A 3-JUDGE bench of the Supreme Court, consisting of the Chief Justice N V Ramana, Dr Justice D Y Chandrachud and Justice Surya Kant, has clarified through an order passed on November 24, 2021, in the case – Ashwini Kumar Upadhyay v. Union of India & Another, that the directions in its order of December 4, 2018 do not mandate the High Courts to transfer cases which are triable by Magistrates to Sessions Courts. Those directions do not supplant the jurisdictional provisions contained either in the Code of Criminal Procedure, 1973 or in other Special enactments governing the trial of offences governed by those enactments. These directions by the Supreme Court mandate the assigning and allocation of criminal cases involving former and sitting legislators to Sessions Courts or, as the case may be, Magisterial Courts.

 

This has to be in accordance with the governing provisions of the law as applicable. Consequently, Where the case is triable by a Magistrate under the Penal Code, the case would have to be assigned /allocated to a court of a Magistrate vested with jurisdiction and the order of the Supreme Court dated December 4, 2018 cannot be construed as a direction requiring the trial of the case by a Sessions Court. The Supreme Court has pointed out that in the State of Uttar Pradesh, no Magisterial Courts have been designated as Special Courts for the trial of cases triable by Magistrates in terms of the directions by this Court on December 4, 2018. The Notification issued by the Allahabad High Court on August 16, 2019 is based upon evident misconstruction of the directions contained n the order of the SC. Now, the SC expects the Allahabad HC to ensure allocation of criminal cases involving former and sitting legislators to as many Sessions Courts and Magisterial Courts as required, in order that cases which are triable by a Magistrate are assigned to a designated Court of a Magistrate, while cases triable by Sessions Court are assigned to a Court of Sessions.

 

The Supreme Court has further directed that cases triable by Magistrates which are pending before the Sessions Court in view of the Circular of August 16, 2019 shall stand transferred to the Court of the competent jurisdiction. However, the entire record and proceedings shall be transferred to the Court of the designated Magistrate and the proceedings shall commence from the stage which has been reached prior to the transfer of the proceedings, as a consequence of which the trial shall not have to commence afresh. In its order of December 4, 2018, the SC has made abundantly clear that instead of designation one Sessions Court and one Magisterial Court in each district, the High Courts were requested to assign and allocate criminal cases involving former and sitting legislators to as many Sessions Courts and Magisterial Courts as each HC would consider appropriate, fit and expedient. Three petitions were filed invoking the jurisdiction of the Supreme Court under Article 32 of the Constitution of India, seeking transfer of their trials from the Court of the Special Judge and Addl. Sessions Judge, MP/MLA Court, Rampur to the Magistrate having jurisdiction. All the petitioners’ cases relate to offences punishable under Sections 420, 467, 468, 471 etc. On August 16, 2019, the Allahabad HC issued a Notification by which Special Courts of Addl. District and Session Judges were constituted for 62 out of the74 districts in the State of Uttar Pradesh. This Notification purports to have been issued in pursuance of the order of the SC passed by it on December 4, 2018. Initially, on December 14, 2017, the SC issued directions for setting up Fast Track Courts for the trial of cases pending against elected MPs/MLAs.

 

The order clarified that the directions were “tentative at this stage” so as to get the court(s) operational and functional. The Court indicated that as and when necessary changes were required to be made in those directions, or if any additional directions were required, those will be issued from time to time. On September 16, 2020, the SC issued further directions by which the Chief Justices of the HCs were to submit an action plan for rationalising the number of Special Courts required and covering the aspects: 1. Total number of pending cases in each district 2. Required number of proportionate Special Courts. 3. Number of Courts currently available 4. Number of Judges and the subject categories of the cases 5. Tenure of the Judges to be designated 6. Number of cases to be assigned to each Judge 7. Expected time for disposal of the cases 8. Distance of the Courts to be designated 9. Adequacy of infrastructure. While preparing the Action Plan, the Chief Justices were also expected to consider, in the event the trials are already ongoing in an expeditious manner, whether transferring the same to a different Court would be necessary and appropriate.

 

In the Writ Petition (Civil) 699/2016, the SC has passed an order on August 10, 2021, as under: “In the meanwhile, to ensure expeditious disposal of pending cases, it is necessary for this Court to direct the officers presiding over Special Courts or Central Bureau of Investigation (CBI) Courts involving prosecution of MPs / MLAs to continue in their present posts until further orders. “This direction, barring transfer of judicial officers, will be subject to their superannuation or death. If any further necessity or emergency arises, the Registrar General of High Courts are at liberty to make an application before us for retention or to relieve those officers.” The Supreme Court’s directions of December 4, 2018 along with this clarification shall govern the generality of cases involving former and sitting lawmakers in the State of UP which are to be tried by Special Courts, by the Sessions Courts or, as the case may be, Magistrates’ Courts in terms of the provisions of the Code of Criminal Procedure, 1973 or a special enactment governing the trial of the offence with which the accused is charged. The High Court has been directed to issue a fresh Circular in conformity of the present order.