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
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 K. Ajith, (2021) SCC Online SC 510, and directed that no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without the leave of the High Court.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Final Decision: The Court directed that no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without the leave of the High Court and ordered the officers presiding over Special Courts or CBI Courts involving prosecution of MPs or MLAs to continue in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:
(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:
(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
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 t....
The main legal point established in the judgment is the need to ensure that the power under Section 321, Cr.P.C. is utilized in public interest and not for extraneous or political considerations. The....
(1) Withdrawal from prosecution – Public Prosecutor who has duty to assist Court with a fairly considered view on the case, in his application and in interest of justice should disclose all reasons t....
Public Prosecutor must provide reasons for withdrawing prosecution, ensuring it serves public interest and justice, particularly in cases with significant criminal histories.
The duty of the Public Prosecutor to exercise discretion with utmost care and circumspection, and not to act under pressure from higher authorities.
Criminal Law - Seeking permission to withdraw from prosecution - Legality of impugned order and justifying request for withdrawal - When the prosecution is allowed to be withdrawn there is always an ....
Points Of Law : Withdrawal from prosecution at the instance of the Public Prosecutor or Assistant Public Prosecutor - Indisputably, consent of the Court is necessary
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