LAW FOR ALL : declining to grant permission to the Public Prosecutor to withdraw the prosecution of the first to sixth respondents under Section 321 of the CrPC.

Thursday, July 29, 2021

declining to grant permission to the Public Prosecutor to withdraw the prosecution of the first to sixth respondents under Section 321 of the CrPC.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 697 of 2021

@ SLP (Crl) No 4009 of 2021

The State of Kerala .... Petitioner

Versus

K. Ajith & Ors. ....Respondents

And With

Criminal Appeal No 698 of 2021

@SLP (Crl) No 4481 of 2021

J U D G M E N T

Dr Dhananjaya Y Chandrachud, J

This judgment has been divided into the following sections to facilitate analysis:

A Factual Background

B Submissions of Parties

C Issues and Analysis

C.1 Withdrawal of prosecution

C.2 Immunities and Privileges of MLAs

C.2.1 Position in the United Kingdom

C.2.2 Position in India

C.3 Privilege to commit acts of public destruction – An incongruous

proposition

C.4 Sanction of Speaker

C.5 Claiming privilege and inadmissibility of video recordings as

evidence

C.5.1 Immunity from publication of proceedings of the House

C.5.2 Inadmissibility of the video recording as evidence

PART A

A Factual Background

1 Leave granted.

2 The appeals arise out of a judgment of a Single Judge of the High Court of

Kerala dated 12 March 2021. The High Court in the exercise of its revisional

jurisdiction under Section 397 of the Code of Criminal Procedure, 19731 upheld

the order of the Chief Judicial Magistrate2

, Thiruvananthapuram declining to grant

permission to the Public Prosecutor to withdraw the prosecution of the first to

sixth respondents under Section 321 of the CrPC.

3 On 13 March 2015, the then Finance Minister was presenting the budget

for the financial year 2015-2016 in the Kerala Legislative Assembly. The

respondent-accused3

, who at the time were Members of the Legislative

Assembly4 belonging to the party in opposition, disrupted the presentation of the

budget, climbed over to the Speaker’s dais and damaged furniture and articles

including the Speaker’s chair, computer, mike, emergency lamp and electronic

panel, causing a loss of Rs. 2,20,093/-. The incident was reported to the Museum

Police Station by the Legislative Secretary. Crime No. 236 of 2015 was registered

under Sections 447 and 427 read with Section 34 of the Indian Penal Code 18605

and Section 3(1) of the Prevention of Damage to Public Property Act 1984. On

the completion of the investigation, the final report under Section 173 of the CrPC

1 “CrPC” 2 “CJM” 3 The term “respondent-accused” refers to Respondent Nos 1 to 6 in SLP (Crl) No 4009 of 2021 and the

petitioners in SLP (Crl) No 4481 of 2021.

4 “MLA” 5 “IPC”

PART A

was submitted and cognizance was taken by the Additional CJM, Ernakulam of

the said offences6

4 On 21 July 2018, an application7 was filed by the Assistant Public

Prosecutor under Section 321 of the CrPC seeking sanction to withdraw the case

against all the respondent-accused. The Prosecutor gave the following reasons

for withdrawing the prosecution:

(i) Immunities and privileges: The events transpired during a session of the

Legislative Assembly when certain MLAs protested against the budget

presentation. The ‘protest’ by the MLAs is protected by the immunities and

privileges under Article 194(3) of the Constitution of India;

(ii) Breach of privilege: A violation of the rights and immunities granted to

MLAs is a breach of privilege and the Legislative Assembly is empowered

to punish such actions which are offences against its authority and of

disobedience of its legitimate commands. A breach of privilege is a

contempt of the House, which falls under the exclusive jurisdiction of the

Speaker of the Assembly;

(iii) Sanction of the Speaker: An offence which is committed in the Assembly,

during a session or in its vicinity by MLAs, cannot be registered by the

police without the permission of the Speaker. Police officers require

authorization from the ‘competent authority’ to investigate a breach of law

if it occurs in the precincts of the Legislative Assembly;

(iv) Public Interest: The freedoms granted to MLAs are necessary for the

functioning of democracy and are subject to the powers of the Speaker or

6 C.C No. 151 of 2018.

7 Crl. MP 2577 of 2019.

PART A

the criminal courts with the sanction of the Speaker. The continuance of

the trial of the MLAs absent the sanction of the Speaker lowers the dignity

of the Assembly amongst citizens, thereby affecting public interest;

(v) Absence of mens rea: According to the charge sheet, the incident

occurred during a protest by the party in opposition against the

presentation of the budget. Thus, it is difficult to assess the ‘reus’ of the

offence;

(vi) Lack of evidence: The statements of witnesses under Section 161 of the

CrPC are vague and there is an absence of proper identification of the

persons involved and their participation in the commission of the alleged

offence. The Investigating Officer has failed to record the statement of

natural eye witnesses, that is, the MLAs who were present in the

Assembly Hall, despite the permission of the Speaker. Although this casts

a doubt on the nature of the investigation conducted, it nonetheless

indicates that the prosecution has a remote chance to prove its case;

(vii) A copy of the video recording of the incident was procured from the

Electronic Control Room of the Legislative Assembly, without the sanction

of the Speaker. The video footage lacks certification under Section 65B of

the Indian Evidence Act 1872 and the admissibility of this evidence would

be under challenge in the trial; and

(viii) The Government of Kerala, which owned the property that was destroyed,

had by an order dated 9 February 2018 consented to the withdrawal of the

prosecution and hence, the ‘larger public interest’ would be served if the

case is withdrawn early.

PART A

5 The case was transferred to the court of the CJM, Thiruvananthapuram8

By an order dated 22 September 2020, the CJM declined to give consent to the

application of the Prosecutor for the following reasons:

(i) Immunity can be claimed by MLAs only in exercise of free speech and

voting as held by this Court in P.V. Narasimha Rao vs State (CBI/SPE)

etc9

. The alleged offence committed by the respondent-accused did not

have any nexus with their speech or vote;

(ii) The case against the MLAs was registered at the instance of the Secretary

of the Legislative Assembly and thus, it can be assumed that this was

within the knowledge of the Speaker of the Assembly. Accordingly, the

argument that the case was registered without the permission of the

Speaker does not hold ground;

(iii) Although the Government of Kerala had consented to the withdrawal of the

prosecution, it is erroneous to suggest that the loss of public property is a

loss accruing to the Government. Damage to public property causes a loss

to the public exchequer. The alleged offences are of a serious nature; and

(iv) The role of the court under Section 321 is to assess whether the

application is made in good faith, in the interests of justice and public

policy, and not to stifle the process of law. The application of the

Prosecutor fails to inform the court how the withdrawal of prosecution in

this case would achieve these objectives. Thus, it is presumed that the

application is filed without good faith and is based on external influence.

8 C.C No. 73 of 2019.

9 AIR 1998 SC 2120.

PART A

6 The State of Kerala filed a criminal revision petition10 before the High

Court. The High Court, by its order dated 12 March 2021 dismissed the petition

and affirmed the order of the CJM. In doing so, the High Court rejected the

argument of the State that prosecuting the MLAs will lower the prestige of the

Assembly, and thereby impact public interest. The High Court observed that:

(i) The conduct of the MLAs cannot be deemed to be in furtherance of the

functioning of a free democracy, and does not warrant the invocation of the

immunities and privileges granted to MLAs;

(ii) There is no provision, either in the Constitution, or in the Rules of

Procedure and Conduct of Business in the Kerala Assembly, made

pursuant to Article 208(1) of the Constitution, that mandated the police to

seek permission or sanction of the Speaker before registering a crime

against the MLAs; and

(iii) Insofar as the prosecution raised arguments regarding inadequacy of

evidence for successful conviction of the respondent-accused, the

judgment of this Court in Sheonandan Paswan vs State of Bihar &

Ors.11 indicates that such arguments must be raised by the respondentaccused while seeking a discharge before the Magistrate.

7 While dismissing the petition, the High Court observed that the application

under Section 321 of the CrPC had been rejected by the CJM for valid reasons.

However, the High Court did not find any “justification for the presumption in the

order that the petition was filed without good faith and on extraneous influence”

10 Crl. Rev. Pet. No. 641 of 2020. 11 (1987) 1 SCC 288.

PART B

8 The State of Kerala and the respondent-accused have filed independent

SLPs against the order of the High Court before this Court.

B Submissions of Parties

9 Mr Ranjit Kumar, Senior counsel appearing on behalf of the State of Kerala

made the following submissions in support of the appeals:

(i) The power of the Public Prosecutor to withdraw from the prosecution for

one or more offences of which the accused is tried can be exercised in

furtherance of public justice – social, economic, and political as held in

Rajendra Kuman Jain vs State through Special Police Establishment

& Ors.12. The offence that the respondents are accused of committing

occurred during the presentation of the State budget, in the premises of the

Legislative Assembly. Their actions are manifestations of effective political

participation, and are in furtherance of a political purpose which is a valid

ground for withdrawal of the prosecution in view of the above decision;

(ii) The court granting permission for withdrawal from prosecution performs a

supervisory and not an adjudicatory function. It must not take it upon itself

the burden to review the reasons advanced by the Public Prosecutor but

must only determine if the Public Prosecutor has applied the mind as a

“free agent, uninfluenced by irrelevant and extraneous considerations”;

(iii) The High Court while deciding the revision against the order of the CJM

has erroneously relied on the dissent of Chief Justice Bhagwati in

Sheonandan Paswan (supra). The majority opinion in Sheonandan

Paswan (supra) was authored by Justice Khalid for himself and Justice

12 (1980) 3 SCC 435.

PART B

Natarajan, while Justice Venkataramiah authored a separate but

concurring judgment;

(iv) The incident in relation to which the complaint was filed, took place on the

floor of the Kerala Legislative Assembly during the presentation of the

budget by the Finance Minister. Since the incident happened inside the

House, prosecution cannot be initiated without the sanction of the Speaker,

who is the presiding officer of the Legislative Assembly. The dictum in P.V.

Narasimha (supra) that the sanction of the Speaker of the House is

required for the registration of an offence against any MLA is not restricted

to offences under the Prevention of Corruption Act, 1988;

(v) The genesis of the incident lies in a political protest inside the House.

Certain women MLAs had been physically assaulted leading to an FIR

being registered. There was a protest against the Finance Minister during

the presentation of the budget and the incident was a manifestation of that

protest. In this backdrop a decision was taken to bring a quietus to the

incident, and the Government considered it appropriate to advise the

Public Prosecutor to withdraw the prosecution;

(vi) The actions of the respondent-accused are a manifestation of their right to

protest which is a facet of the freedom of speech and expression. Article

194 of the Constitution provides that no proceedings shall be initiated in

the court for the exercise of the freedom of speech by MLAs inside the

precincts of the Legislative Assembly. Moreover, these actions took place

during the course of the budget presentation and bear a close nexus to the

right to vote which is protected under Article 194. Further, the video of the

PART B

incident of 13 March 2015 that was procured from the Electronic Control

Room is a publication of the proceedings of the House. Under Article

194(2), no member shall be held liable in respect of publication of any

proceedings inside the House; and

(vii) The High Court despite finding that no mala fides can be attributed to the

petition for withdrawal initiated by the Public Prosecutor, upheld the order

of the CJM declining consent for the withdrawal. By doing so, the High

Court has exercised an adjudicatory function, reviewing the grounds

provided by the Public Prosecutor as opposed to the established principles

laid down in Rajendra Kumar Jain (supra) and Sheonandan Paswan

(supra) where it has been held that the court can only exercise a

supervisory jurisdiction.

