HC nod should be made must to withdraw cases against MLAs: Report

The amicus curiae, in his report, also highlighted recent examples from four states – Karnataka, Uttar Pradesh, Uttarakhand and Maharashtra – where orders under section 321 CrPC were issued to dismiss various cases.

State governments should be allowed to withdraw cases against former or sitting legislators only after the relevant high court’s approval, a report has proposed to the Supreme Court.

Supreme Court of India.

The proposal was made in a petition relating to fast-tracking of criminal trials against sitting and former Members of Parliament and Legislative Assemblies (MPs/MLAs) by court-appointed amicus curiae senior advocate Vijay Hansaria.

The report by Hansaria noted four instances wherein the state governments had issued orders to end criminal cases against politicians by using its power under section 321 of the Code of Criminal Procedure (CrPC). This provision allows a public prosecutor in charge of a case to move a request before the trial judge for permission to withdraw further prosecution of a case.

If the trial judge accepts the request for withdrawal of prosecution, the accused stands discharged (if charges not framed) or acquitted in respect of that particular offence(s).

“This court may be pleased to direct that no prosecution against a Member of Parliament and/or Legislative Assembly/Council (both sitting and former) shall be withdrawn without leave of the High Court,” Hansaria said.

The senior advocate also cited a July 28 judgment of the top court which laid down the principles required for entertaining a request for withdrawal of prosecution under section 321 CrPC, saying that these principles be considered by the high court while considering requests for withdrawal of prosecution.

The July 28 judgment came on an appeal filed by Kerala government, seeking permission to withdraw criminal cases against six of its legislators (four former and two sitting) for alleged acts of vandalism inside the Assembly during budget presentation in March 2015.

Turning down the state’s request, the court noted that the decision to withdraw the cases must subserve the larger interest of administration of justice. It further stated that the court, before allowing such requests, should scrutinise the nature and gravity of offence and its impact upon public life, especially in matters involving public funds and the discharge of a public trust.

The amicus curiae, in his report, also highlighted recent examples from four states – Karnataka, Uttar Pradesh, Uttarakhand and Maharashtra – where orders under section 321 CrPC were issued to dismiss various cases.

In August last year, the Karnataka government had ordered the withdrawal of 61 criminal cases, many of which were filed against sitting legislators of the state assembly.

Similarly, the Uttar Pradesh government last year chose to withdraw the case against political leader Sadhvi Prachi and three sitting MLAs – Sangeet Som, Suresh Rana and Kapil Dev – for their alleged inflammatory statements during the 2013 Muzaffarnagar riots. The amicus cited news reports to show that the withdrawal of prosecution was applicable to 76 criminal cases related to the riots.

Another report from Maharashtra indicated that the state government had decided in December last year to withdraw political cases against activists registered prior to December 31, 2019. This trend was spotted in Uttarakhand too where the high court informed the amicus that in September 2020, the state government had sought withdrawal of prosecution against sitting MLA Rajkumar Thukral in an alleged murder case.

In June this year, the Andhra Pradesh High Court took suo moto cognizance of 11 separate orders passed by various magistrates allowing withdrawal of prosecution in criminal cases pending against chief minister YS Jagan Mohan Reddy. The suo motu petition is still pending before the high court. This case, however, was not cited by the amicus in his report.

“Withdrawn from prosecution u/s 321 CrPC is permissible in public interest and cannot be done for political considerations. Such application can be made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law,” Hansaria said.

Hansaria requested the top court to ensure that the principles laid down in the Kerala case be applied by high courts to examine cases under section 321 of CrPC involving sitting and former legislators.

The case to fast-track trials against legislators is pending in the Supreme Court since 2016 in a PIL filed by BJP leader and advocate Ashwini Kumar Upadhyay.

Due to the Covid-19 pandemic, Hansaria said, the past one year saw no effective trial in cases against politicians. He further informed the court that the Centre had not supplied data on pending cases with regard to offences tried by the Central Bureau of Investigation, Enforcement Directorate among other central agencies against sitting/former legislators.

This information was first sought by the court on September 16, 2020, and since then on two occasions, the Centre sought time.

Hansaria requested the court to direct the Centre to inform the stage of investigation in these cases, share the status of grant of sanctions for prosecution, expected time for completion of the investigation and reasons for delay in the same before the next date of hearing.

Hansaria said that based on periodic reports submitted by high courts, the number of pending cases against sitting and former legislators as of September 2020 was 4,859.

In December 2018, this number stood at 4,122 and gradually increased to 4,222 by March 2020.

Last week, Hansaria had requested the bench headed by Chief Justice of India (CJI) NV Ramana to take up the matter as no hearing in this case has taken place since November last year.