The Supreme Court has been informed that 12 special courts set up to try lawmakers exclusively have not been constituted on a uniform pattern, and their number needs to be raised to 19 for trying cases at the sessions level.
It has also been suggested to the apex court that another 51 such courts are required for magisterial trial cases.
The suggestion has been made by senior advocate Vijay Hansaria, appointed as amicus curiae for assisting the top court and preparing a report on the measures needed to effectively deal with the criminal cases against MPs and MLAs.
"Recommendation has been made for constitution of one special court for sessions cases and one for magisterial cases in each State/ UT, except where pendency is less than 10 in the State/ UT. Wherever such cases are more than 10, recommendation is based on minimum of one court at both levels for 65 pending trial cases," as per the submission, filed through advocate Sneha Kalita.
Hansaria, who has been assisted by Kalita, has also suggested that all the high courts may be directed to assign criminal cases pending against MPs and MLAs to the special courts depending on the place of occurrence of the offence, residence of the witnesses and other such considerations.
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"Where the High Court feels that transfer of cases to special court will result in delay instead of expediting the same, particularly if there are large number of witnesses from far away places, the High Court may designate one Sessions Court for sessions trial cases and one Magistrate Court for magisterial trial cases in the respective districts exclusively for trial of cases for MPs and MLAs," he said.
Some of the states, where special courts have been constituted, appear to have clubbed both sessions trial and magistrate trial cases in one court which is not permissible in law, he added.
"For example in Bihar, one Special Court for sessions has been constituted, however, 233 cases triable by magistrate have been transferred to the said court. It may, therefore, be clarified that special court of sessions will try only those cases triable by sessions and special court for magistrate will try magisterial trial cases," Hansaria said.
The amicus further said that special courts were constituted to exclusively deal with all cases including complaint cases against MPs, MLAs including the former ones, irrespective of the fact as to whether the same was committed when the concerned lawmaker was holding the said office.
"The special courts, thus constituted will try all cases against MPs and MLAs except where cases being tried by some other Special Court constituted under a statute, such as Delhi Special Police Establishment Act, 1946, Prevention of Money Laundering Act, 2002, special court (Trial of Offences Relating to Transactions in Securities) Act, 1992, or any such similar statute.
"Cases would be transferred to the Special Courts only after the charge has been framed by the respective courts; till then the respective courts would have jurisdiction to deal with these cases," he said.
The apex court on October 10 had granted two more weeks to 20 states and union territories (UTs) and their respective high courts to furnish complete updated information about the status of pending and fresh criminal cases against the lawmakers.
Out of 36 states and UTs, only 16 have so far filed their replies giving information like the status of 1,581 criminal cases which were pending in 2014 against MPs and MLAs.
"Presently 12 special courts have been constituted in 11 different States/ UTs having territorial jurisdiction over cases pending in the entire State/ UT. As submitted herein above the courts have not been constituted in uniform pattern. It is thus submitted that 19 special courts for sessions cases and 51 special courts for magisterial trial cases may be constituted as per details," the amicus said.
The top court is dealing with a petition filed by BJP leader and lawyer Ashwini Upadhyay seeking inflicting of life time ban on convicted politicians.
As per the government's affidavit, the total number of cases transferred, disposed of and pending in these special courts are 1,233, 136 and 1,097 respectively.
The apex court in its November last year's order had also sought details as to whether any further criminal cases have been lodged against any present or former MPs and MLAs between 2014 and 2017, along with their details.
The Department of Justice, in its latest affidavit, has said that one special court each has been set up in states of Andhra Pradesh, Bihar, Kerala, Karnataka, Maharashtra, Madhya Pradesh, Telengana, Tamil Nadu, Uttar Pradesh and West Bengal whereas two such courts have been set up in National Capital Territory of Delhi.
The affidavit has further said that information from the remaining states and high courts has not yet been received.
Out of the 12 special courts, six have been set up at the sessions court level, five at the magistrate level, while the class of the court in Tamil Nadu has not been indicated, it said.
It said that states where the criminal cases against MPs and MLAs were less than 65, regular courts would try these matters on a fast-track mode.
With regard to the setting up of courts in addition to the 12 notified, the department has said the high courts of Karnataka, Madhya Pradesh, Patna, Calcutta and Kerala have negated any such requirement, while the Bombay High Court has expressed the requirement for additional courts without specifying any particular number.
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