10 Mr Jaideep Gupta, learned Senior counsel appearing on behalf of the

respondent-accused and in support of the appeal in the companion case, urged

that:

(i) There is a clear difference in the approach of the majority and the minority

judgments in Sheonandan Paswan (supra). The judgments of the

majority require the court to determine whether the Public Prosecutor has

improperly exercised their powers, interfered with the normal course of

justice or exercised powers for illegitimate purposes. The minority cuts

down the scope of Section 321 by imposing conditions which are not

accepted by the majority opinions. While the majority focusses on the

function of the Public Prosecutor, the minority dwelt on the purity of the

administration of justice;

PART B

(ii) Since the CJM did not apply the correct principles, the High Court in the

exercise of its revisional jurisdiction under Section 397 of the CrPC ought

to have intervened to correct the decision; and

(iii) The real test is whether the decision of the Public prosecutor will destroy

the administration of justice. This has to be answered in the negative and

hence the application for withdrawal ought to be allowed.

11 On the other hand, Mr Mahesh Jethmalani and Mr V. Chitambaresh,

Senior counsel, and Mr Ramesh Babu, Advocate-On-Record, appearing on

behalf of Respondent Nos 7 and 813, opposed the stand of the appellants and the

respondent-accused, urging that:

(i) The exercise of the freedom of speech by the MLAs inside the House does

not embrace within it the right to destroy property. The privileges under

Article 194 cannot be used as a cover for violent actions of members in

the precincts of the legislative assembly;

(ii) The decision of this court in Lokayukta, Justice Ripusudan Dayal

(Retired) and Ors. vs State of Madhya Pradesh & Ors.14 holds that a

privilege can only be provided to the extent required so as to allow the

members to perform their functions without hindrance. A claim of privilege

cannot be used as a shield to circumvent the application of criminal law

since no person enjoys a privilege against criminal prosecution;

(iii) The observation in P.V Narasimha Rao (supra) on the mandatory prior

sanction of the Speaker was only made with specific reference to Section

13 Respondent Nos 7 and 8 were impleaded as parties before the High Court of Kerala by order dated 12 March

2021 in Crl. M. Appl. 3 of 2021 and Crl. M. Appl. 4 of 2021, respectively. 14 (2014) 4 SCC 473.

PART B

19 of Prevention of Corruption Act, 1988.15 Section 19 provides that for the

prosecution of a public servant for offences under the Act, the sanction of

the authority competent to remove the said person is required. Since no

such authority is specified for MPs, three judges in P.V Narasimha Rao

(supra) held that until Parliament so specifies, the Speaker would be

competent to grant a sanction to prosecute under Section 19. The

observation cannot be construed to have a general application to mean

that the previous sanction of the Speaker is required to prosecute the

members of the House for any offence, other than under the Prevention of

Corruption Act, 1988;

(iv) Section 197 of CrPC16 is not applicable to MLAs since they cannot be

removed from office by or with the sanction of the Government, which is a

pre-requisite for the application of the provision. Even otherwise, the

sanction under Section 197 of the CrPC is not required at the initial stage

of commencing prosecution but only at a later stage after cognizance is

taken;

(v) The High Court has incorrectly relied on the minority opinion authored by

Justice Bhagwati in Sheonandan Paswan (supra). However, both Justice

15 “19. Previous sanction necessary for prosecution.- (1) No court shall take cognizance of an offence punishable

under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous

sanction,—

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from

his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from

his office save by or with the sanction of the State Government, of that Government;

16 “197. Prosecution of Judges and public servants: (1) When any person who is or was a Judge or Magistrate or

a public servant not removable from his office save by or with the sanction of the Government is accused of any

offence alleged to have been committed by him while acting or purporting to act in the discharge of his official

duty, no Court shall take cognizance of such offence except with the previous sanction […]”.

PART C

Khalid in his majority opinion, and Justice Venkataramiah in his concurring

opinion held that this Court must restrain itself from interfering with the

concurrent findings of the lower courts, either accepting or rejecting the

withdrawal petition filed by the Public Prosecutor. Since the CJM dismissed

the withdrawal petition in the present case and the High Court dismissed

the revision petition against the order of the CJM, this Court must refrain

from interfering with the concurrent findings of the courts below under

Article 136 of the Constitution; and

(vi) In the present case this court must be guided by: (a) the concurrent

findings on the illegality of the application for withdrawal; (b) the overriding

aspect of public interest; and (c) the object of the law. The provisions of the

legislation enacted by Parliament for prosecuting damage to public

property make its intent clear. Section 3 of the Prevention of Damage to

Public Property Act 1984 provides a minimum sentence of six months and

Section 5 has adopted a special provision on bail, whereby it is necessary

to give prosecution an opportunity to oppose the application for bail. These

provisions are similar to provisions for bail in the Narcotics Drugs and

Psychotropic Substance Act, 1951, which indicate the intention of the

Parliament to consider damage to public property as a grave offence.

C Issues and Analysis

12 Having adverted to the submissions of the parties, we shall now turn to the

issues raised before this Court. The question before this Court is centred on the

exercise of power by the Public Prosecutor under Section 321 and the exercise of

PART C

jurisdiction by the CJM. Before assessing the submissions of the parties, we find

it necessary to discuss the position of the law on this point.

C.1 Withdrawal of prosecution

13 Section 321 of the CrPC reads as follows:

“321. Withdrawal from prosecution. The Public Prosecutor or

Assistant Public Prosecutor in charge of a case may, with the

consent of the Court, at any time before the judgment is

pronounced, withdraw from the prosecution of any person

either generally or in respect of any one or more of the

offences for which he is tried; and, upon such withdrawal,-

(a) if it is made before a charge has been framed, the

accused shall be discharged in respect of such offence or

offences;

(b) if it is made after a charge has been framed, or when

under this Code no charge is required, he shall be acquitted in

respect of such offence or offences:

Provided that where such offence-

(i) was against any law relating to a matter to which the

executive power of the Union extends, or

(ii) was investigated by the Delhi Special Police Establishment

under the Delhi Special Police Establishment Act, 1946 (25 of

1946 ), or

(iii) involved the misappropriation or destruction of, or damage

to, any property belonging to the Central Government, or

(iv) was committed by a person in the service of the Central

Government while acting or purporting to act in the discharge

of his official duty, and the Prosecutor in charge of the case

has not been appointed by the Central Government, he shall

not, unless he has been permitted by the Central Government

to do so, move the Court for its consent to withdraw from the

prosecution and the Court shall, before according consent,

direct the Prosecutor to produce before it the permission

granted by the Central Government to withdraw from the

prosecution.”

PART C

14 The powers under Section 321 of the CrPC have been interpreted by this

Court on a number of occasions. In State of Bihar vs Ram Naresh Pandey &

Anr.17, a three-judge Bench of this Court analysed Section 494 of the earlier

Code of Criminal Procedure 1898 (similar to Section 321 of the CrPC). Justice B.

Jagannadhadas observed that in granting consent to withdraw a prosecution, the

court exercises a judicial function. However, in doing so, the court need not

determine the matter judicially. The court only needs to be satisfied that “the

executive function of the Public Prosecutor has not been improperly exercised, or

that it is not an attempt to interfere with the normal course of justice for

illegitimate reasons or purposes”. This Court also observed that the Magistrate’s

power under Section 494 was to prevent abuse of power of the executive.

Addressing the question of whether insufficiency of evidence is a ground for

withdrawal of prosecution, the Court held that :

“9. […] we find it difficult to appreciate why the opinion arrived

at by both the trial court and the Sessions Court that the view

taken of that material by the Public Prosecutor viz. that it was

meagre evidence on which no conviction could be asked for,

should be said to be so improper that the consent of the Court

under Section 494 of the Code of Criminal Procedure has to be

withheld. Even the private complainant who was allowed to

participate in these proceedings in all its stages, does not, in his

objection petition, or revision petitions, indicate the availability of

any other material or better material. Nor, could the complainant's

counsel, in the course of arguments before us inform us that there

was any additional material available. In the situation, therefore,

excepting for the view that no order to withdraw should be passed

in such cases either as a matter of law or as a matter of propriety

but that the matter should [b]e disposed of only after the evidence is

judicially taken, we apprehend that the learned Chief Justice himself

would not have felt called upon to interfere with the order of the

Magistrate in the exercise of his revisional jurisdiction.”

(emphasis supplied)

17 AIR 1957 SC 389.

PART C

15 In M.N Sankarayaraynan Nair vs P.V Balakrishnan18, this Court held

that the powers conferred on the Prosecutor under Section 494 of the Code of

Criminal Procedure 1898 are to be exercised in “furtherance of the object of law”.

On the power of the court to grant consent, Justice P. Jaganmohan Reddy

observed that

“8. […] The Court also while considering the request to grant

permission under the said section should not do so as a necessary

formality — the grant of it for the mere asking. It may do so only if

it is satisfied on the materials placed before it that the grant of

it subserves the administration of justice and that permission

was not being sought covertly with an ulterior purpose

unconnected with the vindication of the law which the

executive organs are in duty bound to further and maintain.”

(emphasis supplied)

16 In Rajender Kumar Jain vs State through Special Police

Establishment and Ors.19, there was an application for the withdrawal of the

prosecution against Mr George Fernandes, Chairperson of the Socialist Party of

India. Mr Fernandes had been accused of rousing resistance against the

Emergency imposed in 1975 and of participating in a conspiracy to do acts which

may have resulted in the destruction of property. After the Emergency was

revoked, the Special Public Prosecutor filed an application under Section 321 of

the CrPC ‘in view of the changed circumstances and public interest’. Given the

political background of the dispute, a two judge bench of this Court, speaking

through Justice O. Chinnappa Reddy highlighted the importance of the

independence of the Public Prosecutor in exercising the power under Section 321

18 (1972) 1 SCC 318. 19 (1980) 3 SCC 435.

PART C

of the CrPC. In the context of a withdrawal of prosecution where matters of

public policy are involved, the Court held that:

“16. In the past, we have often known how expedient and

necessary it is in the public interest for the public prosecutor to

withdraw from prosecutions arising out of mass agitations,

communal riots, regional disputes, industrial conflicts, student

unrest etc. Wherever issues involve the emotions and there is

a surcharge of violence in the atmosphere it has often been

found necessary to withdraw from prosecutions in order to

restore peace, to free the atmosphere from the surcharge of

violence, to bring about a peaceful settlement of issues and to

preserve the calm which may follow the storm. To persist with

prosecutions where emotive issues are involved in the name of

vindicating the law may even be utterly counter-productive. An

elected Government, sensitive and responsive to the feelings and

emotions of the people, will be amply justified if for the purpose of

creating an atmosphere of goodwill or for the purpose of not

disturbing a calm which has descended it decides not to prosecute

the offenders involved or not to proceed further with prosecution

already launched. In such matters who but the Government can

and should decide, in the first instance, whether it should be

baneful or beneficial to launch or continue prosecutions. If the

Government decides that it would be in the public interest to

withdraw from prosecutions, how is the Government to go about

this task?

