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Tuesday, February 25, 2014

Lokayukt Act -Vs- Vidhan Sabha - Registration of FIR by Special Police Establishment of Lokayukt against Secretary , Deputy Secretary , Engineers of Vidhan Sabha, Contractors etc., over the construction works in the premises of Vidhan Sabha ,on complaint - Speaker issued breach of privileged letter against the Lokayukt Members etc., - it amounts to violation of Art.14 and 21 of Indian constitution - not maintainable and is liable to be quashed - Apex court set aside the letters of Speaker of Vidhan Sabha = Justice Ripusudan Dayal (Retd.) & Ors. .... Petitioner (s) Versus State of M.P. & Ors. .... Respondent(s) = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41245

Lokayukt Act -Vs- Vidhan Sabha - Registration of FIR by Special Police Establishment of Lokayukt against Secretary , Deputy Secretary , Engineers of Vidhan Sabha, Contractors etc., over the construction works in the premises of Vidhan Sabha ,on complaint - Speaker issued breach of privileged letters against the Lokayukt Members etc., - it amounts to violation of Art.14 and 21 of Indian constitution - not maintainable and is liable to be quashed - Apex court set aside the letters of  Speaker of Vidhan Sabha  =

Writ under Art.32
challenging  the  validity  of
certain letters issued by Mr. Qazi  Aqlimuddin  –  Secretary,  Vidhan  Sabha
(Respondent No.4 herein) on various dates against  them  with  regard  to  a
case registered by the Special Police Establishment (SPE)  of  the  Lokayukt
Organisation, against the officials of the Vidhan Sabha Secretariat as  well
as against the concerned officials of the  Capital  Project  Administration-
the Contractor  Company  alleging  irregularity  in  the  construction  work
carried out in the premises of Vidhan Sabha.   
Soon  after  the
registration of the criminal case, the  petitioners  received  the  impugned
notices dated 15.10.2007 wherein allegations of  breach  of  privilege  were
made against the petitioners.  The  petitioners  understood  that  the  said
letters had been issued on the basis of some complaints by  the  Members  of
Legislative Assembly.  The petitioners received further notices  for  breach
of privilege on the basis of the complaint made by Shri Gajraj Singh, MLA.

Being aggrieved by the initiation of action  by  the  Hon’ble  Speaker
for breach of privilege, the petitioners have preferred this writ petition.


Maintainability of Writ

the proposed actions are not permissible involving infringement of  Articles  14
and 21 of the Constitution, this Court is well  within  its  power  to  pass
appropriate order in exercise of its jurisdiction under Articles 32 and  142
of the Constitution.  Further, if the petitioners are compelled to face  the
privilege proceedings before the Vidhan Sabha, it would cause  prejudice  to
them.  Further, if the petitioners  are  compelled  to  face  the  privilege
motion in spite of  the  fact  that  no  proceeding  was  initiated  against
Hon’ble Speaker or Members of the House but only relating  to  the  officers
in respect of contractual matters, if urgent intervention is not sought  for
by  exercising  extraordinary  jurisdiction,  undoubtedly,  it  would  cause
prejudice to the petitioners.

30)   Accordingly,  we  reject  the  preliminary  objection  raised  by  the
counsel for Respondent No.4 and hold that writ petition under Article 32  is
maintainable.


(i) Whether the Legislative Assembly or its Members enjoy any  privilege  in
respect  of  an  inquiry  or  an  investigation  into  a  criminal   offence
punishable under any law for the time being in force, even when  inquiry  or
investigation was initiated in performance of duty enjoined by  law  enacted
by the very Legislative  Assembly  of  which  the  breach  of  privilege  is
alleged?

(ii) Whether officials of the  Legislative  Assembly  also  enjoy  the  same
privileges which are available to Assembly and its Members?

(iii) Whether seeking mere information or calling the  officials  of  Vidhan
Sabha Secretariat for providing information during inquiry or  investigation
amounts to breach of privilege?
(iv) In  view  of  the  letter  dated  23.08.2007,  sent  by  the  Principal
Secretary  to  Respondent  Nos.  10  and  11,  i.e.,  Secretary  and  Deputy
Secretary, Vidhan Sabha respectively directing them  to  appear  before  the
Lokayukt (as per the order of the Speaker), whether Respondent Nos.  10  and
11 can have any grievance that information  was  sought  from  them  without
sanction and knowledge of the Speaker?

Conclusion 
We are  of  the  view  that  the  action  being  investigated  by  the
petitioners has nothing to do with the proceedings of the House and as  such
the said action cannot constitute any breach of privilege of  the  House  or
its members.

66)   It is made clear that privileges are available only  insofar  as  they
are necessary in order that House may freely  perform  its  functions.   For
the application of laws, particularly, the provisions of the  Lokayukt  Act,
and the  Prevention  of  Corruption  Act,  1988,  the  jurisdiction  of  the
Lokayukt or the Madhya Pradesh  Special  Police  Establishment  is  for  all
public servants (except the Speaker and the Deputy  Speaker  of  the  Madhya
Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no  privilege
is available to the officials and,  in  any  case,  they  cannot  claim  any
privilege more than an ordinary citizen to whom the provisions of  the  said
Acts apply.  Privileges do not extend to the activities  undertaken  outside
the House on which  the  legislative  provisions  would  apply  without  any
differentiation.

67)   In the present case, the action taken by  the  petitioners  is  within
the powers conferred under the above statutes  and,  therefore,  the  action
taken by the petitioners is legal.  Further, initiation of action for  which
the petitioners are legally  empowered,  cannot  constitute  breach  of  any
privilege.

68)   Under the provisions of Section 39(1)(iii) of  the  Code  of  Criminal
Procedure, 1973, every person who is aware of the commission of  an  offence
under  the  Prevention  of   Corruption  Act  is  duty  bound  to  give   an
information available with  him  to  the  police.   In  other  words,  every
citizen who has knowledge of the commission of a cognizable  offence  has  a
duty to lay  information  before  the  police  and  to  cooperate  with  the
investigating officer who is enjoined to collect the evidence.

69)   In the light of the above  discussion  and  conclusion,  the  impugned
letters/notices are quashed and the writ petition is allowed as prayed  for.
 No order as to costs.


       2014(Feb.Part) judis.nic.in/supremecourt/filename=41245           
P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH

        REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION


                   1 WRIT PETITION (CIVIL) NO. 613 OF 2007




Justice Ripusudan Dayal (Retd.) & Ors.       .... Petitioner (s)

            Versus

State of M.P. & Ors.                                    .... Respondent(s)

                                      2









                               J U D G M E N T


P.Sathasivam, CJI.

1)    The present writ petition, under Article 32  of  the  Constitution  of
India, has been  filed  by  the  petitioners  challenging  the  validity  of
certain letters issued by Mr. Qazi  Aqlimuddin  –  Secretary,  Vidhan  Sabha
(Respondent No.4 herein) on various dates against  them  with  regard  to  a
case registered by the Special Police Establishment (SPE)  of  the  Lokayukt
Organisation, against the officials of the Vidhan Sabha Secretariat as  well
as against the concerned officials of the  Capital  Project  Administration-
the Contractor  Company  alleging  irregularity  in  the  construction  work
carried out in the premises of Vidhan Sabha.

2)    It is  relevant  to  mention  that  Petitioner  No.1  herein  was  the
Lokayukt of the State of Madhya Pradesh appointed under  the  provisions  of
the Madhya Pradesh Lokayukt Evam Uplokayukt Act, 1981 (hereinafter  referred
to as “the Lokayukt Act”).  Petitioner No.2 was the Legal Advisor, a  member
of the Madhya  Pradesh  Higher  Judicial  Service  on  deputation  with  the
Lokayukt and Petitioner Nos. 3 to 5 were  the  officers  of  Madhya  Pradesh
Special Police Establishment.

3)    The petitioners herein claimed that the  said  letters  violate  their
fundamental rights under Articles 14, 19  and  21  of  the  Constitution  of
India and are contrary to Article 194(3) and prayed for the  issuance  of  a
writ, order or direction(s)  quashing  the  said  letters  as  well  as  the
complaints filed by Respondent Nos.  5,  6  (since  expired),  7,  8  and  9
herein.



4)    Brief facts

(a)   An anonymous complaint was received on 21.06.2005  in  the  office  of
the Lokayukt stating that a road connecting the Vidhan  Sabha  with  Vallabh
Bhawan,  involving  an  expenditure  of  about  Rs.  2  crores,  was   being
constructed without inviting  tenders  and  complying  with  the  prescribed
procedure.   It was also averred in the said complaint that with a  view  to
regularize  the  above-said  works,  the  officers  misused  their  official
position and got the work sanctioned to the Capital  Project  Administration
in violation of the rules which amounts to  serious  financial  irregularity
and misuse of office.  It was also mentioned in the said complaint  that  in
order to construct the said road,  one  hundred  trees  had  been  cut  down
without getting the permission from the  concerned  department.    The  said
complaint was registered as E.R. No.127 of 2005.  During  the  inquiry,  the
Deputy Secretary, Housing and  Environment  Department,  vide  letter  dated
18.08.2005 stated that the work had been allotted  to  the  lowest  tenderer
and the trees were cut only after obtaining the  requisite  permission  from
the Municipal Corporation.  In view  of  the  said  reply,  the  matter  was
closed on 22.08.2005.

