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2021 Supreme(SC) 1196

SUPREME COURT OF INDIA
N.V. Ramana, CJI., Vineet Saran, Surya Kant, JJ.
Ashwini Kumar Upadhyay - Petitioner
Versus
Union Of India & Anr. - Respondents
Writ Petition(s)(Civil) No(s).699/2016
Decided On : 10-08-2021

Advocates:
Advocate Appeared:
For the Amicus Curiae : Mr. Vijay Hansaria, Sr.Adv.,
For the Petitioner, Mr. Vikas Singh, Sr.Adv., Mr. Ashwani Kumar Dubey, AOR Ms. Kamini Jaiswal, Adv., Mr. Abhimanue Shrestha, AOR Ms. Rani Mishra, Adv.,
For the Respondent: Mr. Tushar Mehta, SG, Mr. Aman Lekhi, ASG Ms. V. Mohana, Sr. Adv., Mr. Rajat Nair, Adv., Ms. Neela Kedar Gokhale, Adv., Mr. Mohd. Akhil, Adv., Ms. Sunita Sharma, Adva., Mr. R. R. Rajesh, Adv., Mr. Arvind Kumar Sharma, AOR, Mr. Amrish Sharma, AOR, Mr. Shiv Ram Sharma, AOR, Mr. Vishwaditya Sharma, Adv.,
For State of Haryana : Mr. Anil Grover, Sr. AAG, Mr. Samar Vijay Singh, AOR Ms. Noopur Singhal, Adv., Mr. Rahul Khurana, Adv., Mr. Sanjay Kumar Visen, AOR
For State of H.P. : Mr. Abhinav Mukerji, AAG, Mrs. Bihu Sharma, Adv., Ms. Pratishtha Vij, Adv., Mr. Akshay C. Shrivastava, Adv.,
For Raj.High Court : Mr. Abhinav Mukerji, AAG, Mrs. Bihu Sharma, Adv., Ms. Pratishtha Vij, Adv., Mr. Akshay C. Shrivastava, Adv.,
For State of Jharkhand : Mr. Tapesh Kumar Singh, AAG,, Mr. Aditya Pratap Singh, Adv., Mrs. Bhaswati Singh, Adv.,
For High Court of Kerala : Mr. P.N. Ravindran, Sr. Adv., Mr. T.G. Narayanan Nair, AOR, Mr. P.H. Parekh, Sr.Adv., For M/S. Parekh & Co., AOR
For State of Maharashtra : Mr. Sachin Patil, AOR, Mr. Rahul Chitnis, Adv., Mr. Aaditya A. Pande, Adv., Mr. Geo Joseph, Adv.,
For State of Andhra Pradesh : Mr. Mahfooz A. Nazki, AOR, Mr. Polanki Gowtham, Adv., Mr. Shaik Mohamad Haneef, Adv., Mr. T. Vijaya Bhaskar Reddy, Adv., Mr. Amitabh Sinha, Adv., Mr. K.V. Girish Chowdary, Adv.,
For State of Meghalaya : Mr. Avijit Mani Tripathi, AOR, Mr. Shaurya Sahay, Adv., Ms. Rekha Bakshi, Adv.,
For State of Kerala : Mr. G. Prakash, AOR, Mr. Jishnu M.L, Adv., Ms. Priyanka Prakash, Adv., Ms. Beena Prakash, Adv., Mr. Pranav Sachdeva, AOR, Mr. Balaji Srinivasan, AOR, Mr. Mukesh Kumar Maroria, AOR
For R.No.2(ECI) : Mr. Sidhant Kumar, Adv., Mr. Sahil Tagotra, AOR
For State of Gujarat : Ms. Deepanwita Priyanka, Adv., Mr. Aniruddha P. Mayee, AOR
For State of Assam : Mr. Shuvodeep Roy, AOR
For State of Tripura : Mr. Shuvodeep Roy, AOR, Mr. Kabir Shankar Bose, Adv.,
For GNCTD : Mr. Chirag M. Shroff, AOR
For High Court of Allahabad : Mr. Sunny Choudhary, AOR
For Intervenor : Mr. Prashanto Chandra Sen, Sr. Adv., Mr. P. S. Sudheer, AOR, Mr. Kaustubh Singh, Adv., Mrs. Anil Katiyar, AOR, Mr. Sibo Sankar Mishra, AOR
