‘4,442 cases against MP/MLAs, in different courts of the Country; Amicus Curiae submits report in SC

(Judicial Quest News Network)

“Advocate Ashwini Kumar Upadhyay filed a PIL in SC seeking speedy disposal of criminal cases against former MPs and MLAs, on the directions of the court Vijay Hansaria, Senior Advocate, Amicus Curiae submitted this report.

In pursuance to the directions issued by the Apex Court in the PIL filed by Ashwini Kumar Upadhyay seeking the speedy disposal of criminal cases against former and present MPs and MLAs. In this regard all High Courts across the country had been directed to compile a list of criminal cases against former and present legislators.

The report says that “There are 413 cases in respect of offences, which are punishable with imprisonment for life, out of which in 174 cases sitting MPs/ MLAs are accused.”

The Top Court in its orders dated 5,2020 had directed that registrar Generals of all High Courts would have to furnish information regarding cases pending against MPs/MLAs. Abiding by this order all High Courts have submitted the information in the prescribed format.

The Report of Amicus states that “Other cases include offences under Prevention of Corruption Act 1988, Prevention of Money Laundering Act 2002, Arms Act 1959, Prevention of Damage to Public Property Act, 1984, defamation under section 500 IPC, cheating under section 420 IPC”

The Affidavit mentions that Utter Pradesh has the maximum number of pending cases against MPs and MLAs.Totally there are 1,217 pending cases, out of which sitting legislators are accused in 446 cases.

The Affidavit further states that There are 1217 pending cases, out of which in 446 cases sitting legislators are accused.

• Trial in 85 cases has been held up due to stay granted by higher courts.

• One Special Court was constituted at Allahabad in terms of the directions issued in present case. Presently, the said Special Court is trying cases relating to incidents in adjoining 12 districts.

• Subsequently on 16.08.2029, 62 Special Courts have been constituted in different districts.

• 116 cases relate to offence punishable with life imprisonment. (35 cases against sitting legislators and 81 against former legislators).

Bihar has the second highest criminal cases pending against the MPs/MLAs

There are 531 cases, out of which in 256 cases sitting legislators are accused. • High Court has designated Additional District and Sessions Judge III and senior most ACJM as Special courts in each district for trial of sessions and magisterial cases respectively. These special courts deal with other cases pending before them as well.

• 73 cases relate to offence punishable with life imprisonment. (30 cases against sitting legislators and 43 against former legislators). The Amicus Curie has submitted certain suggestions along with the report to make sure the speedy trial of the cases

SUBMISSIONS 13. In the aforesaid circumstances, the following submissions are made for ensuring expeditious trial of cases where MPs/ MLAs are accused:

(i) Special Courts in every district for MPs/MLAs a. Each High Court may be directed to assign/allocate criminal cases involving former and sitting legislators to as many Sessions Courts and Magisterial Courts as the respective High Courts may consider proper, fit and expedient having regard to the number and nature of pending cases.

Such decisions may be taken by the High Courts within four weeks of the order. b. The State Governments will issue necessary notification in terms of the recommendation of the High Court within two weeks from the receipt of the recommendation. c. Case records to be transferred expeditiously to the Special Courts. (ii) Practice Directions a. Special Courts will give priority to the trial of cases in the following order: i. Offences punishable with death/ life imprisonment;

ii. Offences punishable with imprisonment for 7 years or more;

iii. Other offences. b. Cases involving sitting legislators to be given priority over former legislators. c. Forensic laboratories will give priority in furnishing the report in respect of cases being tried by the Special Courts and will submit all pending reports within one month. 23 d. State Government/ UTs will appoint/ designate at least two Special Public Prosecutors for prosecuting cases in the Special Courts in consultation with District and Sessions Judge in the concerned District. e. No adjournment shall be granted except in rare and exceptional circumstances and for reasons to be recorded. f. The Superintendent of Police of respective District shall be responsible to ensure production of accused persons before the respective courts on the dates fixed and the execution of NBWs issued by the courts. g. The SHO of the concerned police station shall be personally responsible for service of summons to the witnesses and their appearance and deposition in the court. h. Courts will use technology of video conferencing for examination of witnesses and appearance of the accused persons, to the extent possible.

(iii) Cases under stay a. This Hon’ble court in Asian Resurfacing of Road Agency Pvt. Ltd. Vs. CBI, 2018 (16) SCC 299, held as under: “If stay is granted, it should not normally be unconditional or of indefinite duration. Appropriate conditions may be imposed so that the party in whose favour stay is granted is accountable if court finally finds no merit in the matter and the other side suffers loss and injustice. To give effect to the legislative policy and the mandate of Article 21 for speedy justice in criminal cases, if stay is granted, matter should be taken on day-to-day basis and 24 concluded within two-three months. Where the matter remains pending for longer period, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial Court. This timeline is being fixed in view of the fact that such trials are expected to be concluded normally in one to two years.” In view of the law laid down in the aforesaid case, trial courts to proceed with the trial notwithstanding any stay granted by the High Court unless fresh order is passed extending the stay by recording reasons. b. In the alternative, Registrar Generals may be directed to place the matters involving MPs and MLAs before Hon’ble the Chief Justice for appropriate orders for urgent listing of such cases.

(iv) Witness Protection a. Witness protection in all such cases is essential having regard to vulnerability of the witnesses and the influence exercised by the legislators facing criminal trials. This Hon’ble Court in the case of Mahender Chawla vs Union of India, 2018 (16) SCC 299 has framed “Witness Protection Scheme, 2018” and made it applicable to all the States till the enactment of suitable legislation by the Parliament or State legislatures. 25 b. Trial courts shall consider granting of protection under the aforesaid scheme to all the witnesses, without any application by the respective witnesses.

(v) Monitoring by High Courts a. Each High Court shall register a Suo Moto case with the title “In Re: Special Courts for MPs/MLAs” to monitor the progress of cases pending in the State and ensure compliance of directions of this Hon’ble Court. b. The writ petition, so registered shall be heard by a Division Bench of the High Court to be constituted by the Chief Justice. c. A Senior Advocate shall be appointed as Amicus Curie. d. The State shall be represented by the Advocate General or an Additional Advocate General. e. A senior Police officer of the rank not below Inspector General of Police shall be present in the Court in each hearing to furnish requisite information, as and when required. f. Each Special Court will send a monthly status report to the High Court and the High Court, on examination of the same, will issue necessary directions to ensure speedy disposal of cases. g. The case shall be heard by the High Court at such interval as may be necessary; however, at least once three months.