(b)   On 22.12.2006, again a complaint was filed by one  Shri  P.N.  Tiwari,
supported  with  affidavit  and  various  documents,   alleging   the   same
irregularities in the said construction work by the officers of  the  Vidhan
Sabha Secretariat in  collusion  with  the  Capital  Project  Administration
which got registered as E.R. No. 122 of 2006. A copy of the  said  complaint
was sent to the Principal Secretary, Madhya Pradesh Government, Housing  and
Environment Department for comments.  In reply,  the  Additional  Secretary,
M.P. Government, Housing and Environment Department submitted  the  comments
along with certain documents stating that the Building  Controller  Division
working under the Capital Project  Administration  was  transferred  to  the
administrative control of the Vidhan  Sabha  Secretariat  vide  Order  dated
17.07.2000  and  consequently  the  Secretariat  Vidhan  Sabha  was   solely
responsible for the construction and  maintenance  work  within  the  Vidhan
Sabha premises.

(c)   On 26.06.2007, a request was made to the Principal Secretary,  Housing
and Environment Department  to  submit  all  the  relevant  records,  tender
documents, note sheets, administrative, technical  and  budgetary  sanctions
by 10.10.2007.  By letter dated 17.07.2007, the Under Secretary of the  said
Department informed that since the administrative sanctions were  issued  by
the Secretariat Vidhan Sabha, the materials were not  available  with  them.
In view of the  said  reply,  the  Lokayukt-(Petitioner  No.1  herein)  sent
letters dated 31.07.2007 addressed to the Principal Secretary,  Housing  and
Environment Department, Administrator, Capital  Project  Administration  and
the Deputy Secretary, Vidhan Sabha Secretariat to appear  before  him  along
with all the relevant records on 10.08.2007.  On 10.08.2007,  the  Principal
Secretary,  Housing  and  Environment  appeared  before  the  Lokayukt   and
informed  that  since  the   Controller   Buildings   of   Capital   Project
Administration was working under the administrative control  of  the  Vidhan
Sabha Secretariat since 2000, all sanctions/approvals and  records  relating
to construction and maintenance work were  available  in  the  Vidhan  Sabha
Secretariat.  In  view  of  the  above  reply,  the  Lokayukt  summoned  the
Secretary and the Deputy Secretary, Vidhan Sabha, Respondent Nos. 10 and  11
respectively on 24.08.2007 to give evidence and  produce  all  records/note-
sheets of administrative and technical sanctions and  budgetary  and  tender
approvals relating to construction works carried out in MLA Rest  House  and
Vidhan Sabha Premises in the year 2005-2006.

(d)   The  Secretary,  Vidhan  Sabha,  Respondent  No.  10  herein,  in  his
deposition dated 24.08.2007, admitted giving of administrative  approval  to
the estimated cost which was available with the office of the Lokayukta  and
stated that the relevant note-sheet was in the  possession  of  the  Hon’ble
Speaker, therefore, he prayed for time to produce the same by 07.09.2007.

(e)   Vide letter dated 07.09.2007, Respondent No.10 conveyed his  inability
to produce the same.  After receiving information from the  Chief  Engineer,
Public Works  Department,  Capital  Project,  Controller  Buildings,  Vidhan
Sabha, Capital Project  Administration  and  Chief  Engineer,  Public  Works
Department  vide  letters  dated  11.09.2007,  13.09.2007   and   18.09.2007
respectively, the Legal Advisor –Petitioner No. 2 herein – a member  of  the
M.P. Higher Judicial Service thoroughly examined the same and found that  it
is a fit case to be sent to the SPE for taking  action  in  accordance  with
law.  Petitioner No.1 was in agreement with the said  opinion.   Thereafter,
Crime Case No. 33/07 was registered  against  the  Secretary,  Vidhan  Sabha
(Respondent No.10 herein), Shri A.P. Singh, Deputy Secretary, Vidhan  Sabha,
the   then   Administrator,   Superintendent   Engineer,   Capital   Project
Administration and Contractors on 06.10.2007.

(f)   After registration of the case, Petitioner No.1 received the  impugned
letters dated 15.10.2007 and 18.10.2007 alleging breach of  privilege  under
Procedures and Conduct of Business Rules 164 of the  Madhya  Pradesh  Vidhan
Sabha against him and the officers of the Special Police Establishment.   In
response  to  the  aforesaid  letters,  by  letter  dated  23.10.2007,   the
Secretary, Lokayukt  explained  the  factual  position  of  Petitioner  No.1
herein stating that no case of breach of privilege was  made  out  and  also
pointed out that  neither  any  complaint  had  been  received  against  the
Hon’ble Speaker nor any inquiry was conducted by the  Lokayukt  Organization
against him nor his name was found in the FIR.

(g)   On 26.10.2007, the Secretary, Vidhan Sabha – Respondent No.4 sent  six
letters stating that the reply dated 23.10.2007 is not acceptable  and  that
individual replies should be sent by each of the petitioners.

(h)   Being aggrieved by the initiation of action  by  the  Hon’ble  Speaker
for breach of privilege, the petitioners have preferred this writ petition.

5)    Heard  Mr.  K.K.  Venugopal,  learned  senior  counsel  for  the  writ
petitioners, Mr. Mishra Saurabh, learned counsel  for  the  State-Respondent
No. 1 and Mr. C.D. Singh, learned counsel for the Secretary,  Vidhan  Sabha-
Respondent No.4.





Contentions:

6)    Mr. K.K. Venugopal, learned senior counsel for the petitioners  raised
the following contentions:-

(i) Whether the Legislative Assembly or its Members enjoy any  privilege  in
respect  of  an  inquiry  or  an  investigation  into  a  criminal   offence
punishable under any law for the time being in force, even when  inquiry  or
investigation was initiated in performance of duty enjoined by  law  enacted
by the very Legislative  Assembly  of  which  the  breach  of  privilege  is
alleged?

(ii) Whether officials of the  Legislative  Assembly  also  enjoy  the  same
privileges which are available to Assembly and its Members?

(iii) Whether seeking mere information or calling the  officials  of  Vidhan
Sabha Secretariat for providing information during inquiry or  investigation
amounts to breach of privilege?

(iv) In  view  of  the  letter  dated  23.08.2007,  sent  by  the  Principal
Secretary  to  Respondent  Nos.  10  and  11,  i.e.,  Secretary  and  Deputy
Secretary, Vidhan Sabha respectively directing them  to  appear  before  the
Lokayukt (as per the order of the Speaker), whether Respondent Nos.  10  and
11 can have any grievance that information  was  sought  from  them  without
sanction and knowledge of the Speaker?

7)     On  behalf  of  the  respondents,  particularly,   Respondent   No.4-
Secretary, Vidhan Sabha, Mr. C.D. Singh, at the foremost submitted that  the
present petition under Article 32 of  the  Constitution  of  India  invoking
writ jurisdiction of this Court is not maintainable as no fundamental  right
of the petitioners, as envisaged in Part III of the Constitution,  has  been
violated by any of the actions of Respondent No. 4.  It is their stand  that
every action pertaining to the Assembly and  its  administration  is  within
the  domain  and  jurisdiction  of  the  Hon’ble  Speaker.   The  matter  of
privilege is governed under the rules as contained in  Chapter  XXI  of  the
Rules of Procedure and Conduct of Business  in  the  Madhya  Pradesh  Vidhan
Sabha.  Hence, it  is  stated  that  the  writ  petition  is  liable  to  be
dismissed both on the ground of maintainability as well as on merits.

8)    Before considering rival contentions and the  legal  position,  it  is
useful  to  recapitulate  the  factual  details   and   relevant   statutory
provisions which are as under:-

      The legislature of the Central Province and Berar enacted the  Central
Provinces and Berar Special  Police  Establishment  Act,  1947  (hereinafter
referred to as ‘the SPE Act’).  Under the said Act, a Special  Police  Force
was constituted which has power to investigate the offences notified by  the
State Government under Section 3 of the said Act, which reads as under:-

      “3. Offences to be investigated by Special Police Establishment:-  The
      State Government  may,  by  notifications,  specify  the  offences  or
      classes of offences which are to be investigated by  (Madhya  Pradesh)
      Special Police Establishment.”

9)    On 16.09.1981, Legislative Assembly of the  State  of  Madhya  Pradesh
enacted the Lokayukt Act with the following objective as has been stated  in
the preamble of the said Act:-

      “An Act to make provision for the appointment and functions of certain
      authorities for  the  enquiry  into  the  allegation  against  “Public
      Servants” and for matters connected there with.”

Section 2(a) of the Lokayukt Act defines “officer” in the following manner:-


      “officer” means a person appointed to a  public  service  or  post  in
      connection with the affairs of the State of Madhya Pradesh.”

Section 2(b) defines “allegation” as follows:-

      “allegation” in relation to a public  servant  means  any  affirmation
      that such public servant,

      (i) has abused his position as such to obtain any gain  or  favour  to
      himself or to any other person or to cause undue harm to any person;

      (ii) was actuated in the discharge of his  functions  as  such  public
      servant by improper or corrupt motives;

      (iii) is guilty of corruption; or

      (iv)  is  in   possession   of   pecuniary   resources   or   property
      disproportionate to his known sources of  income  and  such  pecuniary
      resources or property is held by the public servant personally  or  by
      any member of his family or by some other person on his behalf.

      Explanation:- For  the  purpose  of  this  sub-clause  “family”  means
      husband, wife, sons and unmarried daughters living jointly with him;”

The phrase “Public Servant” has been  defined  under  Section  2(g)  of  the
Lokayukt Act in the following terms:

      “Public Servant” means a person falling under  any  of  the  following
      categories, namely:-

      (i) Minister;

      (ii) a person having the rank of a  Minister  but  shall  not  include
      Speaker and Deputy Speaker of the Madhya Pradesh Vidhan Sabha;

      (iii) an officer referred to in clause (a);

      (iv) an officer of an Apex  Society  or  Central  Society  within  the
      meaning of Clause (t-1) read with Clauses  (a-1),  (c-1)  and  (z)  of
      Section 2 of the Madhya Pradesh Co-operative Societies Act, 1960  (No.
      17 of 1961).

