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Ashwini Kumar Upadhyay Vs Union Of India, Tazheen Fatima Vs Union Of India & Ors: No Illegality In Special MP/MLA Courts At Sessions Level Handling Cases Triable By Magistrates

Niyati Trivedi ,
  27 November 2021       Share Bookmark

Court :
The Supreme Court of India
Brief :

Citation :

Date of judgement:
10 August, 2021

Hon'ble Chief Justice
Hon'ble Justice Vineet Saran

Appellant – Ashwini Kumar Upadhyay
Respondent – Union of India


  • Tushar Mehta, learned Solicitor General and counsel for the parties, as well as Vijay Hansaria, learned amicus curiae. The Court gave them two weeks to file their response/affidavit in response to the directions it has given to them by the court.
  • To begin, the court noted that the learned Amicus has filed his 13th Report, dated August 9, 2021. The Report addresses a number of issues, including those listed below in broad strokes:

(I) Abuse 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 Courts (M.P./M.L.A.) to try cases against legislators elected from other States

(IV) Jurisdiction of Special Courts in cases triable by Magistrates

(V) Trial of cases where an M.P./M.L. A We are inclined to address the first two issues in this order because they are of immediate concern and can be quickly resolved.

It may not be out of context to state that issues 3 and 4 raise substantive legal issues that may necessitate some elaborate arguments, which will be addressed at a later date.

  • Misuse of Prosecutor’s Power u/s 321 of Cr.P.C.

The learned amicus drew the court’s attention to several instances across the country in which various State Governments have used the power vested in Section 321, Cr.P.C. to withdraw numerous criminal cases pending against M.P./M.L.A.

It is worth noting that the power under Section 321, Cr.P.C. is a responsibility that must be used in the public interest and cannot be used for extraneous or political reasons. This authority must be exercised in good faith in order to serve the larger public interest.

Judgement Analysis

  • This Court recently ruled in State of Kerala vs. K. Ajith, (2021) SCC Online SC 510, as follows:

"The following principles can now be formulated as a result of this Court's decisions on the withdrawal of a prosecution under Section 321 of the CrPC:

(i) Section 321 delegates the decision to withdraw from a prosecution to the public prosecutor, but the court's consent is required;

(ii) The public prosecutor may withdraw from a prosecution not only due to a lack of evidence, but also to further the broad ends of public justice; and

(iii) The public prosecutor must formulate an independent opinion before seeking the court's consent to withdraw from the prosecution.

(iv) While the mere fact that the initiative came from the government does not invalidate a withdrawal application, the court must make an effort to elicit the reasons for withdrawal so that the public prosecutor is satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons.

(v) The court performs a judicial function in deciding whether to grant consent to a withdrawal, but it has been described as supervisory in nature. Before deciding whether to grant consent, the court must be satisfied of the following:

(a) The function of the public prosecutor has not been improperly exercised, nor is it an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;

(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the legal process;

(c) The application is free of such irregularities or illegalities that would cause manifest injustice if consent were granted;

(d) The grant of consent serves the administration of justice; and

(e) the permission was not sought for a reason unrelated to the vindication of the law, which the public prosecutor is obligated to uphold.

(vi) In determining whether the withdrawal of the prosecution serves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence, as well as its impact on public life, particularly where public funds and the discharge of a public trust are involved; and

(vii) In a case where both the trial judge and the revisional court concurred in granting or refusing consent, the Court would exercise caution before overturning concurrent findings under Article 136 of the Constitution.

  • The Court may, in accordance with the well-established principles associated with the exercise of this jurisdiction, intervene in a case where the trial judge or the High Court failed to apply the correct principles in deciding whether to grant or withhold consent.
  • " In light of the law established by this Court, we deem it appropriate to direct that no prosecution against a sitting or former M.P./M.L.A. be withdrawn without the permission of the High Court in the respective Suo-motu writ petitions filed in response to our order dated 16.09.2020.
  • The High Courts are asked to review all withdrawals, whether pending or disposed of, since September 16, 2020, in light of the guidelines established by this Court.


Mr. Hansaria, who is the Amicus Curiae in the above case involving the establishment of Special Courts for the trial of MPs and MLAs, made the submissions in his 15th Report, which was submitted on November 23rd, through Advocate Sneha Kalita. The Amicus has requested that the Allahabad High Court and the State of Uttar Pradesh, in collaboration with other High Courts and State Governments, be directed to establish Special Courts at both the Sessions and Magistrate levels in all Districts. The same may be done as the High Court deems appropriate in light of the number of cases and geographical location.

In the following case, the legal issue before the Court relates to the jurisdiction of the special courts, which has been challenged, stating that matters triable by Magistrate cannot be tried by a special judge Court presided over by a District Judge Cadre officer because it would deprive them of their right to appeal. The petitioners have challenged the Allahabad High Court's notification dated 16.08.2019, which transfers cases triable by Magistrates to a Special Court presided over by an officer of the rank of Additional Sessions Judge.

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