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ITEM NO.2 COURT NO.1 SECTION PIL-W

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

WRIT PETITION (CIVIL) NO(S). 699/2016

ASHWINI KUMAR UPADHYAY PETITIONER(S)

VERSUS

UNION OF INDIA & ANR. RESPONDENT(S)

[I.A. NO.107427/2018 – APPROPRIATE ORDERS/DIRECTIONS
I.A. NO.81287/2018 – CLARIFICATION/DIRECTION
I.A. NO.136819/2017 – CLARIFICATION/DIRECTION
I.A. NO.54637/2017 – CLARIFICATION/DIRECTION
I.A. NO.54552/2017 – DIRECTIONS
I.A. NO.107431/2018 – EXEMPTION FROM FILING O.T.
I.A. NO.61324/2017 – I/A FOR PERMISSION TO AMEND THE PRAYER ON
BEHALF OF PETITIONER
I.A. NO.81286/2018 – INTERVENTION APPLICATION
I.A. NO.58124/2017 – INTERVENTION/IMPLEADMENT
I.A. NO.57812/2017 – INVERVENTION/IMPLEADMENT
I.A. NO.127368/2018 – INTERVENTION APPLICATION
I.A. NO.127023/2018 – INTERVENTION/IMPLEADMENT
I.A. NO.130542 & 130543/2018 – STAY AND EXEMPTION FROM FILING OT
I.A.NO.146933/20180 – EXEMPTION FROM FILING OT]

Date : 04-12-2018 This matter was called on for hearing today.

CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE K.M. JOSEPH

Mr. Vijay Hansaria, Sr. Adv.(A/C)

Ms. Sneha Kalita, AOR
Mr. Avnish Pandey, Adv.

For parties: Mr. Dinesh Dwivedi, Sr. Adv.

Mr. Ashwini Kumar Upadhyay -in-person
Mr. Vijay Kumar Pandita, Adv.
Mr. Krishna Kant Shukla, Adv.
Ms. Asha Upadhyay, Adv.
Mr. Krishnam Mishra, Adv.
Signature Not Verified
Mr. Yasharth Kant, Adv.
Digitally signed by
VINOD LAKHINA
Date: 2018.12.04
Mr. Nishant Singh, Adv.
Mr. R. D. Upadhyay, AOR
16:09:07 IST
Reason:
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Mr. Krishnan Venugopal, Sr. Adv.

Mr. Udai Rathore, Adv.

UOI Mr. A.N.S. Nadkarni, ASG

Ms. V. Mohana, Sr. Adv.
Mr. Rajiv Nanda, Adv.
Mr. Vijay Prakash, Adv.
Mr. Arvind Kr. Sharma, AOR

UOI Mr. A.N.S. Nadkarni, ASG

Mr. R. R. Rajesh, Adv.
For Mrs. Anil Katiyar, AOR

Ms. V. Mohana, Sr. Adv.

Ms. Sunita Sharma, Adv.
Mr. Sushma Verma, Adv.
Mr. R. R. Rajesh, Adv.
Mrs. Anil Katiyar, AOR
Mr. Raj Bahadur Yadav, Adv.

Mr. Mukesh Kumar Maroria, AOR

ECI Mr. Mohit D. Ram, AOR

Ms. Monisha Handa, Adv.

Mr. Balaji Srinivasan, AOR

Ms. Pallavi Sengupta, Adv.
Ms. Garima Jain, Adv.
Mr. Siddhant Kohli, Adv.

Mr. Pranav Sachdeva, AOR

Delhi HC Mr. Raju Ramachandran, Sr. Adv.

Mr. Annam D.N. Rao, Adv.
Mr. Annam Venkatesh, Adv.
Mr. Sudipto Sircar, Adv.
Mr. Rahul Mishra, Adv.

State of MP Mr. Rajesh Srivastava, Adv.

State of Kerala Mr. G. Prakash, Adv.

Mrs. Priyanka Prakash, Adv.
Mr. Jishnu M.L., Adv.
Mrs. Beena Prakash, Adv.
 3

Kerala HC Mr. T.G.N. Nair, AOR

State of Odisha Mr. Sibo Shankar Mishra, AOR

Mr. Niranjan Sahu, Adv.