      (v) Any person holding any office in, or any employee of -

           (i) a Government Company within the meaning of  Section  617  of
           the Companies Act, 1956; or

           (ii) a Corporation  or  Local  Authority  established  by  State
           Government under a Central or State enactment.

      (vi) (a) Up-Kulpati, Adhyacharya and Kul Sachiva of  the  Indira  Kala
      Sangit Vishwavidyalaya constituted under Section 3 of the Indira  Kala
      Sangit Vishwavidyalaya Act, 1956 (No. 19 of 1956);

      (b)  Kulpati  and  Registrar  of  the   Jawahar   Lal   Nehru   Krishi
      Vishwavidyalaya constituted under Section 3 of  the  Jawaharlal  Nehru
      Krishi Vishwavidyalaya Act, 1963 (No. 12 of 1963);

      Kulpati Rector and Registrar of the Vishwavidyalay  constituted  under
      Section 5 of the Madhya Pradesh Vishwavidyalay Adhiniyam, 1973 (No. 22
      of 1973).”



10) Thus, all persons, except those specifically  excluded  under  the  said
definition, come within the domain of the  Lokayukt  Act  and  the  Lokayukt
can, therefore, entertain complaints and take  actions  in  accordance  with
the said provisions.  Section 7 of the said Act thereafter defines the  role
of the Lokayukt and the Up-Lokayukt in the following terms:-

      “7. Matters which may be enquired into by Lokayukt or Up-Lokayukt:-

      Subject to the provision of this Act, on receiving complaint or  other
      information:-

      (i) the Lokayukt may  proceed  to  enquire  into  an  allegation  made
      against a public servant in relation to whom the Chief Minister is the
      competent authority.

      (ii) the Up-Lokayukt may proceed to enquire into  an  allegation  made
      against any public servant other than referred to in clause (i)

      Provided that the Lokayukt may enquire into an allegation made against
      any public servant referred to in clause (ii).

      Explanation:- For the purpose of this  Section,  the  expression  “may
      proceed to enquire”,  and  “may  enquire”,  include  investigation  by
      Police agency put at the  disposal  of  Lokayukt  and  Up-Lokayukt  in
      pursuance of sub-Section (3) of Section 13.

11)   On 14.09.2000, the State Government issued a notification in  exercise
of powers under Section 3 of  the  SPE  Act  by  which  the  Special  Police
Establishment was empowered to  investigate  offences  with  regard  to  the
following offences:-

      (a) Offences punishable under the Prevention of Corruption  Act,  1988
      (No. 49 of 1988);

      (b) Offences under Sections 409 and  420  and  Chapter  XVIII  of  the
      Indian Penal Code, 1860 (No. XLV of 1860)  when  they  are  committed,
      attempted or abused  by  public  servants  or  employees  of  a  local
      authority or a statutory corporation,  when  such  offences  adversely
      affect the interests of the State Government or the local authority or
      the statutory corporation, as the case may be;

      (c) Conspiracies in respect of offences mentioned in item (a) and  (b)
      above; and

      (d) Conspiracies in respect of offences mentioned in item (a) and  (b)
      shall be charged with simultaneously in one trial under the provisions
      of Criminal Procedure Code, 1973 (No. 2 of 1974).

12)   As per the provision of Section 4 of the SPE Act, the  superintendence
of investigation by the M.P. Special Police Establishment was vested in  the
Lokayukt appointed under the Lokayukt Act.

13)   On 22.12.2006, a complaint was received  from  one  Shri  P.N.  Tiwari
supported by affidavit and various documents making allegations  that  works
had been carried out in the new Assembly building  by  the  Capital  Project
Administration in gross violation of the  rules,  without  making  budgetary
provisions and committing financial irregularities.  The said complaint  was
registered as E.R. 122 of 2006.  In the said  complaint,  it  was  mentioned
that:

(a)   An order  had  been  issued  to  the  Administrator,  Capital  Project
      Administration by Shri A.P.  Singh,  Deputy  Secretary,  Vidhan  Sabha
      giving administrative  approval  for  the  estimate  of  the  cost  of
      construction against rules and without making budgetary provision vide
      order dated 19.10.2005 in respect of the following works:
|S.No.    |Name of works                         |Amount in    |
|         |                                      |lakhs        |
|(i)      |Construction of 30 rooms in MLA Rest  |Rs. 5.51     |
|         |House Block-2                         |             |
|(ii)     |Construction of toilets in Block 1-3  |Rs. 25.48    |
|         |of MLA Rest House                     |             |
|(iii)    |Construction of shops in MLA Rest     |Rs. 5.98     |
|         |House premises                        |             |
|(iv)     |Up-gradation/construction of road from|             |
|         |Mazar to Gate No. 5 of Vidhan Sabha   |             |
|         |(Old Jail)                            |             |
|         |(a) Construction of road from Mazar to|Rs. 22.52    |
|         |Rotary                                |             |
|         |(b) Construction of road from Rotary  |Rs. 13.23    |
|         |to Jail Road                          |             |
|(v)      |Construction of lounge for the Speaker|Rs. 6.80     |
|         |and Officers in Vidhan Sabha Hall     |             |
|(vi)     |Construction of new reception zone    |Rs. 54.00    |
|         |(including parking/road) for Vidhan   |             |
|         |Sabha                                 |             |
|(vii)    |Upgradation work of campus lights and |Rs. 26.60    |
|         |electric work in MLA Rest House       |             |
|         |premises                              |             |
|(viii)   |Construction of road from Vidhan Sabha|             |
|         |to Secretariat (including development |             |
|         |of helipad and connected area) and    |             |
|         |proposed upgradation and development  |             |
|         |work of M.P. Pool/spraypond:          |             |
|         |(a) Construction of new road from the |Rs. 10.85    |
|         |VIP entrance upto the proposed new    |             |
|         |gate                                  |             |
|         |(b) Construction of road from present |Rs. 21.56    |
|         |Char Diwari to Rotary                 |             |
|         |(c) Construction of road from Rotary  |Rs. 12.00    |
|         |to Secretariat                        |             |
|         |Total sanctioned amount               |Rs. 204.53   |


(b)   the officers had abused their powers by getting the works carried  out
      without making budgetary provisions and without getting approval  from
      the Finance Department in respect  of  the  works  specified  at  item
      numbers (iv), (vi), (vii) and (viii) above.

(c)   Following financial irregularities were also pointed out:

      (i)   Though administrative approval was accorded by Shri A.P.  Singh,
           Deputy Secretary, Vidhan Sabha on 19.10.2005, works had  already
           been executed and inaugurated in the presence of the then  Chief
           Minister, Shri Babulal Gaur and the Speaker,  Vidhan  Sabha  and
           other Ministers on 03.08.2005.  The proper procedure is to first
           invite tenders and it  is  only  after  the  acceptance  of  the
           suitable tenders that work orders are to be issued.

      (ii)  Budgetary head of the Vidhan Sabha is 1555.  This head is  meant
           for  maintenance  and  not  for  new   construction,   but   the
           administrative approval dated 19.10.2005 was  accorded  by  Shri
           A.P. Singh, Deputy Secretary, Vidhan Sabha  in  respect  of  new
           works of total value of Rs. 160.76 lakh.

      iii) Works of the value of Rs. 160.76 lakh were carried  out  without
           any budgetary provision and also without  the  approval  of  the
           Finance Department.  Furthermore, a proposal had  been  sent  by
           the Capital Project Administration for sanction  of  budget  but
           the same was not approved by the Finance Department.  Even  then
           the works were got executed.

       iv) As per the approval dated  19.10.2005,  expenditure  was  to  be
           incurred from the main budgetary head 2217 which is the head  of
           Urban Development.  From that head, construction  activities  in
           the Vidhan Sabha premises could not be carried out.

        v)  The  Controller  Buildings,  Capital  Project  (Vidhan   Sabha)
           executed the works in collusion with the other officers  and  in
           violation of the rules.  It was stated that  the  officials  had
           abused their powers to regularize  their  irregular  activities.
           The works had been undertaken for the personal benefit  of  some
           officers and payments were made in violation of the rules.

14)   By letter dated 04.01.2007, a copy of the complaint was  sent  to  the
Principal Secretary, Madhya  Pradesh  Government,  Housing  and  Environment
Department calling factual comments along with the relevant documents.   The
comments were  submitted  by  the  Additional  Secretary,  M.P.  Government,
Housing and  Environment  Department  vide  letter  dated  15.05.2007.   The
comments,  inter  alia,  stated  that  the  Building   Controller   Division
functioning under the Capital Project Administration was transferred to  the
administrative control of the Vidhan  Sabha  Secretariat  vide  order  dated
17.07.2000, consequently, Secretariat Vidhan  Sabha  is  solely  responsible
for  the  construction  and  maintenance  works  within  the  Vidhan   Sabha
premises.   On  examination  of  the  comments  received  along   with   the
supporting documents, following discrepancies were revealed:

(a)   Whereas the comments stated that budget provision had  been  made  for
      an amount of Rs.204.53 lakh for the purpose  of  special  repairs  and
      maintenance of old and new Vidhan  Sabha  and  MLA  Rest  House  under
      Demand No. 21, main head 2217, sub  main  head  01,  minor  head  001,
      development head 1555 (3207), no amounts were  specified  under  those
      heads,  sub  heads  and  minor  heads  which  were  related   to   new
      construction works;

(b)   Whereas the comments  stated  that  work  had  been  executed  through
      tenders, but tender documents had not been annexed.

