The Supreme Court on Monday decided to examine questions regarding the legal jurisdiction of Special Courts set up to exclusively prosecute Members of Parliament and State Legislative Assemblies for various offences.
The Madras High Court, in a report on October 13 last year through a three-judge Criminal Rules Committee, had raised the issue of the “constitutional validity” of the Special Courts for MPs/MLAs. The Committee had even said that it was not “legally permissible” to create such Special Courts. It had said Special Courts “can only be offence centric and not offender centric”. The High Court Committee had flagged how a Special Court to try an MP/MLA could override the jurisdiction of a Special Court already in existence under an Act, for example POCSO or Prevention of Corruption Act.
The court would also examine whether these Special Courts deprive the accused of their right to a rung of appeal. Here, the argument raised is that some of these cases are triable by Magistrates. In the normal course, if an accused has failed before the Magistrate, he or she could file an appeal against the decision before the Sessions Court. In such cases, the trial judge is the Magistrate. The Sessions Court is the first appellate court and the High Court the second appellate court.
“A major problem”
Petitioners have argued that a Special Court would have the powers of a Sessions Court. If the case of an MLA or MP whose offence can be tried by a Magistrate is directly placed before a Special Court, the accused would lose his right to defend his case before a Magistrate and also is stripped of his right to make his first appeal before a Sessions Court.
A Special Bench of Chief Justice N.V. Ramana, Justices D.Y. Chandrachud and Surya Kant have agreed to hear the issues on November 24.
Senior advocate Kapil Sibal said the issue raises a “major problem and will affect the right to appeal”. He said an administrative order would force a case triable by a Magistrate to be prosecuted by a Sessions Court. Among the suggestions that came up was whether there should be special Magistrate courts along with special Sessions court in every jurisdiction.
Amicus curiae, senior advocate Vijay Hansaria, assisted by advocate Sneha Kalita, said the Special Courts were meant to speedily dispose of cases pending for long. Similar to statutes mandating Special Courts to try particular offences, the State governments, too, in consultation with High Courts, can designate competent judicial officers as Special Courts. Further, the apex court could flex its muscles under Article 142 of the Constitution to direct the formation of Special Courts.
They agreed to address the court in detail in the next hearing.
Withdrawal of cases
In August, the apex court had questioned the States’ commitment towards a speedy trial and prosecution of criminal politicians. It had ordered that a criminal case against an MP or MLA can be withdrawn only after getting the consent of the State High Court concerned.
“Various State governments have resorted to withdrawal of numerous criminal cases pending against MP/MLA by utilising the power vested under Section 321 CrPC. The power under Section 321 CrPC is a responsibility which is to be utilised in public interest, and cannot be used for extraneous and political considerations. This power is required to be utilised with utmost good faith to serve the larger public interest,” the court had directed.
In September, the apex court had asked the Chief Justices of High Courts to head Special Benches and immediately hear long-pending criminal cases against sitting and former legislators.
Over 4400 criminal trials have been held up, some for decades, because powerful MPs and MLAs had approached high courts and got an interim stay. Some date back nearly 40 years. Most are stuck at the stage of framing of criminal charges. These cases range from corruption to money laundering.