No Illegality In Special MP/MLA Courts At Sessions Level Handling Cases Triable By Magistrates : Amicus Tells Supreme Court

"While the constitution of Special Courts both at the Sessions level and the Magistrate level is desirable, no illegality can be attached to the constitution of Special Courts at Sessions level for trial of both Sessions cases and Magisterial Trial cases" Senior Advocate Vijay Hansaria has submitted before the Supreme Court.

Mr Hansaria, who is the Amicus Curiae in the matter pertaining to constitution of Special Courts for trial of offences against MPs/ MLAs has made the submissions through his 15th Report submitted on 23rd November, through Advocate Sneha Kalita.

The Amicus has pointed out two issues which need to considered by the Court:

• Whether Special Court MP/ MLA headed by an officer of the rank of Additional Sessions Judge can try cases which are triable by Magistrate under Cr.P.C.?
  
• Whether Special Court can try offenses without a committal order under section 209 Cr.P.C. and try cases without cognizance being taken by the magistrate under section 193 Cr.P.C.?
  

According to the Amicus, constitution of Special Courts at Sessions level for trial of both Sessions cases and Magisterial Trial cases is not illegal for following reasons:

• The accused persons will get a fair trial before the said Court according to Constitutional norm.
• The right of first appeal is not taken away, and instead of Session Court, the appeal would lie to the High Court.
  
• The right of revision is not an inherent right but only a supervisory jurisdiction.
  
• Constituted Under Direction of Supreme Court Court in exercise of power under Article 142 of the Constitution
  
• The cases are tried by the independent and qualified judges as per the procedure laid down in the Code of Criminal Procedure.
  
• MPs and MLAs constitute a separate class in themselves and expeditious trial of criminal cases against them by Special Courts do not suffer from any constitutional infirmity.

The report is filed in the wake of the Supreme Court deciding to examine the issue whether Article 142 directions can override the statutory jurisdiction conferred on the Courts. The issue came before the Court after SP leader Azam Khan filed an application disputing the jurisdiction of Sessions Courts(which are notified as Special MP/MLA Courts) to try cases which are exclusively triable by Magistrates.

The Amicus has submitted that the Allahabad High Court and the State of U.P. along with other High Courts and State Governments may be directed to constitute Special Court both at the Sessions level and Magistrate levels in all the Districts. 

The same may be done as considered appropriate by the High Court having regard to the number of cases and geographical location.

The Amicus has further submitted that the Special Courts may be directed to conduct the trial against the MP/ MLAs on priority and on day to day basis, and take up other cases only after the trial of criminal cases of MPs/ MLAs are completed.

The Amicus has however urged the Court to clarify that the directions to constitute Special Court both at Sessions level and Magistrate level will not affect the orders passed by the Special Courts at the Sessions level in respect of cases triable by Magistrate under the Cr.P.C.

It has been sought to be clarified that the Magisterial trial cases already concluded or pending trial will not be open to challenge only on the ground that the final judgement and the interim orders have been passed by the Special Court headed by an officer of the rank of Sessions Judge.

The Amicus has also submitted that the Special Court manned by the Sessions Judge or Additional Sessions Judge shall transfer cases triable by Magistrate to the Special Court presided over by the Magistrate under the respective jurisdiction and the Magistrate shall conduct the trial from the stage the file has been received.

Neither the committal order nor taking of cognizance by magistrate are ingredients of a fair trial: Amicus

With regard to the second issue, as to whether Special Court can try offences without a committal order under Cr.P.C, the Amicus has submitted that taking cognizance under section 193 Cr.P.C. or an order of committal by the magistrate under section 209 Cr.P.C. is not necessary in case of trial by Special Court, be it statutory Special Court or Special Court constituted by Supreme Court under Article 142 of the Constitution.

The Amicus has submitted that the absence of order of cognizance or a committal order by magistrate is an irregularity of procedure and does not result in failure of justice and the proceedings are saved by section 465 Cr.P.C.

Background: The Amicus Curies has filed the report as his submission in the following petitions being considered by a CJI led Bench:

• A plea filed regarding pendency of criminal cases against MPs & MLAs and expeditious disposal of the same by setting up of Special Courts.( Ashwini Kumar Upadhyay vs Union of India)
• Pleas seeking directions for directing the institution and setting up of a Special Magistrate Court in Rampur, Uttar Pradesh for trying the matters relating to MPs and MLAs. (Tazheen Fatima vs Union of India & Ors)
  

The legal issue at hand before the Court relates to jurisdiction of the special courts which has been challenged stating that matters triable by Magistrate cannot be tried by special judge Court presided by District Judge Cadre officer as it will deprive them of right to appeal.

The petitioners have assailed the notification dated 16.08.2019 issued by the Allahabad High Court in so far as the cases triable by Magistrates are transferred to the Special Court headed by an officer of the rank of Additional Sessions Judge.

Case Titles: Ashwini Kumar Upadhyay vs Union of India, Tazheen Fatima vs Union of India & Ors

Click here to read/download the amicus report