(c)   Whereas the comments stated that approval in  respect  of  nine  works
      had been accorded by the Secretariat, Vidhan Sabha on the  request  of
      the Controller Buildings on 21.03.2005, however, it is not clear  from
      the letter dated 21.03.2005  that  administrative  approval  had  been
      accorded; and

(d)   Whereas the comments stated that amended  sanction  was  granted  vide
      order dated 19.10.2005, while the letter  dated  19.10.2005  does  not
      indicate that it was an amended administrative sanction.

15)   In view of the above  preliminary  observations,  as  noted  above,  a
request was  made  to  the  Principal  Secretary,  Housing  and  Environment
Department to submit all relevant records,  tender  documents,  note-sheets,
administrative, technical and budgetary sanctions  by  10.07.2007.   It  was
again informed by the Under Secretary, Housing and  Environment  Department,
vide letter dated 17.07.2007 that since the  administrative  sanctions  were
issued by the Secretariat Vidhan Sabha, the note-sheets/records relating  to
such  sanctions  were  not  available  with  the  Housing  and   Environment
Department.

16)   In view of the reply submitted by the  Under  Secretary,  Housing  and
Environment Department,  the  Petitioner  sent  a  letter  dated  31.07.2007
addressed to the Principal Secretary, Housing  and  Environment  Department,
Administrator, Capital Project  Administration  and  the  Deputy  Secretary,
Vidhan Sabha Secretariat to  appear  before  the  Lokayukt  along  with  all
relevant information/records on 10.08.2007.

17)   On the date fixed for  appearance,  i.e.,  10.08.2007,  the  Principal
Secretary,  Housing  and  Environment  appeared  before  the  Lokayukt.   He
informed  that  since  the   Controller   Buildings   of   Capital   Project
Administration was working under the administrative control  of  the  Vidhan
Sabha Secretariat since the year 2000, all sanctions/approvals  and  records
regarding construction and maintenance works carried out in MLA  Rest  House
and Vidhan Sabha premises were available in the  Vidhan  Sabha  Secretariat.
On  receiving  such  information,  the  Principal  Secretary,  Vidhan  Sabha
Secretariat, informed that the records relating to construction  works  were
not with him and that such type of work was looked after  by  the  Secretary
and the Deputy Secretary, Vidhan Sabha.  In this  situation,  Secretary  and
Deputy Secretary, Vidhan Sabha Secretariat and Controller Buildings,  Vidhan
Sabha, Capital Project Administration were summoned  to  give  evidence  and
produce all records/note-sheets of administrative  and  technical  sanctions
and budgetary and tender approvals relating to  construction  works  carried
out in MLA Rest House and Vidhan Sabha  premises  in  the  year  2005-06  on
24.08.2007.  Summons were issued as per the provisions of Section  11(1)  of
the Lokayukt Act, read with Sections 61 and 244  of  the  Code  of  Criminal
Procedure, 1973.  Summons were received  by  the  Deputy  Secretary,  Vidhan
Sabha, Shri G.K. Rajpal and the Controller Buildings, Shri Devendra  Tiwari.
 Process Server of the Lokayukt Organisation tried to serve summons on  Shri
Israni in his office.  Process Server contacted Shri Harish  Kumar  Shrivas,
P.A. to Shri Israni.  The P.A. took  the  summons  to  Shri  Israni.   After
coming back, he asked the Process Server to wait till 4.00 p.m.  Later,  the
P.A. told the Process Server to take permission of the  Hon’ble  Speaker  to
effect service of the summons on the Secretary.  As such, summons could  not
be served on Shri Israni.

18)   Thereafter,  D.O.  letter  dated  14.08.2007  was  received  from  the
Principal Secretary, Vidhan Sabha stating that as per the direction  of  the
Hon’ble Speaker, he was informing the Lokayukt Organization that:

(a)   The Vidhan Sabha Secretariat was not aware as to the  complaint  which
      was being inquired into;

(b)    All  proceedings  relating  to  invitation  of   tenders,   technical
      sanction, work orders and payment  etc.  were  conducted  through  the
      Controller Buildings, Capital Project Administration  and,  therefore,
      all the records relating to these works should be available with them;

(c)   If, a copy of the complaint, which is being  inquired  into,  is  made
      available to the Vidhan Sabha Secretariat, it  would  be  possible  to
      make the position more clear.  That was the reason why the Speaker had
      not granted permission to the Deputy Secretary to appear in the Office
      of the Lokayukt; and

(d)   Under the provisions of Section 2(g)(ii)  of  the  Lokayukt  Act,  the
      Speaker, the Deputy Speaker and the Leader of Opposition are  exempted
      from the jurisdiction of the Lokayukt.

19)    Shri Israni appeared before  the  Lokayukt  on  24.08.2007  when  his
deposition  was  recorded.   In  his  deposition,   he   stated   that   the
administrative approval to the estimated cost dated  19.10.2005  was  given,
which was available with the office of  the  Lokayukt.   He  further  stated
that note-sheet relating to administrative approval had been prepared  which
was in possession of the Speaker.  Accordingly, he was required  to  produce
the same by 07.09.2007.

20)   Information was called for  from  the  Chief  Engineer,  Public  Works
Department, Capital Project  Administration,  Controller  Buildings,  Vidhan
Sabha, Capital Project  Administration  and  Chief  Engineer,  Public  Works
Department.   The  same  was  received  vide   letters   dated   11.09.2007,
13.09.2007 and 18.09.2007 respectively.

21)   Scrutiny note was  prepared  by  the  Legal  Advisor,  Mrs.  Vibhawari
Joshi,  a  member  of  the  Madhya  Pradesh  Higher  Judicial  Service,   on
deputation  to  the  Lokayukt  Organization,  with  the  assistance  of  the
Technical Cell, with the approval of the  Lokayukt.   After  examination  of
the  information  and  records  received  from   the   various   authorities
concerned, she prima facie found established that:

(a)   contracts in respect of construction of roads and reception plaza  and
renovation of toilets were awarded  at  rates  higher  than  the  prevailing
rates;

(b)   works were got executed even when there were no budgetary  provisions.
 Demand for budget was made from the Finance Department  but  the  same  had
not been accepted;

(c)   new construction works of the  value  of  Rs.  173.54  lakh  were  got
executed from the maintenance head, which was  not  permissible,  since  the
maintenance head is meant for maintenance works and not for new works;

(d)    for  new  construction  works  of  the  value  of   Rs.173.54   lakh,
administrative approval and technical sanction  had  been  accorded  by  the
authorities, who were not competent to do so;

(e)    works  of  Rs.205.61  lakh  were  got  executed   without   obtaining
administrative approval and technical sanction;

(f)   records show that measurements of WBM work  were  recorded  after  the
Bitumen work (tarring) had been completed.  Proper procedure is  that  first
the measurements of WBM  work  are  recorded,  thereafter  Bitumen  work  is
executed and  it  is  only  thereafter  measurements  of  Bitumen  work  are
recorded.  Discrepancies in the recording of measurements create doubt;

(g)   Rules provide that in the Notice Inviting Tenders (NIT),  schedule  of
quantities is annexed so that  the  tenderers  may  make  proper  assessment
while quoting rates, but in the present  case,  in  the  NIT  for  roads  in
Schedule-I, quantities were not specified.  So, it  was  difficult  for  the
tenderers to make proper assessment while quoting rates.  This throws  doubt
on the legitimacy of the process.

(h)   (i)   Road was to be constructed within the diameter  of  300  meters.
      For this small area, work was split up into  five  portions  and  four
      contractors were engaged.  Rules provide  that  for  one  road,  there
      should be one estimate, one technical sanction and one  NIT.   In  the
      present case, five estimates were prepared, five  technical  sanctions
      were granted, five tenders were  invited  and  four  contractors  were
      engaged.  This throws doubt on the legitimacy of the process;

      (ii)  There are three processes involved in the construction of roads,
      i.e., WBM, Bitumen and thermoplastic.  As per the rules and  practice,
      for all the three processes, there should be one tender,  but  in  the
      present case, the work was split up into three portions inasmuch  work
      of WBM was given to two contractors, work of Bitumen to one other  and
      work of thermoplastic to still another;

      (iii) Cement concrete road was constructed for a  small  part  of  the
      same road.  For this small part of the road another separate  NIT  was
      invited and work was awarded to a separate contractor, i.e., the fifth
      contractor;

(i)   The Secretary and the Deputy Secretary  of  Vidhan  Sabha  Secretariat
and Administrator,  Superintending  Engineer  and  Controller  Buildings  of
Capital Project Administration in collusion with the contractors,  in  order
to give undue benefits to them by abusing  their  official  position  caused
loss of Rs.12,62,016/- to Rs.20,71,978/- to the Government.

In view of the above, the Legal Advisor (Petitioner  No.2  herein)  recorded
her opinion that it is a fit case to be sent to the SPE  for  taking  action
in accordance with law.  The Lokayukt Petitioner No. 1 agreed with the  note
of the Legal Advisor and observed that it is a fit case  to  be  dealt  with
further by the SPE.  The case was accordingly sent to the SPE.

22)   The SPE, thereafter, registered Crime Case  No.  33/07  on  06.10.2007
against Shri Bhagwan Dev Israni, Secretary Vidhan Sabha,  Shri  A.P.  Singh,
Deputy  Secretary  Vidhan  Sabha,  the  then  Administrator,  Superintending
Engineer, Capital Project Administration and Contractors.   Soon  after  the
registration of the criminal case, the  petitioners  received  the  impugned
notices dated 15.10.2007 wherein allegations of  breach  of  privilege  were
made against the petitioners.  The  petitioners  understood  that  the  said
letters had been issued on the basis of some complaints by  the  Members  of
Legislative Assembly.  The petitioners received further notices  for  breach
of privilege on the basis of the complaint made by Shri Gajraj Singh, MLA.

