SUPREME COURT UPDATES

High Court nod must to drop MP|MLA criminal cases: Supreme Court

Three-judge bench led by CJI Ramana issues directions after amicus curiae cite instances of proposals to withdraw cases against MLAs belonging to that state's ruling party.

Taking note of various state governments withdrawing criminal cases against MPs and MLAs, the Supreme Court on Tuesday ordered that criminal cases against lawmakers cannot be withdrawn without a prior nod from the concerned high court.

Senior advocate Vijay Hansaria and lawyer Sneha Kalita had brought the matter to the court’s notice when the bench was hearing the speedy disposal of cases against elected representatives. The two are assisting the bench as amicus curiae in the matter.

Misuse of Power under Section 321 CRPC

Learned amicus has drawn our attention to various instances across the country, wherein various State Governments have resorted to the withdrawal of numerous criminal cases pending against M.P./M.L.A. by utilising the power vested under Section 321, Cr.P.C.

The power under Section 321, Cr.P.C. is a responsibility that is to be utilized in the public interest and cannot be used for extraneous and political considerations as mentioned in the order sheet of hearing. This power is required to be utilized with utmost good faith to serve the larger public interest.

Recently, this Court in State of Kerala Vs. K. Ajith, (2021) SCC Online SC 510, held as under:

“The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:

(i) Section 321 entrusts the decision to withdraw from prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;

(ii) The public prosecutor may withdraw from prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;

(iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;

(iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons;

(v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:

(a) The function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;

(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;

(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;

(d) The grant of consent sub-serves the administration of justice; and

(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty-bound to maintain;

(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and

(vii) In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in the exercise of the well-settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent.”

Arguments Making News

Chief Justice N.V. Ramana, heading a bench also comprising Justice Justice Vineet Saran and Justice Surya Kant, prohibited state governments from unilaterally withdrawing cases against lawmakers after amicus curiae Vijay Hansaria told the court that in 2020, Karnataka alone withdrew 61 cases, many of which are against members of the state legislature. Mr Hansaria also referred to media reports on the move by the Uttar Pradesh government to withdraw criminal prosecution against MLAs accused in cases relating to Muzaffarnagar riots in which 65 persons were killed and around 40,000 persons were displaced.

The amicus curiae’s report says that the number of criminal cases pending against sitting and former MPs and MLAs in December 2018 was 4,122, it increased to 4,222 as per the March 2020 report and stood at 4,859 cases in September 2020, registering a jump of 17 per cent over December 2018.

Having barred state governments from unilaterally withdrawing the criminal cases against sitting lawmakers, the top court took exception to the “reluctance” of the Central Bureau of Investigation (CBI) to file status reports in cases where MPs and MLAs are facing criminal charges despite its (top court) September 16, 2020, orders.

Court Directions vide order dated 10.08.2021

In view of the law laid down by this Court, the court deems it appropriate to direct that no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without the leave of the High Court in the respective suo-motu writ petitions registered in pursuance of our order dated 16.09.2020.

The High Courts are requested to examine the withdrawals, whether pending or disposed of since 16.09.2020, in light of guidelines laid down by this Court.

This Court vide order dated 16.09.2020 had recorded the submissions of the learned amicus curiae as under: –

“The High Courts would designate a judicial officer for all such cases, who shall try these cases on priority basis. The judicial officer can be allotted other work depending on the workload, number and nature of criminal cases against MPs/MLAs. The judicial officer so designated shall have continuity of tenure for a minimum period of two years.”

It may be noticed that during the intervening period, we faced a pandemic, which scuttled many Courts in effectively conducting trials, or recording evidence or hearing applications. In this context, the Registrar Generals of all High Courts are directed to furnish the following information in form of the following table :

In the meanwhile, to ensure expeditious disposal of pending cases, it is necessary for this Court to direct the officers presiding over Special Courts or CBI Courts involving the prosecution of MPs or MLAs to continue in their present posts until further orders. This direction, barring the transfer of Judicial Officers, will be subject to their superannuation or death. If any further necessity or emergency arises, the Registrar General of the High Courts is at liberty to make an application before SC for retention or to relieve those officers.

Next date of hearing

23.08.2021

IMAGE: Basic Gyan

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