NEW DELHI: The Supreme Court on Tuesday ordered that no prosecution against a Member of Parliament or an MLA shall be withdrawn without the permission of high courts monitoring the cases, thus circumscribing the powers of state governments.
After power changes hands, state governments often tend to invoke Section 321 of the Code of Criminal Procedure that authorises a prosecutor to seek withdrawal of a criminal case against the accused.
A three-judge bench headed by Chief Justice of India N V Ramana issued directions after various instances of the proposed withdrawal of cases against lawmakers of ruling parties in states were flagged by amicus curiae (friend of court) Vijay Hansaria when the bench was hearing the progress in speedy disposal of cases against them.
The bench, in its order, said, “The high courts are requested to examine the withdrawal of cases against MP/MLAs since 16 September, 2020, in reference to the Supreme Court judgment in State of Kerala versus K Ajith.” Till now, it was the trial courts that took the final call on requests for withdrawal of cases.
Hansaria pointed out that in August 2020, the Karnataka government issuing instructions to withdraw 61 cases against MLAs. However, no further action could be taken as a HC order in a PIL stayed the operation of the notification. Uttarakhand sought withdrawal prosecution against sitting MLA Rajkumar Thukral, accused in a murder case registered in 2012. It is still pending before the trial court.
UP chose to withdraw prosecution last year against Sadhvi Prachi and three sitting MLAs Sangeet Som, Suresh Rana and Kapil Dev for making inflammatory statements during the 2013 Muzaffarnagar riots. In Maharashtra, the government decided to withdraw political cases against activists prior to December 31, 2019.
SC seeks chart of judges trying MP, MLA cases
The court directed the registrar generals of all high courts to submit a chart of trial court judges hearing criminal cases against elected lawmakers, cases pending and cases disposed of by them.
On Hansaria’s suggestion that trial judges hearing these cases should not be transferred for at least two years, the apex court said such judges shall continue to be at their post until further orders, unless a judge is due to retire. In that case, the high court will look into the individual cases, the bench said.
The court also expressed displeasure over the Centre’s failure to follow its three prior orders, requiring the government to provide details of pending cases lodged by the CBI and the Enforcement Directorate against elected lawmakers. “When we took this matter up, Centre gave us a commitment that there will be speedy trial in such cases.
But you have done nothing, we can only say this,” the three-judge bench observed. While the ED had submitted the list Monday night, the CBI did not do so. On behalf of the Centre, Solicitor General Tushar Mehta clarified that there was no reluctance on the CBI’s part to furnish the list. “I agree we are lacking, but it is a case of lack of co-ordination and not reluctance,” he said.
No transfer of trial judges
Trial judges hearing cases against MPs/MLAs shall continue to be at their post until further orders
Registrar generals of all HCs to submit chart of trial court judges hearing criminal cases against elected lawmakers, cases pending and cases disposed of by them.