17. Under the Code of Criminal Procedure it is the Public

Prosecutor that has to withdraw from the prosecution and it is the

court that has to give its consent to such withdrawal. […] it is he

that is entrusted with the task of initiating the proceeding for

withdrawal from the prosecution. But, where such large and

sensitive issues of public policy are involved, he must, if he is

right-minded, seek advice and guidance from the policymakers. His sources of information and resources are of a very

limited nature unlike those of the policy-makers. If the policymakers themselves move in the matter in the first instance, as

indeed it is proper that they should where matters of

momentous public policy are involved, and if they advise the

Public Prosecutor to withdraw from the prosecution, it is not

for the court to say that the initiative comes from the

Government and therefore the Public Prosecutor cannot be

said to have exercised a free mind. Nor can there be any

quibbling over words. If ill informed but well meaning bureaucrats

choose to use expressions like “the Public Prosecutor is directed”

or “the Public Prosecutor is instructed”, the court will not on that

ground alone stultify the larger issue of public policy by refusing its

consent on the ground that the Public Prosecutor did not act as a

PART C

free agent when he sought withdrawal from the prosecution. What

is at stake is not the language of the letter or the prestige of the

Public Prosecutor but a wider question of policy. The court, in

such a situation is to make an effort to elicit the reasons for

withdrawal and satisfy itself, that the Public Prosecutor too

was satisfied that he should withdraw from the prosecution

for good and relevant reasons.”

Thus the fact that the withdrawal was initiated by the government was held not to

vitiate the application, so long as the Public Prosecutor had independently applied his

mind. Elaborating on the scope of withdrawal on the ground of public justice, and in

particular the ambit of the expression ‘political offence’, the Court held:

“19.[…] For our present purpose it is really unnecessary for us to

enter into a discussion as to what are political offences except in a

sketchy way. It is sufficient to say that politics are about

Government and therefore, a political offence is one

committed with the object of changing the Government of a

State or inducing it to change its policy. Mahatma Gandhi, the

father of the Nation, was convicted and jailed for offences against

the municipal laws; so was his spiritual son and the first Prime

Minister of our country.

[…]

21. To say that an offence is of a political character is not to

absolve the offender of the offence. But the question is, is it a valid

ground for the Government to advise the Public Prosecutor to

withdraw from the prosecution? We mentioned earlier that the

Public Prosecutor may withdraw from the prosecution of a

case not merely on the ground of paucity of evidence but also

in order to further the broad ends of public justice and that

such broad ends of public justice may well include

appropriate social, economic and political purposes. It is now

a matter of history that the motivating force of the party which was

formed to fight the elections in 1977 was the same as the

motivating force of the criminal conspiracy as alleged in the order

sanctioning the prosecution; only the means were different. The

party which came to power as a result of 1977 elections chose to

interpret the result of the elections as a mandate of the people

against the politics and the policy of the party led by Shrimati

Gandhi. Subsequent events leading up to the 1980 elections which

reversed the result of the 1977 elections may cast a doubt whether

such interpretation was correct; only history can tell. But, if the

Government of the day interpreted the result of the 1977 elections

as a mandate of the people and on the basis of that interpretation

PART C

the Government advised the Public Pr[o]secutor to withdraw from

the prosecution, one cannot say that the Public Prosecutor was

activated by any improper motive in withdrawing from the

prosecution nor can one say that the Magistrate failed to exercise

the supervisory function vested in him in giving his consent.”

(emphasis supplied)

17 The locus classicus on the interpretation of the powers conferred by

Section 321 of the CrPC is the decision of the Constitution Bench in

Sheonandan Paswan (supra). In this case, the Board of Directors of the Patna

Urban Cooperative Bank was charged with misdemeanours such as

misappropriation of the funds of the bank by giving multiple loans to the same

person under different names and approving loans for fictitious persons. The

Registrar of Cooperative Societies at the instance of the Reserve Bank of India

directed legal action to be initiated against the stakeholders. On investigation,

statements were made against Dr Jagannath Mishra, the ex-Chief Minister of

Bihar, and it was alleged that he misused his office and made illegal personal

gains for himself while holding office of the Chief Minister. A charge sheet was

filed and the CJM took cognizance of the matter. However, before the case could

progress further, Dr Mishra once again took oath as the Chief Minister of Bihar

and a communication was issued by the Government that it had decided to

withdraw the case. A withdrawal application was filed by the Public Prosecutor on

grounds of lack of evidence, implication due to political vendetta, and that the

prosecution would be against public policy and public interest. The CJM gave

consent for the withdrawal, and the High Court affirmed the order of the CJM.

18 When the matter came up before this Court, the appeal was dismissed by

a 2:1 majority. A review petition was allowed, and the scope of Section 321 of the

PART C

CrPC was addressed by a Constitution Bench. Chief Justice Bhagwati in his

minority opinion held that in a case where a withdrawal petition has been filed on

the ground of paucity of evidence, after the charge sheet has been filed but

before the charge has been framed in a warrant case, the exercise of power by

the court granting consent is similar to the power of the court to discharge the

accused under Section 239 of the CrPC20. Hence, in such cases, it would not be

competent for the public prosecutor to file a withdrawal petition unless there is

material change in the evidence. The Chief Justice was of the opinion that the

court must take up the exercise of discharge in such cases since it would carry

greater conviction with the people. He observed:

“30. The second qualification[..] What the court, therefore, does

while exercising its function under Section 239 is to consider the

police report and the document sent along with it as also any

statement made by the accused if the court chooses to examine

him. And if the court finds that there is no prima facie case against

the accused the court discharges him. But that is precisely what

the court is called upon to do when an application for withdrawal

from the prosecution is made by the Public Prosecutor on the

ground that there is insufficient or no evidence to support the

prosecution. There also the court would have to consider the

material placed before it on behalf of the prosecution for the

purpose of deciding whether the ground urged by the Public

Prosecutor for withdrawal of the prosecution is justified or not and

this material would be the same as the material before the court

while discharging its function under Section 239. If the court while

considering an application for withdrawal on the ground of

insufficiency or absence of evidence to support the

prosecution has to scrutinise the material for the purpose of

deciding whether there is in fact insufficient evidence or no

evidence at all in support of the prosecution, the court might

as well engage itself in this exercise while considering under

Section 239 whether the accused shall be discharged or a

charge shall be framed against him. It is an identical exercise

which the court will be performing whether the court acts

20 “Section 239: When accused shall be discharged: If, upon considering the police report and the documents

sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks

necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate

considers the charge against the accused to be groundless, he shall discharge the accused, and record his

reasons for so doing.”

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under Section 239 or under Section 321. If that be so, we do

not think that in a warrant case instituted on a police report

the Public Prosecutor should be entitled to make an

application for withdrawal from the prosecution on the ground

that there is insufficient or no evidence in support of the

prosecution. ”

(emphasis supplied)

19 Justice Khalid (speaking for himself and Justice Natarajan) rendered the

majority opinion holding that the power of the court to grant consent for a

withdrawal petition is similar to the power under Section 320 of the CrPC to

compound offences. The court in both the cases will not have to enquire into the

issue of conviction or acquittal of the accused person, and will only need to

restrict itself to providing consent through the exercise of jurisdiction in a

supervisory manner. It was held that though Section 321 does not provide any

grounds for seeking withdrawal, “public policy, interest of administration,

inexpediency to proceed with the prosecution for reasons of State, and paucity of

evidence” are considered valid grounds for seeking withdrawal. Further, it was

held that the court in deciding to grant consent to the withdrawal petition must

restrict itself to only determining if the Prosecutor has exercised the power for

the above legitimate reasons:

“73 […]When an application under Section 321 CrPC is made, it is

not necessary for the court to assess the evidence to discover

whether the case would end in conviction or acquittal. To contend

that the court when it exercises its limited power of giving consent

under Section 321 has to assess the evidence and find out

whether the case would end in acquittal or conviction, would be to

rewrite Section 321 CrPC and would be to concede to the court a

power which the scheme of Section 321 does not contemplate.

The acquittal or discharge order under Section 321 are not the

same as the normal final orders in criminal cases. The conclusion

will not be backed by a detailed discussion of the evidence in the

case of acquittal or absence of prima facie case or groundlessness

in the case of discharge. All that the court has to see is whether

the application is made in good faith, in the interest of public

policy and justice and not to thwart or stifle the process of

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law. The court after considering these facets of the case, will

have to see whether the application suffers from such

improprieties or illegalities as to cause manifest injustice if

consent is given. In this case, on a reading of the application for

withdrawal, the order of consent and the other attendant

circumstances, I have no hesitation to hold that the application for

withdrawal and the order giving consent were proper and strictly

within the confines of Section 321 CrPC.

[…]

78. The section gives no indication as to the grounds on which the

Public Prosecutor may make the application, or the considerations

on which the court is to grant its consent. The initiative is that of

the Public Prosecutor and what the court has to do is only to give

its consent and not to determine any matter judicially. The judicial

function implicit in the exercise of the judicial discretion for

granting the consent would normally mean that the court has

to satisfy itself that the executive function of the Public

Prosecutor has not been improperly exercised, or that it is not

an attempt to interfere with the normal course of justice for

illegitimate reasons or purposes.”

(emphasis supplied)

The Court also held that while granting or denying consent to a withdrawal

petition, the court is not to review the purported grounds warranting withdrawal

that the public prosecutor has provided, but must only make sure that it is for a

legitimate purpose, initiated without mala fides.

20 Both, Justice Khalid in his majority opinion and Justice Venkataramiah (as

the learned Chief Justice then was) in his concurring opinion, held that this Court

must be circumspect in interfering with the concurrent findings of the courts

below, allowing or dismissing the withdrawal petition. Highlighting that this Court

is not a court of facts and evidence it was observed:

“89. An order passed under Section 321 comes to this Court by

special leave, under Article 136 of the Constitution of India. The

appeal before us came thus. It has been the declared policy of this

Court not to embark upon a roving enquiry into the facts and

evidence of cases like this or even an order against discharge.

This Court will not allow itself to be converted into a court of

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facts and evidence. This Court seldom goes into evidence and

facts. That is as it should be. Any departure from this salutary

self-imposed restraint is not a healthy practice and does not

commend itself to me. It is necessary for this Court to

remember that as an apex court, any observation on merits or

on facts and evidence of a case which has to go back to the

courts below will seriously prejudice the party affected and it

should be the policy of this Court not to tread upon this

prohibited ground and invite unsavoury but justifiable

criticism. Is this Court to assess the evidence to find out whether

there is a case for acquittal or conviction and convert itself into a

trial court? Or is this Court to order a retrial and examination of

hundred witnesses to find out whether the case would end in

acquittal or conviction? Either of these conclusions in the case is

outside the scope of Section 321. This can be done only if we

rewrite Section 321.”

(emphasis supplied)

21 The decision in Sheonandan Paswan (supra) has held the ground since

then. An instance of its application was when this Court dealt with the withdrawal

of prosecution of an MLA for offences involving misappropriation of public money.

In Yerneni Raja Ramchandar vs State of Andhra Pradesh & Ors.

21, the

appellant, an MLA, was accused of fabricating hospital records to repeatedly

claim medical reimbursement for a sum of Rs. 2,89,489, Rs. 1,33,939, and Rs.

1,22,825 from the Government. Amounts of Rs. 289,489, Rs. 60,000 and Rs.