For State of Manipur : Mr. Pukhrambam Ramesh Kumar, AOR Ms. Anupama Ngangom, Adv., Mr. Karun Sharma, Adv., Mr. Kabir Dixit, AOR
For High Court of J&K : Mr. Anupam Raina, AOR, Mr. Sunando Raha, Adv.,
For State of Punjab : Mr. Karan Bharihoke, AOR, Mr. Siddant Sharma, Adv., Ms. Neha Sahai Bharihoke, Adv., Ms. Hemantika Wahi, AOR
For Sikkim High Court : Mr. Avneesh Arputham, Adv., For M/s. Arputham Aruna and Co, AOR, Mr. Annam D. N. Rao, AOR
For High Court of Delhi : Mr. Venkatesh Rao, Adv., Mr. Rahul Mishra, Adv., Ms. Ananya Khandelwal, Adv., Ms. Sangeetha M Biju, Adv., Mrs. Swarupama Chaturvedi, AOR
For State of U.P. : Mr. Sanjay Kumar Tyagi, AOR
For High Court of Manipur : Mr. Sharan Thakur, Adv., Mr. Mahesh Thakur, AOR, Mr. Siddharth Thakur, Adv.,
For High Court of Chhattisgarh : Mr. Apoorv Kurup, AOR Ms. Nidhi Mittal, Adv., Mr. Kunal Chatterji, AOR, Mr. Satish Pandey, AOR Ms. Rachana Srivastava, AOR, Mr. P. V. Yogeswaran, AOR, Mr. Anil Shrivastav, AOR
For State of Sikkim : Mr. Raghvendra Kumar, Adv., Mr. Anand Kumar Dubey, Adv., Mr. Nishant Verma, Adv., Mr. Narendra Kumar, AOR Intervenor-in-person, AOR, Mr. Anandh Kannan N., AOR
For High Court of Jharkhand : Mr. Ambhoj Kumar Sinha, AOR Ms. Uttara Babbar, AOR, Mr. Manan Bansal, Adv.,
For State of Mizoram : Mr. Siddhesh Kotwal, Adv., Ms. Ana Upadhyay, Adv., Ms. Manya Hasija, Adv., Mr. Nirnimesh Dube, Adv., Mr. Manoj Gorkela, Adv., Ms. Apurva, Adv., Ms. Tara Pokhriyal, Adv., Ms. Preeti Nair, Adv., For M/s. Gorkela Law Office, AOR Ms. Sneha Kalita, AOR, Mr. Abhishek Atrey, AOR
For High Court of M.P. : Mr. Arjun Garg, AOR, Mr. Aakash Nandolia, Adv., Mr. Ashok Mathur, AOR
For High Court of Tripura : Mr. Naresh K. Sharma, AOR, Mr. Aravindh S., AOR, Mr. G. N. Reddy, AOR
For State of Karnataka & for High Court of Karnataka : Mr. V. N. Raghupathy, AOR, Mr. Md. Apzal Ansari, Adv.,
For State of Nagaland : Mrs. K. Enatoli Sema, AOR, Mr. Amit Kumar Singh, Adv., Ms. Chubalemla Chang, Adv.,
For UT of J&K : Ms. Taruna Ardhendumauli Prasad, AOR, Mr. Parth Awasthi, Adv., Mr. Abhimanue Shrestha, AOR Ms. Radhika Gautam, AOR
For State of West Bengal : Mr. Suhaan Mukerji, Adv., Mr. Vishal Prasad, Adv., Mr. Nikhil Parikshith, Adv., Mr. Abhishek Manchanda, Adv., Mr. Sayandeep Pahari, Adv., For M/s. PlR Chambers and Co., AOR, Mr. Ranjan Mukherjee, AOR
For UT of Andaman & Nicobar Islands : Ms. G. Indira, AOR, Mr. M.K. Mondal, Adv., Mr. Gandeepan, Adv., Mr. Shantanu Sagar, AOR Ms. Aswathi M.K., AOR

The main legal point established in the judgment is the requirement for the High Court's leave for the withdrawal of prosecution against sitting or former M.P./M.L.A. and the need for continuity of tenure for Judicial Officers, especially in the context of the pandemic's impact on court proceedings.

