special Bench is constituted for this case. It doesn’t work like this”.

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