23)   In response to the aforesaid letters, the Secretary  of  the  Lokayukt
Organization, on the direction of the Petitioner No. 1 sent a  letter  dated
23.10.2007, to Respondent No.  4-Shri  Qazi  Aqlimuddin,  Secretary,  Vidhan
Sabha  giving  in  details  about  the  constitutional,  legal  and  factual
position stating that no case of  privilege  was  made  out.   It  was  also
pointed out that  neither  any  complaint  had  been  received  against  the
Speaker, Respondent No. 1 nor any inquiry  was  conducted  by  the  Lokayukt
Organization against him nor was he named in the FIR.

24)   Respondent No. 4, i.e., Secretary, Vidhan Sabha, thereafter  sent  six
letters dated 26.10.2007 to the  petitioners.   By  the  said  letters,  the
petitioners were informed that the  reply  dated  23.10.2007  had  not  been
accepted and it was directed that individual replies should be sent by  each
of the petitioners.  Being aggrieved by the  initiation  of  action  by  the
Speaker for breach of privilege against the  petitioners,  as  noted  above,
the petitioners herein filed the present writ petition.

Maintainability of the writ petition under Article 32 of the Constitution:

25)   Mr. C.D. Singh, learned counsel  appearing  for  Respondent  No.4,  by
drawing our attention to  the  relief  prayed  for  and  of  the  fact  that
quashing relates to letters on various dates wherein after pointing out  the
notice of breach of privilege received from the members  of  Madhya  Pradesh
Assembly sought comments/opinion within seven days for consideration of  the
Hon’ble Speaker, submitted that the proper course would be to  submit  their
response and writ petition under Article 32 of the Constitution of India  is
not maintainable.

26)   Mr. Venugopal, learned senior counsel for  the  petitioners  submitted
that as  the  impugned  proceedings  which  are  mere  letters  calling  for
response as they relate to breach  of  privilege,  amount  to  violation  of
rights under Article  21  of  the  Constitution,  hence,  the  present  writ
petition is maintainable.  In support of his claim, he referred  to  various
decisions of this Court.

27)    There  is  no  dispute  that  all   the   impugned   proceedings   or
notices/letters/complaints made by various members  of  the  Madhya  Pradesh
Assembly claimed that the writ petitioners violated  the  privilege  of  the
House.  Ultimately, if their replies are  not  acceptable,  the  petitioners
have no other remedy except to face the consequence,  namely,  action  under
Madhya Pradesh Vidhan Sabha Procedure and Conduct of Business  Rules,  1964.
If any decision is taken by the House, the  petitioners  may  not  be  in  a
position to challenge the same effectively before the court of law.  In  The
Bengal Immunity Company Limited vs. The State of Bihar and Others, [1955]  2
SCR 603, seven Hon’ble Judges of this Court accepted similar writ  petition.
 The said case arose against the judgment of the High Court of  Patna  dated
04.12.1952 whereby it dismissed  the  application  made  by  the  appellant-
Company under Article 226 of the Constitution  praying  for  an  appropriate
writ or order quashing the proceedings issued by the  opposite  parties  for
the purpose of levying and realising a tax which is  not  lawfully  leviable
on the petitioners and for other ancillary  reliefs.   As  in  the  case  on
hand, it has been argued before the seven-Judge Bench that  the  application
was premature, for there has, so far, been no investigation  or  finding  on
facts and no assessment under Section 13 of the  Act.   Rejecting  the  said
contention, this Court held thus:

      “…. In the first place, it ignores the plain fact  that  this  notice,
      calling upon the appellant company to forthwith get itself  registered
      as a dealer, and to submit a return  and  to  deposit  the  tax  in  a
      treasury in Bihar, places upon it  considerable  hardship,  harassment
      and liability which, if the Act is void under article  265  read  with
      article 286  constitute,  in  presenti,  an  encroachment  on  and  an
      infringement of its right which entitles it to immediately  appeal  to
      the appropriate Court for redress.  In the next place, as was said  by
      this Court in Commissioner of Police, Bombay  vs.  Gordhandas  Bhanji,
      [1952] 3 SCR 135 when an order  or  notice  emanates  from  the  State
      Government or any of its responsible officers directing a person to do
      something, then, although the order or notice may eventually transpire
      to be ultra vires and bad in law, it  is  obviously  one  which  prima
      facie compels obedience as a matter of prudence  and  precaution.   It
      is, therefore, not reasonable to expect the person served with such an
      order or notice to ignore it on the ground that it is illegal, for  he
      can only do so at his own risk and that a  person  placed  in  such  a
      situation has the right to be told  definitely  by  the  proper  legal
      authority exactly where he stands and what he may or may not do.

           Another plea advanced  by  the  respondent  State  is  that  the
      appellant company is not entitled to take proceedings praying for  the
      issue of prerogative writs  under  article  226  as  it  has  adequate
      alternative remedy  under  the  impugned  Act  by  way  of  appeal  or
      revision.  The answer to this plea is short and  simple.   The  remedy
      under the Act cannot be said to be adequate and is,  indeed,  nugatory
      or useless if the Act which provides for such remedy is  itself  ultra
      vires and void and the principle relied upon can, therefore,  have  no
      application where a party comes to Court with an allegation  that  his
      right has been or is being threatened to be infringed by a  law  which
      is ultra vires the powers of the legislature which enacted it  and  as
      such void and prays for appropriate relief under article 226.  As said
      by this Court in Himmatlal Harilal  Mehta  vs.  The  State  of  Madhya
      Pradesh (supra) this  plea  of  the  State  stands  negatived  by  the
      decision of this Court in The State of Bombay vs.  The  United  Motors
      (India) Ltd. (supra).  We are, therefore, of the opinion, for  reasons
      stated above, that the High Court was not right in  holding  that  the
      petition under article 226 was misconceived or was  not  maintainable.
      It will, therefore, have to be examined and decided  on  merits….  ….”



28)   In East India Commercial Co.,  Ltd.,  Calcutta  and  Another  vs.  The
Collector of Customs, Calcutta, [1963] 3 SCR 338,  which  is  a  three-Judge
Bench decision, this Court negatived similar objection  as  pointed  out  in
our case by the State.  In that case, the appellants-East  India  Commercial
Co. Ltd., Calcutta had brought into India from U.S.A. a  large  quantity  of
electrical instruments  under  a  licence.   The  respondent,  Collector  of
Customs, Calcutta, started  proceedings  for  confiscation  of  these  goods
under Section 167(8) of the Sea Customs Act, 1878.   The  appellants  mainly
contended that the proceedings are  entirely  without  jurisdiction  as  the
Collector can confiscate only when there is an import  in  contravention  of
an order prohibiting or restricting it and in that case  the  Collector  was
proceeding to confiscate on the ground  that  a  condition  of  the  licence
under  which  the  goods  had  been  imported  had  been   disobeyed.    The
appellants, therefore, prayed  for  a  writ  of  prohibition  directing  the
Collector to stop the proceedings.  The objection  of  the  other  side  was
that the appellant had approached the High Court at  the  notice  stage  and
the same cannot  be  considered  under  Article  226  of  the  Constitution.
Rejecting the said contention, this Court held:

      “…..The respondent proposed to take action under Section 167(8) of the
      Sea Customs Act, read with Section 3(2) of  the  Act.   It  cannot  be
      denied that the proceedings under the said sections are quasi-judicial
      in nature.  Whether a statute provides for a  notice  or  not,  it  is
      incumbent upon the  respondent  to  issue  notice  to  the  appellants
      disclosing the circumstances under which proceedings are sought to  be
      initiated against them.  Any proceedings  taken  without  such  notice
      would be against the principles of natural justice.   In  the  present
      case, in our view, the respondent rightly issued such a notice wherein
      specific acts constituting contraventions of  the  provisions  of  the
      Acts for which action was to  be  initiated  were  clearly  mentioned.
      Assuming that a notice could be laconic, in the present case it was  a
      speaking one clearly specifying the alleged act of contravention.   If
      on a reading of the said notice, it is manifest that on the assumption
      that the facts alleged or allegations made therein were true, none  of
      the conditions laid down in the specified  sections  was  contravened,
      the respondent would have  no  jurisdiction  to  initiate  proceedings
      pursuant to that notice.  To  state  it  differently,  if  on  a  true
      construction of the provisions of the said two sections the respondent
      has no jurisdiction to initiate proceedings or make an  inquiry  under
      the said sections in respect of certain acts alleged to have been done
      by the appellants, the respondent can  certainly  be  prohibited  from
      proceeding with the same.   We,  therefore,  reject  this  preliminary
      contention.”



29)   In Kiran Bedi & Ors. vs. Committee of Inquiry & Anr. [1989] 1 SCR  20,
which is also a three Judge Bench decision, the following conclusion in  the
penultimate paragraph is relevant:

      “47 As regards points (v), (vi) and (vii) suffice it to point out that
      the petitioners have apart from filing special  leave  petitions  also
      filed writ petitions challenging the very same  orders  and  since  we
      have held that the  action  of  the  Committee  in  holding  that  the
      petitioners were not covered by Section 8B of the Act  and  compelling
      them  to  enter  the  witness  box  on  the  dates  in  question   was
      discriminatory and the orders directing complaint being filed  against
      the petitioners were  illegal,  it  is  apparently  a  case  involving
      infringement of Articles 14 and 21 of the  Constitution.   In  such  a
      situation the power of this Court to  pass  an  appropriate  order  in
      exercise of  its  jurisdiction  under  Articles  32  and  142  of  the
      Constitution cannot be seriously doubted particularly having regard to
      the special facts and circumstances  of  this  case.   On  the  orders
      directing  filing  of  complaints  being  held  to  be   invalid   the
      consequential complaints and the  proceedings  thereon  including  the
      orders of the Magistrate issuing summons cannot survive and it  is  in
      this view of the matter that by our order dated 18th August,  1988  we
      have quashed them.  As regards the submission that it was  not  a  fit
      case for interference either under Article 32 or Article  136  of  the
      Constitution inasmuch as it was still open to the petitioners to prove
      their innocence before the Magistrate, suffice it to say that  in  the
      instant case if the petitioners are compelled to face  prosecution  in
      spite of the finding that the orders directing complaint to  be  filed
      against them were illegal it would obviously cause prejudice to  them.
      Points (v), (vi) and (vii) are decided accordingly.”

