The Supreme Court has posted the case for hearing on November 24.
Jurisdiction of special criminal courts, trying cases against sitting and former MPs and MLAs has to conform to the statutes and there would be a “very serious problem”, if this court decides this aspect, the Supreme Court orally observed on Monday.
The observations were made while the top court agreed to examine the legal question as to whether the minor criminal offences, triable by a magisterial court, against the lawmakers, can be prosecuted before a special court presided over by a sessions judge, who is senior to a judicial magistrate and consequently allegedly leads deprivation of one judicial forum of right to appeal which is ordinarily available to all accused.
A bench headed by Chief Justice NV Ramana was told by senior advocate Kapil Sibal, appearing for Abdullah Azam Khan, the politician son of Samajwadi Party leader Azam Khan, that his client has been prosecuted by a special court, manned by a sessions judge, in cases which should have been tried by magistrates as they are of minor offences.
“We have no problems with the matters being prosecuted at the level of Sessions court but it must be either provided by the statute or under Article 142 of the Constitution,” the senior advocate told the bench which also comprised justices D Y Chandrachud and Surya Kant.
The top court prima facie seemed in agreement with the submissions and said, ”Two distinct issues are here and so far as the jurisdiction of this (apex) court is concerned, it can direct that a particular judge or trial court will be the special court to try a certain type of cases under Article 142 (special power) of the Constitution and that cannot be questioned.”
It said the other separate issue is as to what would be the nature of the jurisdiction of these special courts.
“Such jurisdiction has to be in accordance with the statute. It would be either under the CrPC (Code of Criminal Procedure) or if there is a special Act such as the SC/ST Act of the Prevention of Corruption Act. It has to conform to the statutes. If the statutes say that the offence is triable by a court of magistrates then this court while exercising its power under Article 142 cannot say that the jurisdiction will be exercised by a court of sessions and because that will be a very serious problem,” the bench said.
It also referred to Section 377 of the CrPC and said that it provides for an appeal before the sessions judge if the order has been passed by a magistrate and before a high court if the order is passed by the sessions judge.
“The constitution of the special court per se has no difficulty at all. So far as setting up a special court for trying the coal scam cases is concerned, there was no difficulty at all ... it is open to the Supreme Court, but you cannot disturb the statutory arrangements either under the special law or under the CrPC,” it observed.
The bench, which was hearing the PIL filed in 2016 seeking a life ban on lawmakers convicted in heinous criminal cases and speedy disposal of cases against them, has now posted the case for hearing on November 24.
Earlier, it had permitted Bombay, Allahabad, and the Punjab Haryana High Courts to transfer some special judges, trying criminal cases against sitting and former MPs and MLAs, to other courts in their respective states on grounds including “administrative exigencies” and asked them to find suitable substitutes quickly to ensure that such trials are not delayed.
The top court, hearing a PIL filed by advocate and BJP leader Ashwini Upadhyay, has been passing a slew of directions time-to-time for ensuring speedy investigation by the CBI and other agencies and conclusion of trials.
It had ordered the setting up of additional special courts by the high courts.
It had expressed its “deep concern” over tardy probe and prosecution in CBI cases against the lawmakers and had issued a slew of directions for ensuring speedy investigation by the agency and conclusion of trials, besides setting up additional special courts by the high courts.
It had asked high courts to set up special courts wherever such additional courts are required to be constituted for expeditious disposal of pending trials and apprise it of any “non-cooperation by the Central or State Governments” on the issue.
As per the CBI report, 121 cases were pending trial before different CBI Courts involving sitting and former MPs and 112 matters pending against serving and former MLAs.
Taking note of status reports, it had said the high courts shall constitute special CBI Courts wherever they are needed to be set up for expeditious disposal of pending trials.
The special courts are needed to be set up in different parts of states where more than 100 cases are pending to ensure easy accessibility to the witnesses and decongestion of existing infrastructure, it had said.
(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)