State/HC of Sikkim Mr. A. Mariarputham, Adv. Gen. Sikkim

Ms. Aruna Mathur, Adv.
Mr. Avneesh Arputham, Adv.
Ms. Anuradha Arputham, Adv.
Ms. Geetanjali, Adv.
For M/s Aruputham Aruna & Co., AOR

HC of Allahabad Mr. Sunny Choudhary, AOR

State of Rajasthan Mr. Amit Sharma, Adv.

Mr. Ankit Raj, Adv.
Ms. Nidhi Jaswal, Adv.
Ms. Indira Bhakar, Adv.
Ms. Ruchi Kohli, AOR

Rajasthan HC Ms. Purnima Krishna, Adv.

Mr. Siddharth Garg, Adv.
Mr. Abhinav Mukherji, AOR

HP HC Ms. Radhika Gautam, AOR

Uttarakhand HC Ms. Radhika Gautam, AOR

Patna HC Mr. Pravin H. Parekh, Sr. Adv.

Mr. Kshtrashal Raj, Adv.
Mr. Vishal Prasad, Adv.
Ms. Tanya Chaudhary, Adv.
Ms. Pratyusha Priyadarshini, Adv.
Ms. Aishwarya Dash, Adv.
for M/s Parekh & Co., AOR

HC of J&K Mr. Bharat Sangal, AOR

Ms. Babita Kushwaha, Adv.

HC of MP Mr. Arjun Garg, AOR

Mr. Aakash Nandolia, Adv.

HC of Jharkhand Mr. Ambhoj Kumar Sinha, AOR

State of Arun.P. Mr. Anil Shrivastava, AOR

Mr. Rituraj Biswas, Adv.
Mr. Satyendra Kumar Srivastav, Adv.
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State of Jharkhand Mr. Tapesh K. Singh, AOR

Mr. Aditya Pratap Singh, Adv.

State of Haryana Mr. Samar Vijay Singh, Adv.

Mr. Navin Gupta, Adv.
Mr. Sanjay Kumar Visen, AOR

State of Gujarat Ms. Hemantika Wahi, AOR

Ms. Jesal Wahi, Adv.
Ms. Vishakha, Adv.
Ms. Parul Luthra, Adv.

Govt. of Puducherry Mr. V.G. Pragasam, AOR

Mr. S. Prabu Ramasubramanian, Adv.
Mr. S. Manuraj, Adv.

State of Manipur Mr. Leishangthem Roshmani Kh., AOR

HC of Calcutta Mr. Kunal Chatterjee, AOR

Ms. Maitrayee Banerjee, Adv.
Mr. Saurav Gupta, Adv.

State of Tripura Mr. Shuvodeep Roy, AOR

Mr. Rituraj Biswas, Adv.

HC Tripura Mr. Naresh K. Sharma, AOR

UT of A & N admn. Mr. Mirnal Kanthi Mondal, Adv.

Mr. K.V. Jagdishvaran, Adv.
Mrs. G. Indira, AOR

State of Nagaland Ms. K. Enatoli Sema, AOR

Mr. Amit Kumar Singh, Adv.

State of Bihar Mr. M. Shoeb Alam, AOR

Mr. Ujjwal Singh, Adv.
Mr. Mojahid Karim Khan, Adv.

State of J & K Mr. M. Shoeb Alam, AOR

Mr. Ujjwal Singh, Adv.
Mr. Mojahid Karim Khan, Adv.

State of Punjab Mr. Karan Bharihoke, AOR.

Mr. Kaushal Narayan Mishra, Adv.
Ms. Navkiran Bolay, Adv.
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State of Goa Mr. A.N.S. Nadkarni, ASG

Mr. Pratap Venugopal, Adv.
Ms. Surekha Raman, Adv.
Mr. Santosh Rebello, Adv.
Mr. Debarshi Bhuyan, Adv.
Ms. Remya Raj, Adv.
For M/s K.J. John & Co., Adv.

State of U.P. Mr. Sanjay Kumar Tyagi, AOR

Mr. Yogendra Pal Singh, Adv.
Mr. Sandeep Singh, Adv.

UT Chandigarh Admn. Mr. Manoj Gorkela, Adv.

Mr. Prakash Sharma, Adv.
Ms. Prakriti Raj, Adv.
Mr. Sarbendra Kumar, Adv.
For Gorkela Law Office, AOR

State of Mizoram Mr. Pragyan Pradip Sharma, Adv.

