Nothing wrong in withdrawing malicious prosecution, but get HC's nod first: SC

Acting as amicus curiae, senior advocate Vijay Hansaria referred to the Uttar Pradesh government's decision to withdraw 77 cases related to the 2013 Muzaffarnagar riots

The Supreme Court on Wednesday said that there is nothing wrong in withdrawing cases of malicious prosecution against MPs and MLAs, but the High Court must examine such matters.

It said state governments should take approval of the respective High Court before withdrawing criminal cases filed against sitting or former lawmakers.

"We are not against the withdrawal of cases if there is a malicious prosecution. But this needs to be examined by the High Court. If the High Court agrees then the cases can be withdrawn," a bench presided over by Chief Justice N V Ramana said.

On August 10, hearing the PIL by advocate Ashwini Kumar Upadhyay, the top court ordered no criminal case against sitting and former MPs and MLAs can be withdrawn without an approval of the High Court concerned.

Acting as amicus curiae, senior advocate Vijay Hansaria, along with advocate Sneha Kalita referred to the Uttar Pradesh government's decision to withdraw 77 cases related to the 2013 Muzaffarnagar riots. He said each case must be examined by the High Court in revisional jurisdiction under Section 401 of CrPC, in light of the law laid down by the top court in the case of State of Kerala vs K Ajith (2021).

A report filed by Hansaria in the 2016 petition on fast-tracking of criminal trials against sitting and former MPs/MLAs, stated that 510 cases relating to the 2013 riots were registered in five districts of Meerut zone against 6,869 accused. Out of these, the charge sheet was filed in 175 cases, final reports were submitted in 165 cases, and 170 cases were expunged.

"Thereafter 77 cases were withdrawn by the state government under Section 321 of CrPC. The government orders do not give any reasons for withdrawal of the case. It merely states that the administration, after full consideration, has taken a decision to withdraw the particular case," the report said.

As Hansaria submitted that each case should be dealt with a reasoned order, the bench, also comprising Justices D Y Chandrachud and Surya Kant, said it cannot examine all the cases, and let them go to the High Court.

The counsel then submitted that the High Court may be directed to issue administrative instructions to expedite the trial of pending cases on a day-to-day basis in terms of Section 309 CrPC.

During the hearing, the Chief Justice highlighted the problems faced by the judiciary and probe agencies like the CBI and the ED.

Just like us, probe agencies are suffering from a lack of manpower, infrastructure, he said.

"We don't want to say anything about these agencies because we don't want to demoralise them, they are overburdened. Same with judges," the bench said.