SC tells HC to issue fresh orders for special magisterial court for trial against MP/MLAs

The Supreme Court on Wednesday said that the Allahabad High Court has misconstrued its order by not creating special magisterial courts for pursuing cases against MPs/MLAs, and instead designated only sessions courts for such purposes.

The top court noted no magisterial courts have been designated as special courts for the trial of cases triable by magistrates in terms of its directions issued on December 4, 2018.

"The notification issued by the High Court on August 16, 2019, is based on an evident misconstruction of its directions," it said.

A bench presided over by Chief Justice N V Ramana directed the High Court to the ensure allocation of criminal cases involving former and sitting legislatures to as many sessions courts and magisterial courts as required.

The court noted that this was essential to ensure that cases that 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 also directed the fresh trial of cases that had been marked to sessions courts, as those were triable by the magistrate court.

"Cases triable by magistrates which are pending before the sessions court in view of the circular of August 16, 2019, shall stand transferred to the court of competent jurisdiction," the court said in its written order.

"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," it added.

The directions in the 2018 order 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 by those enactments, the bench, also comprising Justices D Y Chandrachud and Surya Kant, said.

The court passed its order on writ petitions filed by senior Samajwadi Party leader Azam Khan, and others.

Senior advocate Kapil Sibal, appearing for the petitioner, questioned the validity of the notification issued by the Allahabad High Court, by which cases triable by magistrates were transferred to the special court headed by an officer of the rank of additional sessions judge. He said it was discriminatory as other States created magistrate level courts too for sitting and former MP and MLAs.

"The order of this court makes it abundantly clear that instead of designating one sessions court and one magisterial court in each district, the High Courts were requested 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," the court said.

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