Will Order Setting Up Courts For Offences Against Lawmakers: Supreme Court

The Supreme Court Wednesday said that to solve the legal “problem” of lawmakers being tried by special sessions courts for minor offences in some states like Uttar Pradesh, it would direct high courts to set up special magisterial courts where ongoing cases would be transferred and the trials would be carried forward.

Observing that its earlier direction on setting up of special court was “misinterpreted” and “misconceived” by the Allahabad High Court which only set up special sessions court, a special bench headed by Chief Justice N V Ramana said, “The sessions court cannot take the case to be tried by magistrates”.

The bench, also comprising justices D Y Chandrachud and Surya Kant, reserved the order on the vexatious legal issue whether minor offences, triable by magisterial courts, against lawmakers can be prosecuted before a special court presided over by a sessions judge who is senior to a judicial magistrate.

It has been alleged that such trials by sessions judge consequently lead to deprivation of one judicial forum for right to appeal which is ordinarily available to other accused.

“We are contemplating this order. Let the high court set up special magistrate court where such courts are not there. The cases which were being tried by the special sessions courts will be transferred to the magistrates' court. They will be heard from the stage where they were before the sessions court. We think this is the only way to solve the problem,” the bench said while reserving the verdict.

The top court was dealing with the issue whether special court “headed by an officer of the rank of Additional Sessions Judge can try cases which are triable by Magistrate under CrPC”.

The matter has been discussed in the hearing after senior advocate Kapil Sibal, appearing for Abdullah Azam Khan, the politician son of Samajwadi Party leader Azam Khan, moved the plea saying 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.

Irked over the fact that the Allahabad high court did not set up special magisterial court, the bench said that the apex court had given the liberty with respect to numbers of special courts to be set up in the state and it did not say that no special magisterial court was to be constituted.

“The expression - may deem fit and proper - means that you have to constitute both sessions and magistrate court and the discretion given is only with respect to the numbers of the courts...

"There is nothing to show that this court exercised its power under Article 142 of the Constitution to transfer cases, triable by magistrate, to a sessions court. If you created special sessions court to try magistrate triable cases then it was based on misconceived reading of the order,” the bench said.

At the outset, amicus curiae Vijay Hansaria, who was assisted by lawyer Sneha Kalita, referred to his 15th report and said that special courts for expeditious disposal of cases against sitting and former MPs and MLAs, set up by the Supreme Court under its special power, are valid and no illegality can be attached to trial of cases by these courts against lawmakers.

Vijay Hansaria, however, said that he had suggested setting up of special sessions and magisterial courts both.

Referring to apex court orders in setting up of special courts for trying 2G and Coal scam cases, he said under a provision of the CrPC, the apex court has power to transfer a case from one court to another court of “equal or superior jurisdiction”.

"Similar power is possessed by the High Courts under section 407 CrPC. Thus, merely because a case has been transferred from a court of inferior jurisdiction to a court of superior jurisdiction, the same cannot be challenged as illegal,” Vijay Hansaria said.

Senior advocate Garima Prasad, appearing for Uttar Pradesh, opposed the transfer of cases of Abdulla Azam Khan to special magisterial court from sessions court saying that it will defeat the purpose of speedy trial of criminal cases against the lawmakers.

“The special magistrate court can be created in the same court complex,” the bench said.

On November 23, the amicus curiae had filed his report saying that the special courts to prosecute lawmakers are valid as they are set up in pursuance of the apex court's directions.

The 34-page 15th report has been filed by the amicus curiae in a 2016 PIL filed by advocate Ashwini Upadhyay seeking a life ban on lawmakers convicted in heinous criminal cases and speedy disposal of cases against them and deals with the issue whether special court “headed by an officer of the rank of Additional Sessions Judge can try cases which are triable by Magistrate under CrPC”.

The report said the Allahabad High Court may be directed to constitute Special Court both at the Sessions level and Magistrate levels in all the districts.

The report had urged the bench to clarify that the directions to constitute special courts will not affect the orders passed by such courts at the sessions level in respect of cases triable by Magistrate under the CrPC.

On November 15, the apex court had said that jurisdiction of special courts has to conform to the statutes and there would be a “very serious problem”, if these courts decide this aspect.

The top court 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.