Special courts for MP/MLAs don't take away right of appeal, SC told

The Supreme Court has been told that trial of both sessions and magistrate cases against MPs and MLAs before a special court cannot be termed illegal as the right to appeal would lie to the High Court.

"Constitution of special courts both at the sessions and the magistrate level is desirable. However, no illegality can be attached to the constitution of special courts at sessions level for trial of both sessions cases and magisterial trial cases, as the accused persons will get a fair trial before the said court," a report filed by amicus curiae senior advocate Vijay Hansaria said.

It also contended the right of first appeal for the accused is not taken away, and instead of session court, the appeal would lie to the High Court. "The right of revision is not an inherent right but only a supervisory jurisdiction," it said.

In order to ensure speedy disposal of criminal cases against the elected representatives to Parliament and the State legislatures, including former MPs/ MLAs, the Union government sanctioned special courts following the top court's suggestion in 2017 in a PIL filed by BJP leader and advocate Ashwini Kumar Upadhyay.

The 15th report prepared with the assistance of advocate Sneha Kalita also asked the top court to issue directions to all the High Courts and the state governments to constitute special courts both at sessions level and at magistrate level in each district or group of districts as may be considered appropriate, having regard to the number of cases and geographical location.

The amicus curiae also asked the top court to clarify that the directions to constitute special court both at sessions and magistrate levels will not affect the orders passed by the special courts at the sessions level in respect of cases triable by magistrate under the Criminal Procedure Code. The magisterial trial cases already concluded or pending trial will not be open to challenge only on the ground that the final judgement or the interim orders have been passed by the special court headed by an officer of the rank of sessions judge.

The special court MP/MLA constituted under direction of this court has conducted trial in a large number of cases and has also disposed of a number of cases triable under CrPC, both by the sessions as well by the magistrate courts. The direction to constitute the special court has been issued by this Hon’ble Court in exercise of power under Article 142 of the Constitution and no fault can be found in trial of such cases, particularly when no objection has been raised by any of the accused persons except in a few writ petitions, the report pointed out.

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