Headnote:

Misuse of Prosecutor’s Power - Continuity of Tenure for Judicial Officer - Section 321, Cr.P.C. - Misuse of the power under Section 321, Cr.P.C. and Continuity of tenure for Judicial Officers were discussed. The court referred to the principles laid down by the Supreme Court in State of Kerala Vs. K. Ajith, (2021) SCC Online SC 510, and directed that no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without the leave of the High Court. It also directed the officers presiding over Special Courts or CBI Courts involving prosecution of MPs or MLAs to continue in their present posts until further orders.

Fact of the Case:

The Court addressed concerns related to the misuse of the Prosecutor’s power under Section 321, Cr.P.C. and the continuity of tenure for Judicial Officers. The learned amicus curiae filed a report addressing various concerns, and the Court decided to address the first two issues immediately.

Finding of the Court:

The Court found that the power under Section 321, Cr.P.C. should be utilized in public interest and not for extraneous and political considerations. It also emphasized the need for continuity of tenure for Judicial Officers, especially in light of the pandemic's impact on court proceedings.

Issues: The issues addressed by the Court included the misuse of Prosecutor’s power under Section 321, Cr.P.C. and the continuity of tenure for Judicial Officers.

Ratio Decidendi: The Court relied on the principles laid down by the Supreme Court in State of Kerala Vs. K. Ajith, (2021) SCC Online SC 510, to establish the guidelines for the withdrawal of prosecution against sitting or former M.P./M.L.A. It also emphasized the need for continuity of tenure for Judicial Officers, especially in the context of the pandemic.

Final Decision: The Court directed that no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without the leave of the High Court and ordered the officers presiding over Special Courts or CBI Courts involving prosecution of MPs or MLAs to continue in their present posts until further orders.

ORDER :

The Court is convened through Video Conferencing.

1. At the commencement of hearing, Mr. Tushar Mehta, learned Solicitor General appearing on behalf of the Union of India seeks further time to comply with the directions passed by this Court on 10.09.2020, 16.09.2020, 06.10.2020 and 04.11.2020 regarding filing of Status Report regarding pending cases against the legislators (sitting or former).

2. Finally, two weeks’ time is granted to the learned Solicitor General to file response/affidavit in compliance of the directions given by this Court vide orders dated 10.09.2020, 16.09.2020, 06.10.2020 and 04.11.2020 with a copy in advance to the learned amicus curiae within ten days.

3. We have heard Mr.Vijay Hansaria, learned amicus curiae, Mr. Tushar Mehta, learned Solicitor General as also the learned counsel for the parties.

4. At the outset we may note that the learned Amicus has filed his 13th Report dated 09.08.2021. The Report, inter alia, addresses various concerns which are broadly indicated as under:

    (I) Misuse of the Prosecutor’s power to withdraw cases under Section 321, Cr.P.C.

    (II) Continuity of tenure of Judicial Officers

    (III) Jurisdiction of Special Court (M.P./M.L.A.) to try cases against legislators elected from other States

    (IV) Jurisdiction of Special Courts with respect to cases triable by Magistrates

    (V) Trial of cases where an M.P./M.L.A. is the complainant

    (VI) Safe and secure witness examination facility

5. We are inclined to address the first two issues by this order as these issues are of immediate concern and may be easily disposed of. It may not be out of context to state that issues no. 3 and 4 give rise to substantive question of law which may require some elaborate arguments, which will be taken up on a subsequent date.

Misuse of Prosecutor’s Power u/s 321 of Cr.P.C.

6. Learned amicus has drawn our attention to various instances across the country, wherein various State Governments have resorted to withdrawal of numerous criminal cases pending against M.P./M.L.A. by utilising the power vested under Section 321, Cr.P.C. It merits mentioning that the power under Section 321, Cr.P.C. is a responsibility which is to be utilized in public interest, and cannot be used for extraneous and political considerations. This power is required to be utilized with utmost good faith to serve the larger public interest. Recently, this Court in State of Kerala Vs. K. Ajith, (2021) SCC Online SC 510, held as under:

    “The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:

    (i) Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution;

    (ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;

    (iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;

    (iv) While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons;

    (v) In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:

    (a) The function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;

    (b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;

    (c) The application does

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