It is clear from the above decisions that if  it  is  established  that  the
proposed actions are not permissible involving infringement of  Articles  14
and 21 of the Constitution, this Court is well  within  its  power  to  pass
appropriate order in exercise of its jurisdiction under Articles 32 and  142
of the Constitution.  Further, if the petitioners are compelled to face  the
privilege proceedings before the Vidhan Sabha, it would cause  prejudice  to
them.  Further, if the petitioners  are  compelled  to  face  the  privilege
motion in spite of  the  fact  that  no  proceeding  was  initiated  against
Hon’ble Speaker or Members of the House but only relating  to  the  officers
in respect of contractual matters, if urgent intervention is not sought  for
by  exercising  extraordinary  jurisdiction,  undoubtedly,  it  would  cause
prejudice to the petitioners.

30)   Accordingly,  we  reject  the  preliminary  objection  raised  by  the
counsel for Respondent No.4 and hold that writ petition under Article 32  is
maintainable.

31)    With  the  above  factual  background  and  the  relevant   statutory
provisions, let us examine the rival submissions.

32)   Now, we will consider the contentions raised  by  Mr.  Venugopal.   As
mentioned earlier, Petitioner No. 1 is  the  Lokayukt  appointed  under  the
provisions of the Lokayukta Act exercising powers and functions as  provided
under the Act.  In the course of the performance of the said functions,  the
Lokayukt Organization received a complaint regarding certain  irregularities
in the award of contracts.  Petitioner Nos. 1 and  2,  therefore,  conducted
preliminary inquiry in the matter and on finding that  a  prima  facie  case
under the Prevention  of  Corruption  Act  was  made  out,  the  matter  was
referred to the SPE established under the provisions  of  the  M.P.  Special
Police Establishment Act, 1947 to be dealt with further, and  thereafter,  a
case was registered by the said Establishment under the  provisions  of  the
Prevention of Corruption Act, 1988.

33)   Article 194(3) of the Constitution  provides  for  privileges  of  the
Legislative Assembly and its members which reads as under:

      “194. Powers, privileges, etc, of the House of Legislatures and of the
      members and committees thereof

      (1)   ***

      (2)   ***

      (3) In other respects, the powers,  privileges  and  immunities  of  a
      House  of  the  Legislature  of  a  State,  and  of  the  members  and
      the committees of a House of such Legislature, shall be  such  as  may
      from time to time be defined by the Legislature by law, and, until  so
      defined,  shall  be  those  of  that  House and  of  its  members  and
      committees immediately before the coming into force of Section  26  of
      the Constitution forty fourth Amendment Act, 1978.”



34)   Article 194 is similar to  Article  105  of  the  Constitution,  which
provides for the  privileges  of  Parliament  and  its  Members.   The  said
Articles provide that the privileges enjoyed by  the  legislature  shall  be
such as may from time to time be defined by the legislature by law.   It  is
relevant to mention that any law made by the Parliament or  the  legislature
is subject to the discipline contained in  Part  III  of  the  Constitution.
The privileges have not been defined but the  above  Article  provides  that
until the same are so defined (i.e. by the legislature by law),  they  shall
be those which the House or its members and committees  enjoyed  immediately
before the coming into force of Section 26 of the Constitution  Forty-fourth
Amendment Act, 1978.

35)   As per Chapter XI  of  the  ‘Practice  and  Procedure  of  Parliament’
(Fifth  edition),  by  M.N.  Kaul  and   S.L.   Shakdher   in   interpreting
parliamentary privileges at Page 211 observed:

      “…regard must be had to the general principle that the  privileges  of
      Parliament are granted to members in order that they may  be  able  to
      perform their duties in Parliament without  let  or  hindrance.   They
      apply to individual members only insofar  as  they  are  necessary  in
      order that the House may freely perform its functions.   They  do  not
      discharge the member from the obligations to society  which  apply  to
      him as much and perhaps more closely in that capacity, as  they  apply
      to other subjects.  Privileges of Parliament do not place a Member  of
      parliament on a footing different from that of an ordinary citizen  in
      the matter of the application  of  laws  unless  there  are  good  and
      sufficient reasons in the interest of Parliament itself to do so.

            The  fundamental  principle  is  that  all  citizens,  including
      members of Parliament, have to be treated equally in the  eye  of  the
      law.  Unless so specified in the Constitution or in any law, a  member
      of Parliament cannot claim any privileges higher than those enjoyed by
      any ordinary citizen in the matter of the application of law.”



36)    It  is  clear  that  in  the  matter  of  the  application  of  laws,
particularly, the provisions of the  Lokayukt  Act  and  the  Prevention  of
Corruption Act, 1988, insofar as the jurisdiction of  the  Lokayukt  or  the
Madhya Pradesh Special  Establishment  is  concerned,  all  public  servants
except the Speaker and the Deputy  Speaker  of  the  Madhya  Pradesh  Vidhan
Sabha for the purposes of the Lokayukt Act fall in  the  same  category  and
cannot claim any privilege  more  than  an  ordinary  citizen  to  whom  the
provisions of the said Acts apply.   In  other  words,  the  privileges  are
available only insofar as they are necessary in order  that  the  House  may
freely perform its functions but do not extend to the activities  undertaken
outside the House on which the legislative provisions  would  apply  without
any differentiations.  In view of the above, we reject the  contra  argument
made by Mr. C.D. Singh.

37)   As rightly submitted by Mr. K.K. Venugopal, in India,  there  is  rule
of law and not of men and, thus, there is primacy of  the  laws  enacted  by
the legislature which do not discriminate between persons to whom such  laws
would apply.  The laws would apply  to  all  such  persons  unless  the  law
itself makes an exception on a  valid  classification.   No  individual  can
claim  privilege  against  the  application  of  laws  and  for  liabilities
fastened on commission of a prohibited Act.

38)   In respect of the scope of the privileges enjoyed by the Members,  the
then Speaker Mavalankar, while addressing the conference  of  the  Presiding
Officers at Rajkot, on 03.01.1955, observed:

      “The simply reply to this is that those privileges which are  extended
      by the Constitution to the legislature, its members, etc. are  equated
      with the privileges of the House of Commons in England.  It has to  be
      noted here that the House of Commons does not allow  the  creation  of
      any privileges; and  only  such  privileges  are  recognized  as  have
      existed by long time custom.”

39)   The scope  of  the  privileges  enjoyed  depends  upon  the  need  for
privileges, i.e., why they have been provided for.  The  basic  premise  for
the privileges enjoyed by the members is to  allow  them  to  perform  their
functions as members and no hindrance is caused to the  functioning  of  the
House.  Committee of Privileges of the  Tenth  Lok  Sabha,  noted  the  main
arguments that have been advanced in favour of codification, some  of  which
are as follows:

      “(i)  Parliamentary privileges are intended to be enjoyed on behalf of
      the people, in their interests and not against the people  opposed  to
      their interests;

      ***                    ***                   ***

      (iii)  the  concept  of  privileges  for  any  class  of   people   is
      anarchronistic in a democratic society and, therefore, if  any,  these
      privileges should be the barest minimum –  only  those  necessary  for
      functional purposes – and invariably  defined  in  clear  and  precise
      terms;

      (iv)  sovereignty of Parliament has increasingly become a myth  and  a
      fallacy for, sovereignty, if any, vests only in the  people  of  India
      who exercise it at the time of general elections to the Lok Sabha  and
      to the State Assemblies;

      (v)   in a system wedded to freedom  and  democracy  –  rule  of  law,
      rights of the individual,  independent  judiciary  and  constitutional
      government – it is only  fair  that  the  fundamental  rights  of  the
      citizens enshrined in the Constitution should have  primacy  over  any
      privileges or special rights of any class  of  people,  including  the
      elected legislators, and that all such claims  should  be  subject  to
      judicial scrutiny, for situations may arise where the  rights  of  the
      people may have to be protected even against the Parliament or against
      captive or capricious parliamentary majorities of the moment;

      (vi)  the Constitution specifically envisaged privileges of the Houses
      of parliament and State Legislatures and their members and  committees
      being defined by law by the respective legislatures and  as  such  the
      Constitution-makers definitely intended these privileges being subject
      to the fundamental rights, provisions  of  the  Constitution  and  the
      jurisdiction of the courts;

      ***                    ***                   ***

      (viii)      in any case, there is no question of any fresh  privileges
      being added inasmuch as (a) under the Constitution, even  at  present,
      parliamentary privileges in India continue in actual  practice  to  be
      governed by the precedents of the House of Commons as they existed  on
      the day our Constitution came into force; and  (b)  in  the  House  of
      Commons itself, creation of new privileges is not allowed.”

