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 judgment also emphasizes the importance of continuity of tenure for judicial officers, especially in the context of the pandemic.

ORDER

1. Heard.

2. Mr. Aditya Sondhi, learned Amicus Curiae has drawn the attention of the Court towards the order of the Apex Court dated 10.08.2021 in W.P.(Civil) No.699/2016 (ASHWINI KUMAR UPADHYAY vs UNION OF INDIA AND ANOTHER), whereby the Apex Court has made the following observations:

"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).

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.

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

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.

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.

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 prose