60,000 were sanctioned by the Government time and again in response to these

requests. Charges of misappropriation were levelled against him. Since the

appellant was an MLA, the matter was referred to the Ethics Committee of the

Legislative Assembly, where the appellant tendered an apology and refunded Rs.

60,000 to the Government. Pursuant to this, the Ethics Committee recommended

a withdrawal of the prosecution against the appellant. The State Government also

issued an order requiring the District Collector to direct the Prosecutor to

21 (2009) 15 SCC 604.

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withdraw the case. Multiple applications for withdrawal of prosecution were made,

which were dismissed by the Magistrate. These, however, were ultimately

allowed by the High Court. In refusing to allow the withdrawal of the prosecution

against the appellant, this Court opined that in view of decision in Sheonandan

Paswan (supra), the power of judicial review of the High Court was limited. It

could have only interfered if there was an error of law committed by the

Magistrate. Further, the Court also considered the implication of the disciplinary

action taken by the Ethics Committee of the Legislative Assembly on the

withdrawal of prosecution under Section 321 of the CrPC. Justice SB Sinha,

speaking for the two-judge Bench, held that

“15. The Ethics Committee of the legislature of the State of Andhra

Pradesh was empowered to deal with the disciplinary action or

otherwise which may be taken against the Members of the

Legislative Assembly. A criminal case against a Member of the

Legislative Assembly, ordinarily, should be allowed to be continued

on its own merit, particularly, in the light of the facts of the present

matter wherein the High Court had refused to interfere at the

earlier stages of the proceedings. We have also noticed

hereinbefore that the High Court, in fact, had not only been

monitoring the investigation, but also directed the learned trial

Judge to complete the trial within a period of three months. The

action on the part of the State to issue the said government order

despite the earlier orders of the High Court must be considered

keeping in view the said factual matrix.

[…]

18. The government order was issued even according to the State

in terms of the recommendations made by the Ethics Committee

alone. […] The Ethics Committee had no jurisdiction to make

such recommendations. If the State had acted on the basis of

recommendations made by a body who had no role to play, its

action would be vitiated in law, recommendations of the

Ethics Committee being unauthorised, the action of the State

would attract the doctrine of malice in law.

19. Even otherwise, the action on the part of the State, in our

opinion, suffers from malice on fact as well. The State is the

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protector of law. When it deals with a public fund, it must act in

terms of the procedure established by law. In respect of public

fund, the doctrine of public trust would also be applicable so

far as the State and its officers are concerned. It could not,

save and except for very strong and cogent reasons, have

issued the said government order despite the orders of the

High Court.”

(emphasis supplied)

22 In offences involving the violation of public trust by executive or legislative

authorities, this Court has evaluated the gravity of the offence and the impact of

the withdrawal of prosecution on public life. In Bairam Muralidhar vs State of

Andhra Pradesh22, the Prosecutor was seeking a withdrawal of the prosecution

against a police officer who had been accused of demanding a bribe in exchange

of not implicating a particular individual for an offence of kidnapping and for

reducing the charges against the individual’s son. The police officer was accused

of offences under Sections 7 and 13(1) of the Prevention of Corruption Act 1988.

An application under Section 321 of the CrPC was filed by the Prosecutor based

on the fact that the Government had issued an order for withdrawal of

prosecution against the officer given his meritorious service and directed that his

case be placed before the Administrative Tribunal for disciplinary proceedings.

This Court affirmed the concurrent findings of the High Court and the Trial Court

and rejected the application for withdrawal. Justice Dipak Misra (as he then was),

speaking on behalf of the two judge Bench, held that

“19. In the case at hand, as the application filed by the Public

Prosecutor would show that he had mechanically stated about the

conditions precedent, it cannot be construed that he has really

perused the materials and applied his independent mind solely

because he has so stated. The application must indicate

perusal of the materials by stating what are the materials he

22 (2014) 10 SCC 380.

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has perused, may be in brief, and whether such withdrawal of

the prosecution would serve public interest and how he has

formed his independent opinion. As we perceive, the learned

Public Prosecutor has been totally guided by the order of the

Government and really not applied his mind to the facts of the

case. The learned trial Judge as well as the High Court has

observed that it is a case under the Prevention of Corruption Act.

They have taken note of the fact that the State Government had

already granted sanction. It is also noticeable that the AntiCorruption Bureau has found there was no justification of

withdrawal of the prosecution.

[…]

22. We have referred to these authorities only to show that in

the case at hand, regard being had to the gravity of the

offence and the impact on public life apart from the nature of

application filed by the Public Prosecutor, we are of the

considered opinion that view expressed by the learned trial

Judge as well as the High Court cannot be found fault with.

We say so as we are inclined to think that there is no ground to

show that such withdrawal would advance the cause of justice and

serve the public interest. That apart, there was no independent

application of mind on the part of the learned Public Prosecutor,

possibly thinking that the court would pass an order on a mere

asking.”

(emphasis supplied)

23 The principles which emerge from the decisions of this Court on the

withdrawal of a prosecution under Section 321 of the CrPC can now be

formulated:

(i) Section 321 entrusts the decision to withdraw from a prosecution to the

public prosecutor but the consent of the court is required for a withdrawal

of the prosecution;

(ii) The public prosecutor may withdraw from a prosecution not merely on the

ground of paucity of evidence but also to further the broad ends of public

justice;

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(iii) The public prosecutor must formulate an independent opinion before

seeking the consent of the court to withdraw from the prosecution;

(iv) While the mere fact that the initiative has come from the government will

not vitiate an application for withdrawal, the court must make an effort to

elicit the reasons for withdrawal so as to ensure that the public prosecutor

was satisfied that the withdrawal of the prosecution is necessary for good

and relevant reasons;

(v) In deciding whether to grant its consent to a withdrawal, the court

exercises a judicial function but it has been described to be supervisory in

nature. Before deciding whether to grant its consent the court must be

satisfied that:

(a) The function of the public prosecutor has not been improperly

exercised or that it is not an attempt to interfere with the normal course

of justice for illegitimate reasons or purposes;

(b) The application has been made in good faith, in the interest of public

policy and justice, and not to thwart or stifle the process of law;

would cause manifest injustice if consent were to be given;

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

(e) The permission has not been sought with an ulterior purpose

unconnected with the vindication of the law which the public prosecutor

is duty bound to maintain;

(vi) While determining whether the withdrawal of the prosecution subserves the

administration of justice, the court would be justified in scrutinizing the

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nature and gravity of the offence and its impact upon public life especially

where matters involving public funds and the discharge of a public trust are

implicated; and

(vii) In a situation where both the trial judge and the revisional court have

concurred in granting or refusing consent, this Court while exercising its

jurisdiction under Article 136 of the Constitution would exercise caution

before disturbing concurrent findings. The Court may in exercise of the

well-settled principles attached to the exercise of this jurisdiction, interfere

in a case where there has been a failure of the trial judge or of the High

Court to apply the correct principles in deciding whether to grant or

withhold consent.

C.2 Immunities and Privileges of MLAs

24 Articles 105 and 194 of the Constitution provide in similar terms for the

privileges and immunities of Members of Parliament23 and MLAs respectively.

Article 194 of the Constitution is extracted below:

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

the members and committees thereof

(1) Subject to the provisions of this Constitution and to the rules

and standing orders regulating the procedure of the Legislature,

there shall be freedom of speech in the Legislature of every State.

(2) No member of the Legislature of a State shall be liable to

any proceedings in any court in respect of anything said or

any vote given by him in the Legislature or any committee

thereof, and no person shall be so liable in respect of the

publication by or under the authority of a House of such a

Legislature of any report, paper, votes or proceedings.

(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

23 “MPs”

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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.

(4) The provisions of clauses (1), (2) and (3) shall apply in relation

to persons who by virtue of this Constitution have the right to

speak in, and otherwise to take part in the proceedings of a House

of the Legislature of a State or any committee thereof as they

apply in relation to members of that Legislature.”

(emphasis supplied)

25 Clause 1 of Article 194 recognizes the freedom of speech in the legislature

of every State. However, the freedom recognized by clause 1 is subject to the

provisions of the Constitution and standing orders regulating the procedure of the

State Legislatures. Clause 2 enunciates a rule of immunity which protects a

member of the legislature from a proceeding in any court “in respect of anything

said or a vote given” in the legislature or in any committee of the legislature.

Moreover it provides a shield against any liability for a publication of a report,

paper, votes or proceedings by or under the authority of the House. Further,

clause 3 of Article 194 provides that in other respects the privileges and

immunities are such as defined by law. Until defined by law – there being

presently no law on the subject – the privileges and immunities of the members of

the House and its committees shall be such as were in existence before Section

26 of the Forty-Fourth Amendment to the Constitution came into force. According

to clause 4, the privileges and immunities also attach to those who have a right to

speak in and participate in the proceedings of the House or its committees.

26 At the time of the adoption of the Constitution, clause 3 of Article 194

provided that the privileges, immunities and powers of a House of the Legislature

of a State (and of its members and committees) shall be such as may from time

to time be defined by the legislature by law, and until so defined, shall be those of

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the House of Commons of the Parliament of the United Kingdom at the

commencement of the Constitution. By Section 34 of the Forty- Second

Amendment to the Constitution, clause (3) of Article 194 was amended and

embodied a transitory provision under which until the powers, privileges and

immunities of a House of the legislature of a State (and of the members and its

committees) were defined by a law made by the legislature, they shall be those of

the British House of Commons and the privileges of each House “shall be such

as may from time to time be evolved by such House”. However, Section 34 was

not brought into force by issuing a notification under Section 1(2) of the

Constitution (Forty-Second) Amendment Act 1976. Eventually, clause (3) in its

present form was substituted by Section 26 of the Constitution (Forty-Fourth)

Amendment Act 1978 with effect from 20 June 197924. The present position of

clause (3) is that:

(i) The ultimate source of the powers, privileges and immunities of a House of

a State Legislature and of the members and committees would be

determined by way of a legislation;

(ii) Until such legislation is enacted, the position as it stood immediately before

the coming into force of Section 26 of the Forty-Fourth Amendment Act

1978 would govern; and

24 Section 26 of the Constitution (Forty-fourth Amendment) Act 1978, w.e.f. 20 June 1979, read as follows:

“26. In article 194 of the Constitution, in clause (3), for the words “shall be those of the House of commons of the

Parliament of the United Kingdom and of its members and committees, at the commencement of this

Constitution”, the words, figures and brackets “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”

shall be substituted.”

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(iii) The amendment to the Constitution introducing the concept of evolution of

privileges and immunities by the House of the legislature never came into

force and now stands deleted.

C.2.1 Position in the United Kingdom

27 Now, in this backdrop, it would be necessary to assess at the outset the

nature of the privileges and immunities referable to the House of Commons in the

United Kingdom. Erskine May’s Parliamentary Practice25, provides a

comprehensive statement of law, indicating the phases through which

Parliamentary privilege evolved in the UK.

First phase

The first phase of the conflict between Parliament and the courts was “about the

relationship between the lex parliament and the common law of England”. In this

view, the House of Parliament postulated that “they alone were the judges of the

extent and application of their own privileges, not examinable by any court or

subject to any appeal”. The first phase of the conflict, has been described thus:

“The earlier views of the proper spheres of court and Commons

were much influenced by political events and the constitutional

changes to which they gave rise. Coke in the early seventeenth

century regarded the law of Parliament as a particular law, distinct

from the common law. For that reason “judges ought not to give

any opinion of a matter of Parliament, because it is not to be

decided by the common laws but secundum legem et

consuetudinem parliament26.”

