[Special MP/MLA courts] Cases triable by Magistrate cannot be assigned to Sessions Court: Supreme Court

The Supreme Court on Wednesday made it clear that jurisdiction of special courts constituted to try criminal cases relating to Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs), cannot be such that cases which are triable by magistrate are assigned to sessions judge (Ashwini Kumar Upadhyay vs Union of India). .A Bench of Chief Justice of India NV Ramana, and Justices DY Chandrachud and Surya Kant said that the assignment of cases to special courts have to be in accordance with Code of Criminal Procedure and other applicable laws."Consequently, where a 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 not to a sessions court)", the top court emphasised.The order was passed after it was brought to the notice of the apex court that an earlier order passed by the top court on December 4, 2018 was misconstrued by the Allahabad High Court as a direction requiring the trial of such cases against MP/MLAs by sessions court.The Supreme Court in the December 2018 order had said that instead of designating one sessions court and one magisterial court in each district, the High Courts were to assign and allocate criminal cases involving former and sitting legislatures to as many sessions courts and magisterial courts as each High Court would consider appropriate fit and expedient.However, in the State of Uttar Pradesh, no magisterial courts were designated as special courts for the trial of cases triable by magistrates in terms of the December 2018 directions of the Supreme Court.Instead, by notification of August 2019, special courts of Additional District and Sessions Judges were constituted for sixty-two out of the seventy-four districts in the State of Uttar Pradesh.This was brought to the notice of the Supreme Court by Samajwadi Party leader Azam Khan whose criminal case got assigned to a sessions judge. Khan had then filed an application stating that his case should be tried by magistrate.Senior Advocate Kapil Sibal, appearing on behalf of Khan, submitted that no magisterial courts have been designated as special courts for the trial of cases triable by magistrates..The Court agreed with the same."The Notification issued by the High Court of Judicature at Allahabad on 16 August 2019 is based on an evident misconstruction of the directions contained in the order of this Court," the Supreme Court said.The directions contained in the order dated December 4, 2018 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, the Supreme Court said.It, therefore, ordered the Allahabad High Court to allocate criminal cases involving former and sitting legislatures to as many sessions courts and magisterial courts as required.The same has to be done in such a manner that cases which are triable by a Magistrate are assigned to a designated Court of a Magistrate, while cases triable by a sessions court are assigned to a designated court of sessions, the Court underscored.."We further direct that cases triable by Magistrates which are pending before the Sessions Court in view of the Circular dated 16 August 2019 shall stand transferred to the Court of 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," the Court further ordered..In passing this order, the top court did not take into account the suggestions put forth by the Amicus Curiae Vijay Hansaria in his 15th Amicus report and also rejected the submissions advanced by Additional Solicitor General SV Raju. .Hansaria had told the Supreme Court that no illegality can be attached to the constitution of special courts at the sessions level for trial of both sessions cases and magisterial trial cases..Hansaria, in his 15th report stated that the constitution of special courts trying cases against Members of Parliament (MPs) and Members of Legislative Assembly (MLAs), under the direction of the Supreme Court issued in exercise of power under Article 142 of the Constitution, is valid, "and no illegality or unconstitutionality can be attached to trial of cases by these Courts against MPs/MLAs.”.[Read Order]