Can't Allow Withdrawal Of Cases Against MPs/MLAs On Ground Of Malicious Prosecution Without HC Sanction : Supreme Court

The Supreme Court on Wednesday disagreed with a proposal to allow state governments to withdraw criminal cases against sitting and former MPs/MLAs on ground of malicious prosecution.

The Court clarified that the sanction of the High Court is needed even to withdraw cases on ground of malicious prosecution.

"We are not against withdrawing cases if malicious prosecution is there, but it has to be scrutinised by courts. We are not opposing the withdrawal of cases but at the same time, it must be examined by Judicial officers. Let it be examined by High Courts and if high court is satisfied they will allow the Government", the Chief Justice of India NV Ramana said.

A Special Bench comprising CJI Ramana, Justice DY Chandrachud and Justice Surya Kant made the observation while hearing a plea filed regarding pendency of criminal cases against MPs & MLAs and expeditious disposal of the same by setting up of Special Courts.

The Court however opined that it cannot allow cases to be withdrawn only on grounds of "malicious prosecution" as the same can be done by State governments without any hesitation if they wish to withdraw cases.

"This is the stand of Government in all cases! They will simply add a word." CJI said.

The observations were made in response to Amicus Curiae Vijay Hansaria's suggestion to issue the following directions in view of the repeated misuse of power by the State in withdrawing prosecution for political and extraneous considerations:

• Court may direct States to issue instructions to the public prosecutor only when it is of the opinion that the prosecution was launched maliciously and there is no foundation for prosecuting the accused.

• The reasons for passing such orders should be recorded for each individual case by the Home Secretary. No general order can be passed for the withdrawal of cases for a category of persons or offences committed during a particular period

"We have seen that suggestion, we are not in a position to agree at present." the Bench responded.

The Bench then told the Amicus " You yourself said there are hundreds and thousands of cases which they are withdrawing. You want us to add 'malicious prosecution' and that would be sufficient. That can be done by the government without any hesitation if they want to withdraw the cases. That can't be, we cannot allow such sentences, and allow them to withdraw cases."

The Supreme Court had on 10th August 2021 directed that no prosecution against sitting of former MPs snd MLAs will be withdrawn without the permission of the High Court of the concerned state.

The High Courts were requested to examine the withdrawals, whether pending or disposed of after 16.09.2020, in the light of guidelines laid down by the Supreme Court regarding withdrawal of cases in the recent Kerala assembly ruckus case (State of Kerala vs K Ajith and others)

The Bench issued the direction pursuant to Amicus Curiae Senior Advocate Vijay Hansaria's submission that no prosecution should be allowed to be withdrawn under section 321 Cr.P.C. against a Member of Parliament or a Member of Legislative Assembly/ Council (sitting and former) without leave of the High Court.

Case Title: Ashwini Kumar Upadhyay & Ors. v. Union of India & Ors.

Also Read: Supreme Court Bars Withdrawal Of Criminal Prosecution Against MPs/MLAs Without Permission Of High Court

No Priority For MPs/MLAs In Hearing Of Criminal Appeals: Supreme Court Clarifies