However, even during this period, “elements of the opposing view that – decision

of Parliament on matters of privilege can be called in question in other courts,

25 ERSKINE MAY, PARLIAMENTARY PRACTICE, Chapter 17, page 281 (24th Ed., Lexis Nexis, 2011). 26 SIR EDWARD COKE, FOURTH PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 14 (1797).

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that the lex parliament is part of the common law and known to the courts, and

that resolutions at either House declaratory of privilege will not bind the courtsare found at almost as early a date, and they gained impetus as time went by”.

Second phase

Erskine May tells us that in the second phase of the nineteenth century:

“…some of the earlier claims to jurisdiction made in the name of

privilege by the House of Commons were untenable in a court of

law: that the law of Parliament was part of the general law, that its

principles were not beyond the judicial knowledge of the judges,

and that the duty of the common law to define its limits could no

longer be disputed. At the same time, it was established that there

was a sphere in which the jurisdiction of the House of Commons

was absolute and exclusive.”

Third phase

In the early and mid-twentieth century:

“In general, the judges have taken the view that when a matter

is a proceeding of the House, beginning and terminating

within its own walls, it is obviously outside the jurisdiction of

the courts, unless criminal acts are involved. Equally clearly, if

a proceeding of the House results in action affecting the rights of

persons exercisable outside the House, the person who published

the proceedings or the servant who executed the order (for

example) will be within the jurisdiction of the courts, who may

inquire whether the act complained of is duly covered by the order,

and whether the privilege claimed by the House does, as pleaded,

justify the act of the person who executed the order.”

(emphasis supplied)

In the later twentieth century, the House of Commons came to a significant

conclusion about the limits of the phrase and the protection afforded to

proceedings in Parliament.

28 The privileges of the British House of Commons at the commencement of

the Constitution as embodied in clause (3) of Article 194 as it then stood has

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significant consequences. First, the nature and extent of the privileges enjoyed by

the members was to be decided by the courts and not by the legislature, following

the English principle that the courts have the power to determine whether the

House possessed a particular privilege. Second, the courts had the power to

determine whether any of the privileges of the British House of Commons that

existed at the date of the commencement of the Constitution, had become

inconsistent with the provisions of the Constitution.

29 As mentioned above, since the Parliament is yet to enact a law on the

subject of parliamentary privileges, according to Article 194(3) of the Constitution,

the MLAs shall possess privileges that the members of the House of Commons

possessed at the time of enactment of the Constitution. It is thus imperative that

we refer to judgments of the United Kingdom on whether criminal offences

committed within the precincts of the House of Commons are covered under

‘parliamentary privileges’, receiving immunity from prosecution.

30 In R vs Eliot, Holles and Valentine27, Sir John Eliot and his fellows in the

House of Commons protested against the Armenian movement in the English

Church in the House. During the course of the protest, three members of the

House used force to hold the Speaker down, preventing him from adjourning the

House. They were charged for seditious speech and assault. The court of King’s

Bench rejected the argument of the members that only the House had the

exclusive jurisdiction to examine their conduct, and imposed fined and sentenced

them to imprisonment. The House of Lords reversed the judgment of the King’s

Bench on the writ of error. One of the errors specified was that the charge of

27 (1629) 3 St Tr 292-336.

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seditious speech and assault on the Speaker should not have been disposed of

by the same judgment. It was observed that while the former was within the

exclusive jurisdiction of the House, the latter could ‘perhaps’ be tried by the

courts. It was not expressly and categorically stated that the assault inside the

House could only be tried by the House.

31 In Bradlaugh vs Gossett,

28 an elected member of the House of

Commons prevented the Speaker from administering oath. Subsequently, the

Sergeant-at-Arms exerted physical force to remove the member from the

precincts of the House. The elected member initiated action against the Sergeant

and the same was dismissed. Justice Stephen in his concurring judgment

observed that the House –similar to a private person – has an exercisable right to

use force to prevent a trespasser from entering the House, and authorise others

to carry out its order. In that context he observed:

“The only force which comes in question in this case is, such force

as any private man might employ to prevent a trespass on his own

land. I know of no authority for the proposition that an

ordinary crime committed in the House of Commons would be

withdrawn from the ordinary course of criminal justice”.

(emphasis supplied)

Justice Stephen sought to differentiate ‘ordinary crimes’ from ‘crimes’. By the

former, he referred to criminal offences that are committed within the precincts of

the House, but bear no nexus to the effective participation in essential

parliamentary functions.

28 [1884] EWHC 1 (QB).

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32 In R vs Chaytor and others29, the UK Supreme Court was dealing with

four accused persons who were charged with false accounting in relation to

parliamentary expenses and had claimed immunity from legal proceedings as it

infringed their parliamentary privilege. Against them, disciplinary proceedings

were initiated by the House. Article 9 of the Bill of Rights 1689 provides that the

freedom of speech and debates or proceedings in the Parliament must not be

questioned by any court or place outside Parliament. The question before the

Court was what constituted “proceedings in Parliament”. Lord Phillips observed

that:

“83. The House does not assert an exclusive jurisdiction to

deal with criminal conduct, even where this relates to or

interferes with proceedings in committee or in the House.

Where it is considered appropriate the police will be invited to

intervene with a view to prosecution in the courts.

Furthermore, criminal proceedings are unlikely to be possible

without the cooperation of Parliament. Before a prosecution can

take place it is necessary to investigate the facts and obtain

evidence.”

(emphasis supplied)

The Law Lord further held that the submission of claims is incidental to the

administration of the parliament and not proceedings of the parliament:

“90. Where the House becomes aware of the possibility that

criminal offences may have been committed by a Member in

relation to the administration of the business of Parliament in

circumstances that fall outside the absolute privilege conferred by

article 9, the considerations of policy to which I have referred at

para 61 above require that the House should be able to refer the

matter to the police for consideration of criminal proceedings, or to

cooperate with the police in an inquiry into the relevant facts. That

is what the House has done in relation to the proceedings brought

against the three defendants.”

29 [2010] UKSC 52 .

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Referring to the distinction made by Justice Stephen in Bradlaugh (supra), Lord

Lodger observed:

“118. That remains the position to this day. I have therefore no

doubt that, if the offences with which the appellants are charged

are to be regarded as “ordinary crimes”, then – even assuming that

they are alleged to have been committed entirely within the

precincts of the House – the appellants can be prosecuted in the

Crown Court. The only question, therefore, is whether there is

any aspect of the offences which takes them out of the

category of “ordinary crime” and into the narrower category

of conduct in respect of which the House would claim a

privilege of exclusive cognizance.”

(emphasis supplied)

From the above cases it is evident that a person committing a criminal offence

within the precincts of the House does not hold an absolute privilege. Instead, he

would possess a qualified privilege, and would receive the immunity only if the

action bears nexus to the effective participation of the member in the House.

C.2.2 Position in India

33 The immunity available to the MPs under Article 105(2) of the Constitution

from liability to “any proceedings in any court in respect of anything said or any

vote given by him in Parliament” (similar to Article 194(2) of the Constitution in

case of MLAs) became the subject matter of the decision of the Constitution

Bench in P. V. Narasimha Rao (supra). The judgment of the Constitution Bench,

which consisted of Justice SC Agrawal, Justice GN Ray, Justice AS Anand,

Justice SP Bharucha and Justice S Rajendra Babu, comprised of three opinions.

The first opinion was by Justice SC Agrawal (on behalf of himself and Dr Justice

AS Anand), the second by Justice SP Bharucha (on behalf of himself and Justice

S Rajendra Babu) and the third, by Justice GN Ray.

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34 In understanding the judgment of the Constitution Bench, it becomes

necessary at the outset to dwell on the decision of Justice GN Ray. In the course

of his judgment, Justice GN Ray agreed with the reasoning of Justice SC

Agrawal that

(i) An MP is a public servant under Section 2(c) of the Prevention of

Corruption Act 1988; and

(ii) Since there is no authority to grant sanction for the prosecution of an MP

under Section 19(1) of the Prevention of Corruption Act 198830, the Court

can take cognizance of the offences mentioned in Section 19(1) in the

absence of sanction. However, before filing a charge sheet in respect of an

offence punishable under Sections 7, 10, 11, 12 and 15 against an MP in a

criminal court, the prosecuting agency must obtain the sanction of the

Chairman of the Rajya Sabha or the Speaker of the Lok Sabha as the case

may be.

35 Therefore, on the first aspect, while understanding the context and text of

the decision, it is important to bear in mind that Section 19(1) of the PC Act

specifically mandates sanction for prosecution of a public servant, a description

which is fulfilled by an MP. However, there being no authority competent to grant

sanction for the prosecution of a Member of Parliament, Justice SC Agrawal,

speaking for himself and Dr Justice AS Anand, held that:

“3. Since there is no authority competent to remove a Member of

Parliament and to grant sanction for his prosecution under Section

19(1) of the Prevention of Corruption Act, 1988, the court can take

cognizance of the offences mentioned in Section 19(1) in the

absence of sanction but till provision is made by Parliament in that

regard by suitable amendment in the law, the prosecuting agency,

30 “PC Act”

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before filing a charge-sheet in respect of an offence punishable

under Sections 7, 10, 11, 13 and 15 of the 1988 Act against a

Member of Parliament in a criminal court, shall obtain the

permission of the Chairman of the Rajya Sabha/Speaker of the Lok

Sabha, as the case may be.”

Justice GN Ray as noted earlier agreed with the above formulation.

36 However, it is necessary to appreciate the factual context of the case

before dealing with the interpretation of Article 105(3) of the Indian Constitution.

On 26 July 1993, a Motion of No Confidence was moved in the Lok Sabha

against the minority government of Shri P V Narasimha Rao. The support of

fourteen members was needed to defeat the No Confidence Motion. The Motion

was sought on 28 July 1993. 251 members voted in support, while 265 voted

against the Motion. It was alleged that certain MPs agreed to and did receive

bribes from certain other MPs. A prosecution was launched against the bribe

givers and the bribe takers and cognizance was taken by the Special Judge,

Delhi.

37 Before the Constitution Bench, a question was raised as to whether the

legal proceedings against the said MPs would be protected under the privileges

and immunities granted under Article 105(3) of the Constitution “in respect of

anything said or any vote given” by an MP. On the interpretation of Article 105(3),

the judgment of Justice SP Bharucha, speaking for himself and Justice Rajendra

Babu, received the concurrence of Justice GN Ray. The charge against the bribe

givers, who were MPs, was in regard to the commission of offences punishable

under the PC Act or the abetment of those offences. Justice SP Bharucha in the

course of his judgment held that Article 105(2) protects an MP against

proceedings in court “that relate to, or concern, or have a connection or nexus

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with anything said or a vote given, by him in Parliament”. The judgment of the

majority on this aspect held:

“136. It is difficult to agree with the learned Attorney General that

though the words “in respect of” must receive a broad meaning,

the protection under Article 105(2) is limited to court proceedings

that impugn the speech that is given or the vote that is cast or

arises thereout or that the object of the protection would be fully

satisfied thereby. The object of the protection is to enable

Members to speak their mind in Parliament and vote in the same

way, freed of the fear of being made answerable on that account in

a court of law. It is not enough that Members should be protected

against civil action and criminal proceedings, the cause of action of

which is their speech or their vote. To enable Members to

participate fearlessly in parliamentary debates, Members need

the wider protection of immunity against all civil and criminal

proceedings that bear a nexus to their speech or vote. It is for

that reason that a Member is not “liable to any proceedings in any

court in respect of anything said or any vote given by him”. Article

105(2) does not say, which it would have if the learned Attorney

General were right, that a Member is not liable for what he has

said or how he has voted. While imputing no such motive to the

present prosecution, it is not difficult to envisage a Member who

has made a speech or cast a vote that is not to the liking of the

powers that be being troubled by a prosecution alleging that he

had been party to an agreement and conspiracy to achieve a

certain result in Parliament and had been paid a bribe.”