Mr. Mudit Makhijani, Adv.
Mr. Shikhar Garg, Adv.
Mr. P.V. Yogeswaran, Adv.

State of Uttarakhand Ms. Rachana Srivastava, AOR

State of Karnataka Mr. V.N. Raghupathy, Adv.

Mr. Lagnesh Mishra, Adv.
Mr. Parikshit P. Angadi, Adv.

State of A.P. Mr. Guntur Prabhakar, Adv.

Ms. Prerna Singh, Adv.

Gauhati HC Mr. Vijay Hansaria, Sr. Adv.(A/C)

Ms. Sneha Kalita, AOR
Mr. Avnish Pandey, Adv.

State of Meghalaya Mr. Ranjan Mukherjee, Adv.

Mr. Daniel Stone Lyngdoh, Adv.
Mr. K.V. Kharlingdoh, Adv.

State of Assam Mr. Shuvodeep Roy, Adv.

Mr. Somnath Banerjee, Adv.

State of H.P. Mr. Abhinav Mukerji, AAG, HP

Mrs. Bihu Sharma, Adv.
Ms. Pratishtha Vij, Adv.
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State of Chhattisgarh Mr. Jugal Kishore gilda, Adv.Gen.

Mr. A.P. Mayee, Adv.
Mr. Chirag Jain, Adv.

HC Chhattisgarh Mr. Apoorv Kurup, AOR

Mr. G. Kaushal, Adv.

HC Gujarat Mr. A.P. Mayee, Adv.

Mr. Chirag Jain, Adv.

HC of Bombay Mr. A.P. Mayee, Adv.

Mr. Chirag Jain, Adv.

Delhi HC Mr. Raju Ramachandran, Sr. Adv.

Mr. A.D.N. Rao, AOR
Mr. Annam Venkatesh, Adv.
Mr. Sudipto Sircar, Adv.
Mr. Rahul Mishra, Adv.
Ms. Hamsini Shanker, Adv.

State of W.B. Mr. Suhaan Mukerji, Adv.

Ms. Astha Sharma, Adv.
Mr. Amit Verma, Adv.
Mr. Abhishek Manchanda, Adv.
Ms. Kajal Dalal, Adv.
Ms. Dimple Nagpal, Adv.
For PLR Chambers, AOR

State of T.N. Mr. M. Yogesh Kanna, AOR

Mr. Ashwani Kr. Dubey, Adv.

HC Uttarakhand Mr. Mukesh K. Giri, AOR

GNCTD Mr. Chirag M. Shroff, AOR

Ms. Neha Sangwan, Adv.

Ms. Deepa M. Kulkarni, Adv.

Mr. Nishant R. katneshwarkar, AOR
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UPON hearing the counsel the Court made the following

O R D E R

We have heard Shri Vijay Hansaria, learned Senior

Counsel who has appeared in the case as the Amicus Curiae.

We have also perused the second report dated 3rd December,

2018 submitted/filed by Shri Vijay Hansaria, learned Amicus

Curiae.

The second report of the learned Amicus Curiae dated

3rd December, 2018 compiled on the basis of information

furnished by the High Courts indicate that there are

presently 4122 number of cases pending against Members of

Parliament (M.Ps.)/Members of Legislative Assembly (M.L.As)

including former M.Ps./M.L.As. Out of this (i.e. 4122

number of cases) 2324 number of cases are against sitting

legislators (both M.Ps./M.L.As.) and 1675 number of cases

are against former legislators (both M.Ps./M.L.As.)

The report of the learned Amicus Curiae shows that

in 1991 cases out of 4122 cases charges have not yet been

framed. State-wise data with regard to cases where charges

have not yet been framed has also been furnished in the

said report and are available at Annexure 2 to the said

report. The learned Amicus Curiae submitted a chart in the

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course of the hearing showing State-wise number of pending

cases involving life sentence against the sitting as well

as former legislators. The said chart shows that 430 cases

involving life sentence are pending against sitting as well

as former legislators. What is the stage of the trial of

these cases, however, has not been indicated.

To ensure effective trial of these cases the learned

Amicus Curiae has suggested that instead of concentrating

the cases in the 12 (Twelve) Special Courts that have been

constituted pursuant to the earlier order(s) of this Court

there should be one designated Sessions Court and one

designated Magisterial Court in each District to try cases

against sitting and former legislators on priority basis.