40)   The Committee also noted  the  main  arguments  against  codification.
Argument no. (vii) is as under:

      “(vii)      The basic law that all citizens should be treated  equally
      before the law holds good in the case  of  members  of  Parliament  as
      well.  They have the same rights and liberties  as  ordinary  citizens
      except  when  they  perform  their  duties  in  the  Parliament.   The
      privileges, therefore, do not, in any way, exempt members  from  their
      normal obligation to society which apply to them as much and, perhaps,
      more closely in that as they apply to others.”

41)   It is clear that the basic concept is that the  privileges  are  those
rights without which the House cannot  perform  its  legislative  functions.
They do not exempt the Members from  their  obligations  under  any  statute
which continue to apply to them like any other law  applicable  to  ordinary
citizens.  Thus, enquiry or investigation into an allegation  of  corruption
against some  officers  of  the  Legislative  Assembly  cannot  be  said  to
interfere with the legislative functions of the  Assembly.   No  one  enjoys
any privilege against criminal prosecution.

42)   According to Erskine May, the privilege of  freedom  from  arrest  has
never been allowed to interfere with the administration of criminal  justice
or emergency legislation.  Thus, in any case, there cannot be any  privilege
against conduct of  investigation  for  a  criminal  offence.   There  is  a
provision that in case a member is arrested or detained, the House ought  to
be informed about the same.

43)   With regard to “Statutory detention”, it has been stated, thus:

      “The detention of  a  member  under  Regulation  18B  of  the  Defence
      (General), Regulation 1939, made under the Emergency Powers  (Defence)
      Acts 1939 and 1940, led to the committee of privileges being  directed
      to consider whether such detention constituted a breach  of  Privilege
      of the House; the committee reported  that  there  was  no  breach  of
      privilege involved.  In the case of a member  deported  from  Northern
      Rhodesia  for  non-compliance  with  an  order  declaring  him  to  be
      prohibited immigrant, the speaker held that there was  no  prima-facie
      case of breach of privilege.

      The detention of members in Ireland in 1918 and 1922 under the Defence
      of the Realm Regulations and the Civil  Authorities  (Special  Powers)
      Act, the speaker  having  been  informed  by  respectively  the  Chief
      Secretary of the Lord Lieutenant and the  secretary  to  the  Northern
      Ireland Cabinet, was communicated by him to the House.”

44)   The committee for Privileges of the Lords has  considered  the  effect
of the powers of  detention  under  the  Mental  Health  Act,  1983  on  the
privileges of freedom from arrest referred to in Standing Order No. 79  that
‘no Lord of Parliament is to be imprisoned or  restrained  without  sentence
or order of the House unless upon a criminal  charge  or  refusing  to  give
security for the peace’.  The Committee accepted the advice of Lord  Diplock
and other Law Lords  that  the  provisions  of  the  statute  would  prevail
against any existing privilege of Parliament or of peerage.

45)   In Raja Ram Pal vs. Hon’ble Speaker, Lok Sabha and  Others,  (2007)  3
SCC 184, this Court observed:

      “71. In U.P. Assembly case (Special Reference No. 1  of  1964),  while
      dealing with questions relating to powers, privileges  and  immunities
      of the State Legislatures, it was observed as under:
        “70. … Parliamentary privilege, according to May, is the sum of the
        peculiar rights enjoyed by each House collectively as a constituent
        part of the High Court of Parliament, and by Members of each  House
        individually,  without  which  they  could  not   discharge   their
        functions, and which exceed those  possessed  by  other  bodies  or
        individuals. Thus, privilege, though part of the law of  the  land,
        is to a certain extent an exemption  from  the  ordinary  law.  The
        particular privileges of the House of Commons have been defined as
           ‘the sum of the fundamental rights  of  the  House  and  of  its
           individual Members as against the prerogatives of the Crown, the
           authority of the ordinary courts of law and the  special  rights
           of the House of Lords’.
        … …. The privileges of Parliament are rights which are  ‘absolutely
        necessary for the due execution of its powers’. They are enjoyed by
        individual Members, because the House cannot perform its  functions
        without unimpeded use of the services of its Members; and  by  each
        House for the protection of its Members and the vindication of  its
        own authority and dignity (May’s Parliamentary  Practice,  pp.  42-
        43).”


      The privilege of  freedom  from  arrest  has  never  been  allowed  to
   interfere with  the  administration  of  criminal  justice  or  emergency
   legislation.


      87. In U.P. Assembly case (Special Reference No. 1  of  1964)  it  was
      settled by this Court that a broad claim that all the  powers  enjoyed
      by the House of Commons at the commencement  of  the  Constitution  of
      India vest in an Indian Legislature cannot be accepted in its entirety
      because there are some powers which cannot obviously be so claimed. In
      this context, the following observations appearing at SCR  p.  448  of
      the judgment should suffice: (AIR p. 764, para 45)
        “Take the privilege of freedom of access which is exercised by  the
        House of Commons as a body and through its Speaker ‘to have at  all
        times the right to petition, counsel,  or  remonstrate  with  their
        Sovereign through their chosen representative and have a favourable
        construction placed on his words was justly regarded by the Commons
        as  fundamental  privilege’  [Sir   Erskine   May’s   Parliamentary
        Practice, (16th Edn.), p. 86]. It is hardly necessary to point  out
        that  the  House  cannot  claim  this  privilege.  Similarly,   the
        privilege to pass acts of  attainder  and  impeachments  cannot  be
        claimed by  the  House.  The  House  of  Commons  also  claims  the
        privilege in regard to its  own  Constitution.  This  privilege  is
        expressed in three ways, first by the order of new  writs  to  fill
        vacancies that arise in the Commons in the course of a  Parliament;
        secondly, by the trial of controverted elections; and  thirdly,  by
        determining the qualifications of its members  in  cases  of  doubt
        (May’s Parliamentary  Practice,  p.  175).  This  privilege  again,
        admittedly, cannot be claimed by the House. Therefore, it would not
        be correct to  say  that  all  powers  and  privileges  which  were
        possessed by the House of Commons  at  the  relevant  time  can  be
        claimed by the House.”


      195. The debate on  the  subject  took  the  learned  counsel  to  the
      interpretation and exposition of law of Parliament as is found in  the
      maxim lex et  consuetudo  parliamenti  as  the  very  existence  of  a
      parliamentary privilege is a substantive issue  of  parliamentary  law
      and not a question of mere procedure and practice.”



46)   In A. Kunjan Nadar vs. The State, AIR 1955 Travancore-Cochin 154,  the
High Court while dealing with the scope of privileges under  Article  194(3)
of the Constitution held as under:-

      “(3) Article 194(3) deals with the powers, privileges  and  immunities
      of the Legislature and their members in Part A states and Article  238
      makes  those  powers,   privileges   and   immunities   available   to
      legislatures and its members in the Part B states  as  well.   Article
      194(3) deals with the  privileges  and  immunities  available  to  the
      petitioner in a matter like this and they are according to that clause
      “such as may time to time be defined by the legislature  by  law”  and
      until so defined, those of a member of the House  of  Commons  of  the
      Parliament  of  the  United  Kingdom  at  the  commencement   of   the
      constitution.

      (4) As stated before, there is no  statutory  provision  granting  the
      privilege or immunity invoked by the petitioner and it is  clear  from
      May’s Parliamentary Practice 15th Edn. 1950, p. 78 that “the privilege
      from freedom from  arrest  is  not  claimed  in  respect  of  criminal
      offences or statutory detention” and that the said freedom is  limited
      to civil clauses, and has not  been  allowed  to  interfere  with  the
      administration of criminal justice or emergency legislation.

      Xxxx xxxx xxxx

      (8) …… So long as the detention is legal – and in this case  there  is
      no dispute about its legality – the danger of  the  petitioner  losing
      his seat or  the  certainty  of  losing  his  daily  allowance  cannot
      possibly form the foundation for relief against the normal or possible
      consequences of such detention.”

47)   In Dasaratha Deb case (1952), the Committee  of  Privileges-Parliament
Secretariat Publication, July 1952, inter alia, held that the  arrest  of  a
Member of Parliament in the course of  administration  of  criminal  justice
did not constitute a breach of privilege of the House.

48)   On 24.12.1969, a question of privilege was raised  in  the  Lok  Sabha
regarding arrests of some members while they were stated to be on their  way
to attend the House.  The Chair ruled that since the members  were  arrested
under the provisions of the Indian Penal Code and  had  pleaded  guilty,  no
question of privilege was involved.

49)   In order to constitute a breach of privilege, however, a libel upon  a
Member of Parliament must concern his character or conduct in  his  capacity
as a member of the House and must  be  “based  on  matters  arising  in  the
actual transaction of the business of the House.” Reflections  upon  members
otherwise than in their capacity as members do not, therefore,  involve  any
breach of privilege or  contempt  of  the  House.   Similarly,  speeches  or
writings containing vague  charges  against  members  of  criticizing  their
parliamentary conduct in a strong language, particularly, in the heat  of  a
public controversy, without, however,  imputing  any  mala  fides  were  not
treated by the House as a contempt or breach of privilege.

50)   Similarly, the privilege against assault or molestation  is  available
to a member only when  he  is  obstructed  or  in  any  way  molested  while
discharging his duties as  a  Member  of  the  Parliament.   In  cases  when
members were assaulted while they  were  not  performing  any  parliamentary
duty it was held that no breach of privilege or contempt of  the  House  had
been committed.

51)   Successive  Speakers  have,  however,  held  that  an  assault  on  or
misbehaviour with a member unconnected with his parliamentary work  or  mere
discourtesy by the police officers are not matters  of  privilege  and  such
complaints should be referred by members to the Ministers directly.