(emphasis supplied)

38 Justice SC Agrawal and Dr Justice AS Anand reached a contrary

conclusion on the subject:

“98. On the basis of the aforesaid discussion we arrive at the

following conclusion:

1. A Member of Parliament does not enjoy immunity under Article

105(2) or under Article 105(3) of the Constitution from being

prosecuted before a criminal court for an offence involving offer or

acceptance of bribe for the purpose of speaking or by giving his

vote in Parliament or in any committees thereof.

2. A Member of Parliament is a public servant under Section 2(c)

of the Prevention of Corruption Act, 1988.

3. Since there is no authority competent to remove a Member of

Parliament and to grant sanction for his prosecution under Section

19(1) of the Prevention of Corruption Act, 1988, the court can take

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cognizance of the offences mentioned in Section 19(1) in the

absence of sanction but till provision is made by Parliament in that

regard by suitable amendment in the law, the prosecuting agency,

before filing a charge-sheet in respect of an offence punishable

under Sections 7, 10, 11, 13 and 15 of the 1988 Act against a

Member of Parliament in a criminal court, shall obtain the

permission of the Chairman of the Rajya Sabha/Speaker of the Lok

Sabha, as the case may be.”

39 The view of Justice SC Agrawal and Dr Justice AS Anand on the

construction of Article 105 (2) and Article 105(3) was however the minority view

since Justice GN Ray had concurred with the view of Justice SP Bharucha and

Justice Rajendra Babu on this aspect. Analyzing the decision of the majority led

by the judgment of Justice SP Bharucha, the stand out feature is this: the charge

against the alleged bribe takers was that they were party to a criminal conspiracy

in pursuance of which they had agreed to accept bribes to defeat the No

Confidence Motion on the floor of the House. In pursuance of the conspiracy, it

was alleged that the bribe-givers had passed on bribes to the alleged bribe

takers. It was in this context that the judgment noted:

“134…The nexus between the alleged conspiracy and bribe and

the no-confidence motion is explicit. The charge is that the alleged

bribe-takers received the bribes to secure the defeat of the noconfidence motion.”

40 Thus, the Court observed that the connection between the alleged

conspiracy, the bribe and the No Confidence Motion was explicit, and came to

the conclusion that the alleged bribe takers received the bribe to manipulate their

votes to secure the defeat of the No Confidence Motion. It was in this context that

the Court observed that the expression “in respect of” under Article 105(2) must

receive a broad meaning and the alleged conspiracy and bribe had a nexus to

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and were in respect of those votes and that the proposed inquiry in the criminal

proceedings was in regard to their votes in the motion of no-confidence.

41 The next judgment which is of significance in the evolution of this body of

law is the decision of the Constitution Bench in Raja Ram Pal vs Hon’ble

Speaker, Lok Sabha31. The case has become known in popular lore as the

“cash for query case”, where a sting operation on a private channel depicted

certain MPs accepting money either directly or through middlemen as

consideration for raising questions in the House. Similarly, another channel

carried a telecast alleging improper conduct of an MP in relation to the

implementation of the MPLADS Scheme. Following an enquiry by the committees

of the House, these MPs were expelled. This led to the institution of writ petitions

challenging the expulsion. In that context, the issues which were for

determination were:

“1. Does this Court, within the constitutional scheme, have the

jurisdiction to decide the content and scope of powers, privileges

and immunities of the legislatures and its Members?

2. If the first question is answered in the affirmative, can it be found

that the powers and privileges of the legislatures in India, in

particular with reference to Article 105, include the power of

expulsion of their Members?

3. In the event of such power of expulsion being found, does this

Court have the jurisdiction to interfere in the exercise of the said

power or privilege conferred on Parliament and its Members or

committees and, if so, is this jurisdiction circumscribed by certain

limits?”

31 (2007) 3 SCC 184.

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Chief Justice Y K Sabharwal speaking for the majority (Justice C K Thaker

concurring) held that:

“62. In view of the above clear enunciation of law by

Constitution Benches of this Court in case after case, there

ought not be any doubt left that whenever Parliament, or for

that matter any State Legislature, claims any power or privilege

in terms of the provisions contained in Article 105(3), or Article

194(3), as the case may be, it is the Court which has the

authority and the jurisdiction to examine, on grievance

being brought before it, to find out if the particular power

or privilege that has been claimed or asserted by the

legislature is one that was contemplated by the said

constitutional provisions or, to put it simply, if it was such

a power or privilege as can be said to have been vested in

the House of Commons of the Parliament of the United

Kingdom as on the date of commencement of the

Constitution of India so as to become available to the

Indian Legislatures.”

(emphasis supplied)

42 The principle which emphatically emerges from this judgment is that

whenever a claim of privilege or immunity is raised in the context of Article 105(3)

or Article 194 (3), the Court is entrusted with the authority and the jurisdiction to

determine whether the claim is sustainable on the anvil of the constitutional

provision. The Constitution Bench held that neither Parliament nor the State

legislatures in India can assert the power of “self-composition or in other words

the power to regulate their own constitution in the manner claimed by the House

of Commons or in the UK”. The decision therefore emphasizes the doctrine of

constitutional supremacy in India as distinct from parliamentary supremacy in the

UK.

43 A three judge Bench of this Court has made a distinction between

legislative functions and non-legislative functions of the members of the House

for determination of the scope of the privileges. In Lokayukta, Justice

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Ripusudan Dayal (Retired) (supra), the petitioner initiated action against certain

officers of the State Legislative Assembly for indulging in corruption relating to

construction work and initiated criminal proceedings against the officials. In turn,

the Speaker of the House issued a letter to the petitioner alleging breach of

privilege, against which the petitioner filed a writ petition before this Court.

Allowing the petition, Chief Justice P. Sathasivam speaking for a three-Judge

Bench observed that privileges are available only as far as they are essential for

the members to carry out their legislative functions. He held that the scope of the

privileges must be determined based on the need for them. The Court observed:

“51. 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. The

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:..[…]

52. 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 continues 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.”

(emphasis supplied)

44 Having detailed the position of law above, the next section would discuss

the validity of the argument invoking the immunities and privileges under Article

194 as a hypothesis for barring legal proceedings for acts of destruction of public

property in the present case.

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C.3 Privilege to commit acts of public destruction – an incongruous proposition

45 The essence of this case is whether the application made by the Public

Prosecutor under Section 321 of the CrPC falls within the interpretative

understanding of Section 321 of the CrPC as elucidated by the decisions of this

Court. The CJM held that the application could not be allowed and the High Court

in the exercise of its revisional jurisdiction affirmed the finding of the CJM. In

approaching this task in the exercise of its jurisdiction under Article 136 of the

Constitution, the Court must do well to bear in mind the caution which has been

expressed in the decision of the majority in the Constitution Bench decision in

Sheonandan Paswan (supra). The Court noted that it had been “the declared

policy of this Court not to embark upon a roving enquiry into the facts and

evidence of case like this”, particularly because any observation on merits or

facts and evidence will cause serious prejudice to parties at trial. Hence, in

approaching the submissions of the counsel, it is necessary to begin with a

caution and caveat that in evaluating them the Court must not transcend the

limits of its jurisdiction under Article 136. Both the CJM and the High Court have

come to the conclusion that the application for withdrawal made by the public

prosecutor under Section 321 should not be allowed. The issue is whether these

findings suffer from a palpable error or perversity which would warrant

interference by this Court.

46 We must at the outset clear two grounds raised by the appellants. First, the

High Court in the course of its decision has cited the observations in the minority

opinion of Chief Justice Bhagwati in Sheonandan Paswan (supra) treating them

to be the view of the court. Undoubtedly, the judgment of the learned Chief

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Justice expresses a minority opinion. The majority view is reflected in the

judgement of Justice V Khalid (speaking for himself and Justice S Natarajan) and

in the concurring opinion of Justice E S Venkataramiah. However, before we

accede to the submission of the appellants to displace the judgment of the High

Court on this count we must advert to whether it is consistent with the decision of

the majority in Sheonandan Paswan (supra). The conclusion of the High Court

to affirm the decision of the CJM must, therefore, be analysed from prism of the

law as it has been enunciated consistently in several decisions before and after

the judgment of the Constitution Bench and of course, in the decision in

Sheonandan Paswan (supra). The second aspect which must be borne in mind

is that the High Court has accepted the fact that no mala fides can be attributed

to the application for withdrawal. We will consider whether this is a circumstance

which in and of itself should have resulted in allowing the application for the grant

of permission for withdrawal of the prosecution under Section 321. The issue on

this aspect of the case is whether a finding that there is no absence of good faith

must inexorably result in allowing an application under Section 321 bereft of the

other considerations which must underlie such a decision.

47 Shorn of detail, the allegations against the accused need to be

recapitulated. At the material time in March 2015, the respondent-accused were

elected members of the State Legislative Assembly belonging to the party in

opposition. On 13 March 2015, when the Finance Minister was presenting the

annual budget, the MLAs in question are alleged to have disrupted the

presentation of the budget. To them is attributed the acts of climbing on to the

dais of the Speaker and damaging furniture and articles including the Speaker’s

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chair, computer, mic, emergency lamp and an electric panel amounting to a loss

of Rs.2,20,093. Following this incident, Crime No. 236 of 2015 was registered at

the behest of the Legislative Secretary of the State Assembly for offences

punishable under Sections 42732 and 44733 read with Section 34 of the IPC and

Section 3(1) of the Prevention of Damage to Public Property Act 1984. A final

report under Section 173 of the CrPC was submitted by the police and

cognizance was taken by the CJM.

48 The Prevention of Damage to Public Property Act 1984 was enacted by

Parliament “to provide for prevention of damage to public property and for

matters connected therewith”. Section 2(b) defines the expression ‘public

property’ thus:

“(b) “public property” means any property, whether immovable or

movable (including any machinery) which is owned by, or in the

possession of, or under the control of—

(i) the Central Government; or

(ii) any State Government; or

(iii) any local authority; or (iv) any corporation established by, or

under, a Central, Provincial or State Act; or

(v) any company as defined in section 617 of the Companies Act,

1956 (1 of 1956); or

(vi) any institution, concern or undertaking which the Central

Government may, by notification in the Official Gazette, specify in

this behalf:

Provided that the Central Government shall not specify any

institution, concern or undertaking under this sub-clause unless

such institution, concern or undertaking is financed wholly or

substantially by funds provided directly or indirectly by the Central

Government or by one or more State Governments, or partly by

the Central Government and partly by one or more State

Governments.”

