Criminal cases pending against MPs/MLAs (sitting and former legislators)
In the matter of ASHWINI KUMAR UPADHYAY v. UNION OF INDIA,
Bench headed by Justices NV Ramana, Surya Kant and Aniruddha Bose was considering the writ petition (ASHWINI KUMAR UPADHYAY v. UNION OF INDIA) related to the criminal cases pending against both sitting and former legislators (MPs/MLAs).
Following submissions were made in this behalf by the Amicus curiae MR. VIJAY HANSARIA, (SR.ADV.):
Issues and submissions: (A) Video conferencing facilities are not adequate to facilitate recording of evidence of witnesses. For disposal of these cases, robust video conferencing facilities and upgradation of infrastructure is necessary. (B) Application for the protection of the witnesses under the scheme is waived. (C) For the matters pending for more than 25 years, it is imperative to appoint Nodal Prosecution Officers who will be responsible to ensure that arrest warrants are being executed, accused are being produced regularly, summons are being served, and so on. (D) Tenure of judicial officers dealing with the aforesaid cases is at least 2 years in order to ensure continuity, to speedy disposal. (E) Judicial officers should follow effective case management strategies and should not grant unnecessary adjournments which might lead to delay.
Learned senior counsel for the Petitioner, Mr. Gopal Sankaranarayanan was sought to provide by this court some needful explanation in this matter and other issues relate to criminal cases pending against both sitting and former legislators (MPs/MLAs).
Court after hearing learned counsel and the learned amicus considered it appropriate to pass the following directions:
1. The Witness Protection Scheme, 2018, approved by this Court in the case of Mahender Chawla v. Union of India, (2019) 14 SCC 615 should be strictly enforced by the Union and States and Union Territories. Keeping in mind the vulnerability of the witnesses in such cases, the Trial Court may consider granting protection under the said Scheme to witnesses without their making any specific application in this regard.
2. We have already passed directions with respect to vacation of stay that may have been granted by the High Courts vide order dated 16.09.2020. In that order, we had directed the Chief Justices of the High Courts to list the matters relating to the aforementioned cases before an appropriate bench, and to decide on any issue relating to stay by keeping in view the principles laid down by this Court in Asian Resurfacing of Road Agency Private Limited v. CBI, (2018) 16 SCC 299. Recently the law as stated in the above case has been reiterated by a three-Judge Bench of this Court vide order dated 15.10.2020 in Miscellaneous Application No. 1577 of 2020 in Criminal Appeal Nos. 1375-1376 of 2013 [Asian Resurfacing (supra)], wherein the Court has held as follows: “We must remind the Magistrates all over the country that in our pyramidical structure under the Constitution of India, the Supreme Court is at the Apex, and the High Courts, though not subordinate administratively, are certainly subordinate judicially. This kind of orders fly in the face of para 35 of our judgment. We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, as per our judgment, within the next six months, the trial Court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.” (emphasis supplied) The above pronouncements must be followed with full rigor by all the Courts.
3. Keeping in mind the public interest involved in these matters, and in order to prevent undue delay, we direct that no unnecessary adjournments be granted in these matters.
4. At the cost of repetition, it is clarified that the directions in the present writ proceedings are applicable to both sitting as well as former legislators (MPs and MLAs).
Power to transfer the petition under Section 21A of the Hindu Marriage Act
In the matter of SHRUTI KAUSHAL BISHT v. KAUSHAL R. BISHT
Bench headed by Justice V. RAMASUBRAMANIAN held that Section 21-A of the Hindu Marriage Act does not divest the Supereme Court of the power available under Section 25(1) of the Code of Civil Procedure Code, 1908.
(SHRUTI KAUSHAL BISHT v. KAUSHAL R. BISHT)
Sectopm 21A reads and explained by the Court:
Power to transfer petitions in certain cases:
(1) Where (a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13; and
(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State, the petitions shall be dealt with as specified in sub- section (2).
(2) In a case where sub-section (1) applies,
(a) if the petitions are presented to the same district court, both the petitions shall be tried and heard together by that district court;
(b) if the petitions are presented to different district courts, the petition presented later shall be transferred to the district court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.
(3) In a case where clause (b) of sub-section (2) applies, the court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code.
It was stated that- Sub-Section (1) of Section 21A, deals with a situation where one party to a marriage has filed a petition either for judicial separation under Section 10 or for a decree of divorce under Section 13, before a District Court having jurisdiction and thereafter the other party to the marriage, files a petition either under Section 10 or under Section 13, before the same District Court or in a different District Court in the same State on in a different State.
Such types of cases, covered by Subsection (1), are required to be dealth with, in the manner specified in Sub-section (2). Subsection (2) of Section 21A, has no independent existence de hors Sub-section (1). A combined reading of Subsections (1) and (2) would show that the procedure prescribed by Subsection (2), applies only to situations covered by Subsection (1).
It was further held that a power to transfer the petition under Section 21A of the Hindu Marriage Act can be invoked only when the subsequent petition is either a petition seeking judicial separation (under Section 10) or a petition seeking divorce (under Section 13).
Section 21- A of the Hindu Marriage Act does not divest the Supreme Court of the power available under Section 25(1) of the Code of Civil Procedure Code, 1908.
Earlier the Supreme Court in Guda Vijalakshmi v. Guda Ramchandra Sekhara Sastry, rejected the contention that the substantive provision contained in Section 25 CPC is excluded by reason of Section 21 of the Hindu Marriage Act, 1955. The words “subject to the other provisions contained in this Act” appearing in Section 21 of the Hindu Marriage Act, 1955 were construed by this Court to indicate only those provisions which are inconsistent with any of the provisions of the Act. The only test prescribed in Section 25(1) of the Code of Civil Procedure for the exercise of the power of transfer by this Court is “expediency for the ends of justice”.