52)   45th Report of the Committee of Privileges of the  Rajya  Sabha  dated
30th November, 2000 stated as under:

      “6.  The issue for examination before the Committee  is  whether  CRPF
      personnel posted at Raj  Bhawan  in  Chennai  committed  a  breach  of
      privilege available to Members of Parliament by preventing Shri  Muthu
      Mani from meeting the Governor in connection with  presentation  of  a
      memorandum.

      7.    The Committee notes that privileges are available to  Member  of
      Parliament so that they can perform their parliamentary duties without
      let or hindrance.  Shri Muthu  Mani  had  gone  to  the  residence  of
      Governor for presentation of a memorandum  in  connection  with  party
      activities.  Before Shri Muthu Mani reached there, two delegations  of
      his party had been allowed to meet the Governor.  It appears that  due
      to security  related  administrative  reasons  the  entry  of  another
      delegation of which Shri Muthu Mani was a Member, was  denied  by  the
      Police officers.  Since Shri Muthu Mani was present in connection with
      the programme of his political  party,  apparently  along  with  other
      party workers, it cannot be said that he was in any way  performing  a
      parliamentary duty.  As such preventing  his  entry  by  lawful  means
      cannot  be  deemed  to  constitute  a  breach  of  his   parliamentary
      privilege.”

53)   Now, with regard to the contention of Mr. Venugopal, viz.,  about  the
privileges available to the Assembly and its Members, in case of  arrest  of
employees of the Legislature Secretariat within the precincts of the  House,
the Speaker of the Kerala Legislative Assembly, disallowing the question  of
privilege,  ruled  that  the  prohibition  against  making  arrest,  without
obtaining the permission of the Speaker, from the precincts of the House  is
applicable only to the members of the Assembly.  He observed that it is  not
possible, nor is it desirable to extend  this  privilege  to  persons  other
than the members, since it would have  the  effect  of  putting  unnecessary
restrictions and impediments in the due process of law.

54)   The officers working under the office of the Speaker are  also  public
servants within the meaning of Section 2(g) of the Lokayukt Act  and  within
the meaning of Section 2 (c) of the Prevention of Corruption Act, 1988  and,
therefore, the Lokayukt and his officers are  entitled  and  duty  bound  to
make inquiry and investigation into the allegations made  in  any  complaint
filed before them.

55)   The law applies equally and there  is  no  privilege  which  prohibits
action of registration of a case by an authority that has been empowered  by
the legislature to investigate the cases relating to  corruption  and  bring
the offenders to book.  Simply because the officers happen to belong to  the
office of the Hon’ble Speaker of the Legislative  Assembly,  the  provisions
of the Lokayukt Act do not cease to apply to them.  The law  does  not  make
any differentiation and applies to all with  equal  vigour.   As  such,  the
initiation of action does not and cannot amount to a breach of privilege  of
the Legislative Assembly, which has itself conferred powers in the  form  of
a statute to eradicate the menace of corruption.  It is, thus,  clear  that,
no privilege is available to the Legislative Assembly to  give  immunity  to
them against the operation of laws.

56)   In the present matter, the petitioners have not made any inquiry  even
against the members of the Legislative Assembly  or  the  Speaker  or  about
their conduct and, therefore, the complaints made  against  the  petitioners
by some of the members of the Legislative Assembly were completely  uncalled
for, illegal and unconstitutional.   The  Speaker  has  no  jurisdiction  to
entertain any such complaint, which is not even maintainable.

57)   Thus, it  is  amply  clear  that  the  Assembly  does  not  enjoy  any
privilege of a nature that may have the effect of  restraining  any  inquiry
or investigation against the  Secretary  or  the  Deputy  Secretary  of  the
Legislative Assembly.

58)   Thus, from the above, it is  clear  that  neither  did  the  House  of
Commons enjoy any  privilege,  at  the  time  of  the  commencement  of  the
Constitution, of a nature that  may  have  the  effect  of  restraining  any
inquiry or investigation against the Secretary or the  Deputy  Secretary  of
the Legislative Assembly or for  that  matter  against  the  member  of  the
Legislative Assembly or a minister in the executive government nor does  the
Parliament or the Legislative Assembly of the State  or  its  members.   The
laws apply equally and there is  no  privilege  which  prohibits  action  of
registration of a case by an authority  which  has  been  empowered  by  the
legislature to investigate the cases.  Simply because  the  officers  belong
to the office of the  Hon’ble  Speaker  of  the  Legislative  Assembly,  the
provisions of the Act do not cease to apply to them.  The law does not  make
any differentiation and applies to all with  equal  vigour.   As  such,  the
initiation of action does not and cannot amount to a breach of privilege  of
the Legislative Assembly, which has itself conferred powers in the  form  of
a Statute to eradicate the menace of corruption.

59)   The petitioners cannot, while acting under the said statute,  be  said
to have lowered the dignity of the very Assembly  which  has  conferred  the
power upon the petitioners.  The authority to act has  been  conferred  upon
the petitioners under the  Act  by  the  Legislative  Assembly  itself  and,
therefore, the action taken by the petitioners under  the  said  Act  cannot
constitute a breach of privilege of that Legislative Assembly.

60)    By  carrying  out  investigation  on  a   complaint   received,   the
petitioners merely performed their statutory duty and did  not  in  any  way
affect the privileges which were being  enjoyed  by  the  Assembly  and  its
members.  The action of the petitioners did not interfere in the working  of
the House and as such there are no grounds for  issuing  a  notice  for  the
breach of Privilege of the Legislative Assembly.

61)   Also, in terms of the provisions of  Section  11(2)  of  the  Lokayukt
Act, any proceeding before the Lokayukt shall be deemed  to  be  a  judicial
proceeding within the meaning of Sections 193 and 228 of  the  Indian  Penal
Code and as per Section 11(3), the Lokayukt is deemed to be a  court  within
the meaning of Contempt of Courts Act, 1971.  The  petitioners  have  merely
made inquiry within the scope of the provisions of  the  Act  and  have  not
done anything against the Speaker personally.  The  officers  working  under
the office of the Speaker are also public servants  within  the  meaning  of
Section 2(g) of the Lokayukt  Act  and,  therefore,  the  Lokayukt  and  his
officers were entitled  and  duty  bound  to  carry  out  investigation  and
inquiry into the allegations made in the complaint  filed  before  them  and
merely because the petitioners, after  scrutinizing  the  relevant  records,
found the allegations prima facie proved, justifying detailed  investigation
by the Special Police Establishment under the Prevention of Corruption  Act,
and the performance of duty by the petitioners in no way affects any of  the
privileges even remotely enjoyed by the Assembly or its Members.

62)   In the present matter, the  petitioners  have  not  made  any  inquiry
against any member of the Legislative  Assembly  or  the  Speaker  or  about
their conduct and, therefore, the complaints made  against  the  petitioners
by some of the members of  Legislative  Assembly  were  completely  uncalled
for, illegal and unconstitutional.

63)   Further, the  allegations  made  in  the  complaint  show  that  while
dealing with the first complaint (E.R.  127/05),  the  Lokayukt  found  that
there was no material to proceed further and closed that  matter  since  the
allegations alleged were not established.  While inquiring into  the  second
complaint since  the  Lokayukt  found  that  the  allegations  made  in  the
complaint were prima facie proved, SPE was directed to  proceed  further  in
accordance with law.

64)   On behalf of the petitioners, it is pointed out  that  the  facts  and
circumstances in the present matter show that complaints have been filed  by
the Members not in their  interest  but  for  the  benefit  of  the  persons
involved who all are public servants.  It  is  also  pointed  out  that  the
action of breach of privilege has been instituted  against  the  petitioners
since the officers,  against  whom  the  investigation  has  been  launched,
belong to the Vidhan Sabha Secretariat.

65)   We are  of  the  view  that  the  action  being  investigated  by  the
petitioners has nothing to do with the proceedings of the House and as  such
the said action cannot constitute any breach of privilege of  the  House  or
its members.

66)   It is made clear that privileges are available only  insofar  as  they
are necessary in order that House may freely  perform  its  functions.   For
the application of laws, particularly, the provisions of the  Lokayukt  Act,
and the  Prevention  of  Corruption  Act,  1988,  the  jurisdiction  of  the
Lokayukt or the Madhya Pradesh  Special  Police  Establishment  is  for  all
public servants (except the Speaker and the Deputy  Speaker  of  the  Madhya
Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no  privilege
is available to the officials and,  in  any  case,  they  cannot  claim  any
privilege more than an ordinary citizen to whom the provisions of  the  said
Acts apply.  Privileges do not extend to the activities  undertaken  outside
the House on which  the  legislative  provisions  would  apply  without  any
differentiation.

67)   In the present case, the action taken by  the  petitioners  is  within
the powers conferred under the above statutes  and,  therefore,  the  action
taken by the petitioners is legal.  Further, initiation of action for  which
the petitioners are legally  empowered,  cannot  constitute  breach  of  any
privilege.

68)   Under the provisions of Section 39(1)(iii) of  the  Code  of  Criminal
Procedure, 1973, every person who is aware of the commission of  an  offence
under  the  Prevention  of   Corruption  Act  is  duty  bound  to  give   an
information available with  him  to  the  police.   In  other  words,  every
citizen who has knowledge of the commission of a cognizable  offence  has  a
duty to lay  information  before  the  police  and  to  cooperate  with  the
investigating officer who is enjoined to collect the evidence.

69)   In the light of the above  discussion  and  conclusion,  the  impugned
letters/notices are quashed and the writ petition is allowed as prayed  for.
 No order as to costs.




                                  ……….…………………………CJI.


                                       (P. SATHASIVAM)
































                                    ………….…………………………J.


                                      (RANJAN GOGOI)







                                  ………….…………………………J.


                                      (SHIVA KIRTI SINGH)



NEW DELHI;
FEBRUARY 25, 2014.
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