The learned Amicus Curiae has also submitted that

concentration of all the cases against former and sitting

legislators in 12 Special Courts set up pursuant to the

order(s) of this Court would result in delay of trial on

account of witnesses and accused being required to come

from far away places.

The learned Amicus Curiae has suggested that a

special procedure should be adopted by the designated

Courts which should fix a calendar for each case to be

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taken up on day-to-day basis giving priority to the trial

of cases in the following order:

“i. Offences punishable with imprisonment

for life/death against sitting Mps and
MLAs.

ii. Serious offences punishable with

imprisonment of 5 years or more against
sitting MPs and MLAs.

iii. Other offences against sitting MPs and

MLAs

iv. Offences punishable with imprisonment

for life/death against former MPs and MLAs.

v. Serious offences punishable with

imprisonment of 5 years or more against
former MPs and MLAs.

vi. Other offences against former MPs and

MLAs.”

Submission of monthly status reports to the

concerned High Court; directions/requests to the concerned

High Court/High Courts to expedite the cases pending before

it/them where stay orders have been passed (264 number in

all) and such are the matters have also been mentioned in

the report of the learned Amicus Curiae.

We have considered the matter.

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We appreciate the services of the learned Amicus

Curiae in formulating his suggestions for effective

disposal of criminal cases against sitting and former

legislators, a task which this court had undertaken in the

present proceedings.

Having considered the matter we are of the view that

the suggestions of the learned Amicus Curiae should be

tried out with certain modifications and in a limited

manner which is indicated below:

1. Instead of designating one Sessions Court and one

Magisterial Court in each District we request each High

Court to assign/allocate criminal cases involving former

and sitting legislators to as many Sessions Courts and

Magisterial Courts as the each High Court may consider

proper, fit and expedient. This, according to us, would be

a more effective step instead of concentrating all the

cases involving former and sitting legislators in a Special

Court(s) in the district.

2. The procedural steps indicated by the learned Amicus

Curiae, narrated above, will be followed by each of the

designated Court to whom work would be allocated in terms

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of the directions above except that offences punishable

with imprisonment for life/death against sitting

M.Ps./M.L.As. as well as former M.Ps./M.L.As. would be

taken up on first priority followed by sequential order

indicated above without creating any distinction between

cases involving sitting legislators and former legislators.

3. At this stage, we are of the view that the above

directions should be made applicable to cases involving

former and sitting legislators in the States of Bihar and

Kerala.

The National Capital Territory of Delhi where the

position is somewhat different and the difficulties of

distance and territories do not come in the way the trial

of cases by the Special Courts (both Sessions Court and

Magisterial Court) will continue.

4. So far as the cases involving States of Kerala and

Bihar are concerned, such of the case records which have

been transmitted to the Special Courts in the two States

will be re-transmitted to the jurisdictional courts

wherefrom the records have been sent for being dealt with

in the manner indicated above. This will be done forthwith.

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5. The registry of the High Courts of Kerala (State of

Kerala) and Patna (State of Bihar) will initiate necessary

action in this matter without any delay.

6. Rest of the Special Courts already set up shall

continue to work and try cases assigned to it until further

orders are passed in this regard by this Court.

7. The designated Courts in the districts in the

aforesaid two States of Kerala and Bihar will submit

monthly report to the High Court with regard to the cases

where charge-sheets have not yet been filed; cases where

charges have not yet been framed giving reasons therefor;

and the progress of the trial where the cases are ready.

The High Courts, in turn, will forward the said reports to

the registry of this Court with a copy to Shri Vijay

Hansaria, learned Amicus Curiae who is requested to go

through the said reports and assist the Court by placing

the information conveyed before this Court in an

appropriate manner on the next date/dates of hearing.

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The action taken in terms of the present order by

the High Courts of kerala and Patna be laid before this

Court on or before 14th December, 2018.

A copy of the present order be furnished to the

learned Amicus Curiae in the course of the day who is

requested to transmit the same to the Registrars General of

the High Court of Kerala and Patna.

List the matter on 14th December, 2018.

[VINOD LAKHINA] [ANAND PRAKASH]

AR-cum-PS BRANCH OFFICER