Monday, January 30, 2023

Amicus Curiae suggests measures in 16th report to Supreme Court on expeditious trial of MPs/MLAs in pending cases

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Total 4,984 criminal cases are pending against former and sitting Members of Parliament (MPs) and Members of Legislative Assembly (MLAs) before various Sessions and Magistrate Courts across the country, according to the 16th report submitted by Vijay Hansaria, Senior Advocate, Amicus Curiae in a matter being monitored by the Supreme Court for expeditious disposal of criminal cases against MPs/MLAs.

It is submitted that despite a series of directions by the Top Court and continuous monitoring, as many as 4984 cases are pending out of which 1899 cases are more than five-year-old. The total number of cases pending as on December 2018 were 4110; and as on October 2020 were 4859. Even after disposal of 2775 cases after December 4, 2018, the cases against MPs/MLAs have increased from 4122 to 4984.

“This shows that more and more persons with criminal antecedents are occupying the seats in Parliament and State Legislative Assemblies. It is of utmost necessity that urgent and stringent steps are taken for expeditious disposal of pending criminal cases.”

The report pointed out that Special Courts are constituted in some of the states, whereas in other states, the respective jurisdiction courts are conducting trials in terms of the directions passed from time to time. These jurisdictional Courts conduct the trial of the cases against MPs/MLAs along with discharging other rosters allocated to them. In many of the states, the same judge is a Special Court under various statutes such as SC/ST Act and POCSO Act.

It is further submitted by the Amicus Curiae  that no response has been filed by the Central Government in terms of the order dated August 25, 2021, as regards expeditious investigation/trial of cases, providing infrastructure facilities to the Courts and constitution of the Monitoring Committee to evaluate the reasons for delay of investigation.

“It is necessary that all the Courts trying cases against MPs/MLAs are equipped with necessary infrastructure for conduct of court proceedings through internet facility,” claimed the report.

In the aforesaid circumstances, the amicus seeks the following directions from the Top Court: 
a. The Courts dealing with cases against MPs/MLAs will exclusively try these cases. Other cases would be taken up only after trials of such cases are over. The trial would be conducted on a day to day basis in terms of section 309 Cr.P.C. Necessary allocation of work would be made by the High Court and/or the Principal Sessions Judges of every district within two weeks. 
b. Both the prosecution and defence shall cooperate with the trial of the case and no adjournment shall be granted. In case, the public prosecutor and/or the prosecution fail to co-operate in the expeditious trial, the matter shall be reported to the Chief Secretary of the State who will take necessary remedial measures. In case, the accused delays the trial, his bail shall be cancelled. 
c. The trial court shall send a report on each of the cases where trial has been pending for more than five years before the respective High Courts, as to the reasons for delay and suggest remedial measures. The High Court shall consider these reports on the judicial side in the suo motu writ petitions registered in terms of para 18 of the order dated 16.09.2020 and pass appropriate orders to remove the stagnation of trial. 
d. The Central Government will provide funds for ensuring smooth functioning of Courts through virtual mode i.e. by facilitating availability of video conference facilities. The High Courts shall submit a proposal to the Law Secretary of the Government of India in this regard as to the funds required, which shall be made available by the Central Government within two weeks of the proposal. The funds so released by the Central Government will be subject to final adjustment with the State Government as per sharing pattern. 
e. A Monitoring Committee may be constituted, headed by a former Judge of the Supreme Court or Chief Justice of a High Court to monitor the investigation of cases pending before the Enforcement Directorate, Central Bureau of Investigation and National Investigation Agency in terms of submission recorded in the order dated August 25, 2021. 
f. The trial courts may be directed to pass a specific order in all pending cases that the benefit of the Witness Protection Scheme 2018, has been made available to the witnesses in terms of the order dated November 4, 2020.

The Supreme Court vide order dated November 1, 2018, directed all the High Courts to furnish information as regards pending criminal cases against elected representatives in a prescribed format. Later the Apex Court vide order dated March 5, 2020, directed all the High Courts to furnish information in a revised format as regards pendency of cases against MPs/MLAs and expected time for the completion of trial. Further the Top Court vide order dated 10.08.2021 directed that no prosecution against a sitting or former MP/MLA shall be withdrawn under section 321 Cr.P.C. without the leave of the High Court. Moreover  the Supreme Court vide order dated 10.08.2021 directed that the judicial officers presiding over Special courts or CBI courts involving prosecution of MPs/MLAs shall continue on their posts until further orders and shall not be transferred without leave of the Apex  Court to ensure continuity of trial without disruption.

In 2016, a petition was filed by lawyer and BJP leader Ashwini Kumar Upadhyay, seeking the establishment of special courts to try criminal cases against law makers. The plea also prayed for ensuring expeditious trial of cases against lawmakers and speedy investigation by the CBI and other agencies.

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