32 “427. Mischief causing damage to the amount of fifty rupees.—Whoever commits mischief and thereby causes

loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either

description for a term which may extend to two years, or with fine, or with both”. 33 “447. Punishment for criminal trespass.—Whoever commits criminal trespass shall be punished with

imprisonment of either description for a term which may extend to three months, or with fine which may extend to

five hundred rupees, or with both”.

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The Statement of Objects and Reasons contains the rationale for the Ordinance

which was promulgated by the President on the subject, which was enacted as a

statute:

“With a view to curb acts of vandalism and damage to public

property including destruction and damage caused during riots and

public commotion, a need was felt to strengthen the law to enable

the authorities to deal effectively with cases of damage to public

property. Accordingly, the President promulgated on 28th January,

1984, the Prevention of Damage to Public Property Ordinance,

1984 (No. 3 of 1984).”

Section 3 which has been invoked in the present case is in the following terms:

“3. Mischief causing damage to public property.—

(1) Whoever commits mischief by doing any act in respect of any

public property, other than public property of the nature referred to

in sub-section (2), shall be punished with imprisonment for a term

which may extend to five years and with fine.

(2) Whoever commits mischief by doing any act in respect of any

public property being—

(a) any building, installation or other property used in connection

with the production, distribution or supply of water, light, power or

energy;

(b) any oil installations;

(d) any mine or factory;

(e) any means of public transportation or of tele-communications,

or any building, installation or other property used in connection

therewith, shall be punished with rigorous imprisonment for a term

which shall not be less than six months, but which may extend to

five years and with fine:

Provided that the court may, for reasons to be recorded in its

judgment, award a sentence of imprisonment for a term of less

than six months.”

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The expression “mischief” is defined in Section 2(a) to have the meaning which is

ascribed to it in Section 42534 of the IPC:

“(a) “mischief” shall have the same meaning as in section 425 of

the Indian Penal Code (45 of 1860);”

The ingredients of Section 425 are:

(i) causing destruction of any property (a) with an intent to cause; or (b)

knowing of the likelihood to cause wrongful loss or damage to the public or

to any person; or

(ii) any change in the property or its situation which destroys or diminishes its

value or utility or affects it injuriously.

49 The Prevention of Damage to Public Property Act 1984 seeks to penalise

inter alia the commission of mischief (as defined in Section 425 of the IPC) by

doing any act in respect of public property. Sub-Section (1) of Section 3 makes

34 “425. Mischief.—Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage

to the public or to any person, causes the destruction of any property, or any such change in any property or in

the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief””.

Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause loss or

damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he

is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that

person or not.

Explanation 2.—Mischief may be committed by an act affecting property belonging to the person who commits

the act, or to that person and others jointly.

(a) A voluntarily burns a valuable security belonging to Z intending to cause wrongful loss to Z. A has committed

mischief.

(b) A introduces water in to an ice-house belonging to Z and thus causes the ice to melt, intending wrongful loss

to Z. A has committed mischief.

A has committed mischief.

(d) A, knowing that his effects are about to be taken in execution in order to satisfy a debt due from him to Z,

destroys those effects, with the intention of thereby preventing Z from obtaining satisfaction of the debt, and of

thus causing damage to Z. A has committed mischief.

(e) A having insured a ship, voluntarily causes the same to be cast away, with the intention of causing damage to

the underwriters. A has committed mischief.

(f) A causes a ship to be cast away, intending thereby to cause damage to Z who has lent money on bottomry on

the ship. A has committed mischief.

(g) A, having joint property with Z in a horse, shoots the horse, intending thereby to cause wrongful loss to Z. A

has committed mischief.

(h) A causes cattle to enter upon a field belonging to Z, intending to cause and knowing that he is likely to cause

damage to Z's crop. A has committed mischief.

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the offence punishable with imprisonment for a term which may extend to five

years and with fine. Sub-Section (2) covers certain specific installations in the

case of which an act of mischief carries a minimum term of imprisonment of six

months but which may extend to five years and a fine. Section 535 embodies a

special provision for bail. Section 636 makes it clear that the law is in addition to

and not in derogation of any other law for the time being in force.

50 The gravity of the offence involving a destruction of public property was

considered by this Court in Re: Destruction of Public and Private Properties37,

where it took suo motu cognizance to remedy the large-scale destruction of

public and private properties in agitations, bandhs, hartals and other forms of

‘protest’. The Court formed two committees chaired by Justice KT Thomas

(former judge of this Court) and Mr Fali S Nariman, Senior counsel and adopted

the recommendations of both the committees in laying down specific guidelines

for investigation and prosecution of offences involving destruction of public

property, assessment of damages and determination of compensation in cases

involving destruction of property. In the more recent decision Kodungallur Film

Society and Another vs Union of India38, this Court noted that the guidelines in

Re: Destruction of Public and Private Properties (supra) have been

considered by the Union of India and a draft Bill for initiating legislative changes

along the lines of the recommendations is under consideration. The Court also

35 “5. Special provisions regarding bail.—No person accused or convicted of an offence punishable under section

3 or section 4 shall, if in custody, be released on bail or on his own bond unless the prosecution has been given

an opportunity to oppose the application for such release.”

36 “6. Saving.—The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any

other law for the time being in force, and nothing contained in this Act shall exempt any person from any

proceeding (whether by way of investigation or otherwise) which might apart from this Act, be instituted or taken

against him.”

37 2009 5 SCC 212. 38 2018 10 SCC 713.

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issued guidelines on preventive measures to curb mob violence, determining

compensation and fixing liability for offences, and in regard to the responsibility of

police officials for investigation of such crimes.

51 Based on the above, it is evident that there has been a growing recognition

and consensus both in this Court and Parliament that acts of destruction of public

and private property in the name of protests should not be tolerated. Incidentally,

the Kerala Legislative Assembly also enacted the Kerala Prevention of Damage

to Private Property and Payment of Compensation Act 2019 (Act No. 09 of 2019)

to complement the central legislation, Prevention of Damage to Public Property

Act 1984, with a special focus on private property.

52 The persons who have been named as the accused in the FIR in the

present case held a responsible elected office as MLAs in the Legislative

Assembly. In the same manner as any other citizen, they are subject to the

boundaries of lawful behaviour set by criminal law. No member of an elected

legislature can claim either a privilege or an immunity to stand above the

sanctions of the criminal law, which applies equally to all citizens. The purpose

and object of the Act of 1984 was to curb acts of vandalism and damage to public

property including (but not limited to) destruction and damage caused during riots

and public protests.

53 A member of the legislature, the opposition included, has a right to protest

on the floor of the legislature. The right to do so is implicit in Article 105(1) in its

application to Parliament and Article 194(1) in its application to the State

Legislatures. The first clauses of both these Articles contain a mandate that

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“there shall be freedom of speech” in Parliament and in the legislature of every

State. Nonetheless, the freedom of speech which is protected by the first clause

is subject to the provisions of the Constitution and to the rules and standing

orders regulating the procedure of the legislature. The second clause provides

immunity against liability “to any proceedings in any court” in respect of “anything

said or any vote given” in the legislature or any committee. Moreover, no person

is to be liable in respect of the publication by or under the authority of Parliament

or of the House of the State Legislature of any report, paper, votes or

proceedings. We have earlier traced the history of Clause (3) of Article 194 as it

originally stood under which the powers, privileges and immunities of the

members of Parliament and of the State Legislatures were those which were

recognised for Members of the House of Commons immediately before the

enforcement of the Constitution. This provision, as we have seen, was sought to

be amended by the Forty Second Amendment and was ultimately amended by

the Forty Fourth Amendment, from which it derives its present form. It recognises

the powers, privilege and immunities as they stood immediately before the

enforcement of Section 26 of the Forty Fourth Amendment.

54 Tracing the history of the privileges and immunities enjoyed by members of

the House of Commons, Erskine May makes a doctrinal division of the position in

the UK into various phases. However, the stand out feature which emerges from

the privileges and immunities of the members of the House of Commons is the

absence of an immunity from the application of criminal law. This jurisprudential

development began in Sir John Elliot (supra), was developed by Justice

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Stephen in Bradlaugh (supra), and cemented by the UK Supreme Court in

Chaytor (supra).

55 There is a valid rationale for this position. The purpose of bestowing

privileges and immunities to elected members of the legislature is to enable them

to perform their functions without hindrance, fear or favour. This has been

emphasized by the three judge Bench in Lokayukta, Justice Ripusudan Dayal

(supra). The oath of office which members of Parliament and of the State

Legislature have to subscribe requires them to (i) bear true faith and allegiance to

the Constitution of India as by law established; (ii) uphold the sovereignty and

integrity of India; and (iii) faithfully discharge the duty upon which they are about

to enter. It is to create an environment in which they can perform their functions

and discharge their duties freely that the Constitution recognizes privileges and

immunities. These privileges bear a functional relationship to the discharge of the

functions of a legislator. They are not a mark of status which makes legislators

stand on an unequal pedestal. It is of significance that though Article 19(1)(a)

expressly recognises the right to freedom of speech and expression as inhering

in every citizen, both Articles 105(1) and 194(1) emphasise that “there shall be

freedom of speech” in Parliament and in the Legislature of a State. In essence,

Article 19(1)(a) recognizes an individual right to the freedom of speech and

expression as vested in all citizens. Articles 105(1) and 194(1) speak about the

freedom of speech in the Parliament and State Legislatures and in that context

must necessarily encompass the creation of an environment in which free speech

can be exercised within their precincts. The recognition that there shall be

freedom of speech in Parliament and the State Legislatures underlines the need

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to ensure the existence of conditions in which elected representatives can

perform their duties and functions effectively. Those duties and functions are as

much a matter of duty and trust as they are of a right inhering in the

representatives who are chosen by the people. We miss the wood for the trees if

we focus on rights without the corresponding duties cast upon elected public

representatives.

56 Privileges and immunities are not gateways to claim exemptions from the

general law of the land, particularly as in this case, the criminal law which

governs the action of every citizen. To claim an exemption from the application of

criminal law would be to betray the trust which is impressed on the character of

elected representatives as the makers and enactors of the law. The entire

foundation upon which the application for withdrawal under Section 321 was

moved by the Public Prosecutor is based on a fundamental misconception of the

constitutional provisions contained in Article 194. The Public Prosecutor seems to

have been impressed by the existence of privileges and immunities which would

stand in the way of the prosecution. Such an understanding betrays the

constitutional provision and proceeds on a misconception that elected members

of the legislature stand above the general application of criminal law.

57 The reliance placed by the appellants on P.V Narasimha Rao (supra) to

argue that the action of the respondent-accused inside the House was a form of

‘protest’ which bears a close nexus to the freedom of speech, and thus is covered

by Article 194(2) is unsatisfactory. The majority in P.V Narasimha Rao (supra)

dealt with the interpretation of the phrase ‘in respect of’ and gave it a wide import.

At the same time, the majority observed that there must be a nexus between the

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act or incident (which in that case was the act of bribery in the context of the

votes cast on a motion of no-confidence) and the freedom of speech or to vote. It

was emphasised that the bribe was given to manipulate the votes of the MPs and

thus, it bore a close nexus to the freedom protected under Article 105(2). The

case however, did not deal with the ambit of the privilege of ‘freedom of speech’

provided to the members of the House. It was in Lokayukta, Justice Ripusudan

Dayal (Retired) (supra) that a three judge Bench of this Court laid down the law

for the identification of the content of the privileges. It was held that the members

shall only possess such privileges that are essential for undertaking their

legislative functions. An alleged act of destruction of public property within the

House by the members to lodge their protest against the presentation of the

budget cannot be regarded as essential for exercising their legislative functions.

The actions of the members have trodden past the line of constitutional means,

and is thus not covered by the privileges guaranteed under the Constitution.

58 The test which has been laid down in the decisions of this Court

commencing with Ram Naresh Pandey (supra) in 1957, spanning decisions

over the last 65 years is consistent. The true function of the court when an

application under Section 321 is filed is to ensure that the executive function of

the public prosecutor has not been improperly exercised or that it is not an

attempt to interfere with the normal course of justice for illegitimate reasons or

purposes. The court will grant its consent if it is satisfied that it sub-serves the

administration of justice and the purpose of seeking it is not extraneous to the

vindication of the law. It is the broad ends of public justice that must guide the

decision. The public prosecutor is duty bound to act independently and ensure

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that they have applied their minds to the essential purpose which governs the

exercise of the powers. Whether the public prosecutor has acted in good faith is

not in itself dispositive of the issue as to whether consent should be given. This is

clear from the judgment in Sheonandan Paswan (supra). In paragraph 73 of the

judgment, Justice V Khalid has specifically observed that the court must

scrutinize “whether the application is made in good faith, in the interest of public

policy and justice and not to thwart or stifle the process of law”. Good faith is one

and not the only consideration. The court must also scrutinize whether an

application suffers from such improprieties or illegalities as to cause manifest

injustice if consent is given.

59 On the touchstone of these principles, there can be no manner of doubt

that the CJM was justified in declining consent for the withdrawal of the

prosecution under Section 321. The acts complained of which are alleged to

constitute offences punishable under Sections 425, 427 and 447 of the IPC and

under Section 3(1) of the Prevention of Damage of Public Property Act 1984 are

stated to have been committed in the present case on the floor of the State

Legislature. Committing acts of destruction of public property cannot be equated

with either the freedom of speech in the legislature or with forms of protest

legitimately available to the members of the opposition. To allow the prosecution

to be withdrawn in the face of these allegations, in respect of which upon

investigation a final report has been submitted under Section 173 of the CrPC

and cognizance has been taken, would amount to an interference with the normal

course of justice for illegitimate reasons. Such an action is clearly extraneous to

the vindication of the law to which all organs of the executive are bound. Hence,

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the mere finding of the High Court that there is no absence of good faith would

not result in allowing the application as a necessary consequence, by ignoring

the cause of public justice and the need to observe probity in public life. The

members of the State Legislature have in their character as elected

representatives a public trust impressed upon the discharge of their duties.

Allowing the prosecution to be withdrawn would only result in a singular result,

which is that the elected representatives are exempt from the mandate of criminal

law. This cannot be countenanced as being in aid of the broad ends of public

justice.

60 We shall now deal with two other arguments raised by the appellants and

the respondent-accused : First, whether the sanction of the Speaker of the House

is required for prosecuting MLAs for occurrences within the precincts of the

Assembly and second, whether the members are protected by privilege under

Article 194(2) which is available in case of publication of proceedings that take

place inside the House.

C.4 Sanction of Speaker

61 The Speaker of the legislative assembly is appointed under Article 178 of the

Constitution. The Speaker is the presiding officer of the House, and has complete

autonomy to make decisions on the functioning of the house and maintenance of

decorum of the House. Chapter IV of the Rules of Procedure and Conduct of

Business in the Kerala Legislative Assembly39 states that the Speaker presides over

39 “Kerala Assembly Rules”.

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the House, decides on the sittings and adjournments of the House, and makes

arrangements for carrying out the smooth conduct of the business of the House.

62 The appellants have relied on P.V. Narasimha Rao (supra) to argue that the

prior sanction of the Speaker, as the presiding officer of the House, is necessary to

initiate a prosecution against the members of the House for the commission of an

offence inside the House. We are unable to accept this submission. The decision of

this Court in P.V. Narasimha Rao (supra) and the factual background within which it

arose has been discussed earlier. In that case MPs were accused of committing

offences under the PC Act. Section 19 of the PC Act specifically provides that

cognisance of offences committed by a public servant under Sections 7, 10, 11, 13

and 15 can only be taken with the prior sanction of the authority competent to

remove a public servant from office40. In light of this section, the majority in P.V.

Narasimha Rao (supra) (Justice S C Agarwal speaking for himself and Dr Justice A

S Anand with Justice G N Ray concurring on this point) held that since MPs are

public servants, prior sanction is required to initiate a prosecution against them. The

Court also held that since there is no authority competent to remove an MP, the

power to grant a sanction to prosecute an MP would reside in the Speaker of the

House. The observations of the Constitution Bench regarding prior sanction were

made with specific reference to Section 19 of the PC Act and cannot be construed to

imply a broader proposition of law that sanction is a pre-requisite for initiating a

prosecution against the members of the House, in this case of the Kerala Legislative

Assembly for any offences committed within the House. In fact, this contention was

40 “19. (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to

have been committed by a public servant, except with the previous sanction [save as otherwise provided in the

Lokpal and Lokayuktas Act, 2013 (1 of 2014)]— (a) in the case of a person who is employed in connection with

the affairs of the Union and is not removable from his office save by or with the sanction of the Central

Government, of that Government; (b) in the case of a person who is employed in connection with the affairs of a

State and is not removable from his office save by or with the sanction of the State Government, of that

Government; (c) in the case of any other person, of the authority competent to remove him from his office.”

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raised before the Constitution Bench in P.V. Narasimha Rao (supra) but was

rejected. It was argued, relying on the decision in K. Veeraswami vs Union of

India,41 that the no criminal proceedings can be launched against an MLA without

receiving the sanction of the Speaker. In Veeraswami (supra), the appellant was the

Chief Justice of the Madras High Court when he was charged with criminal

misconduct under the Prevention of Corruption Act, 1947. It was laid down that a

criminal case cannot be registered against a judge of the High Court or the Supreme

Court unless the Chief Justice of India is consulted. Justice Shetty (for himself and

Justice Venkatachalliah) observed thus:

“60….Secondly, the Chief Justice being the head of the judiciary is

primarily concerned with the integrity and impartiality of the judiciary.

Hence it is necessary that the Chief Justice of India is not kept out of the

picture of any criminal case contemplated against a Judge. He would be

in a better position to give his opinion in the case and consultation with

the Chief Justice of India would be of immense assistance to the

government in coming to the right conclusion. We therefore, direct that

no criminal case shall be registered under Section 154, CrPC

against a Judge of the High Court, Chief Justice of High Court or

Judge of the Supreme Court unless the Chief Justice of India is

consulted in the matter. Due regard must be given by the government

to the opinion expressed by the Chief Justice. If the Chief Justice is of

opinion that it is not a fit case for proceeding under the Act, the

case shall not be registered. If the Chief Justice of India himself is the

person against whom the allegations of criminal misconduct are received

the government shall consult any other Judge or Judges of the Supreme

Court. There shall be similar consultation at the stage of examining

the question of granting sanction for prosecution and it shall be

necessary and appropriate that the question of sanction be guided

by and in accordance with the advice of the Chief Justice of India.

Accordingly the directions shall go to the government. These directions,

in our opinion, would allay the apprehension of all concerned that the Act

is likely to be misused by the executive for collateral purpose.”

(emphasis supplied)

The Court in PV Narasimha Rao (supra) distinguished the instance of a criminal

charge instituted against an MP from that instituted against a member of the

41 (1991) 3 SCC 655.

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judiciary. It held that it is important that the sanction of the Chief Justice of India is

required before the initiation of a complaint against a judge to safeguard the

independence of the judiciary, and that the position of an MP is not akin to the

position of a judge:

“176. It is convenient now to notice a submission made by Mr Sibal

based upon Veeraswami case [(1991) 3 SCC 655 : 1991 SCC (Cri)

734 : (1991) 3 SCR 189] . He urged that just as this Court had

there directed that no criminal prosecution should be launched

against a Judge of a High Court or the Supreme Court without first

consulting the Chief Justice of India, so we should direct that no

criminal prosecution should be launched against a Member of

Parliament without first consulting the Speaker. As the majority

judgment makes clear, this direction was considered necessary

to secure the independence of the judiciary and in the light of

the “apprehension that the executive being the largest litigant

is likely to abuse the power to prosecute the Judges”.

Members of Parliament do not stand in a comparable position.

They do not have to decide day after day disputes between

the citizen and the executive. They do not need the additional

protection that the Judges require to perform their

constitutional duty of decision-making without fear or favour.”

(emphasis supplied)

63 It is clear from the above discussion that the decision of this Court in P.V.

Narasimha Rao (supra) does not lend support to the argument of the appellants

that the sanction of the Speaker ought to have been obtained. The appellants

have further relied on Section 197(1) of the CrPC in support of their submission

for requiring a prior sanction of the Speaker for prosecuting MLAs/MPs for

offences committed within the House. Section 197(1) of the CrPC states that

cognizance cannot be taken for an offence allegedly committed by a public

servant, who is removable with the sanction of the Government, unless the

sanction of the Government is received. The provision reads as under:

“197. Prosecution of Judges and public servants:

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(1) When any person who is or was a Judge or Magistrate or a

public servant not removable from his office save by or with

the sanction of the Government is accused of any offence

alleged to have been committed by him while acting or purporting

to act in the discharge of his official duty, no Court shall take

cognizance of such offence except with the previous

sanction-…”

(emphasis supplied)

64 A plain reading of Section 197 of the CrPC clarifies that it applies only if

the public servant can be removed from office by or with the sanction of the

government. However, MLAs cannot be removed by the sanction of the

government, as they are elected representatives of the people of India. They can

be removed from office, for instance when disqualified under the Xth Schedule of

the Constitution for which the sanction of the government is not required. Further,

sanction under Section 197 is only required before cognizance is taken by a

court, and not for the initiation of the prosecution.

65 The appellants have relied on Satish Chandra vs Speaker, Lok Sabha42

to urge that the powers of the Speaker to control and regulate the House

encompasses the power of sanction for initiation of proceedings against

members of the Assembly. We find that the dictum in Satish Chandra (supra)

also does not come to the aid of the appellants. In Satish Chandra (supra), a

petition was instituted before this Court under Article 32 of the Constitution

seeking a direction to the Speaker of the Lok Sabha and the Chairman of the

Rajya Sabha to withhold the payment of salary, perquisites and privileges of MPs

disrupting the House and to try them under the PC Act if they continue to avail of

them. The reliefs sought included their disqualification from membership of the

House and debarment from contesting future elections. The prayer was

42 (2014) 2 SCC 178.

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essentially to direct the Speaker of the House on the manner of conduct of the

proceedings. It was in this context that the two judge bench of this court

consisting of Chief Justice P Sathasivam and Justice Ranjana P Desai dismissed

the petition relying on Ramdas Athawale (5) vs Union of India43 where it was

held:

“He (the speaker) is the interpreter of its rules and procedure, and is

invested with the power to control and regulate the course of debate

and maintain order.”

In Ramdas Athawale (supra), the question for consideration was whether the

decision of the Speaker directing resumption of the sitting of the House can be

subject to judicial review. Therefore, in both Ramdas Athawale (supra) and

Satish Chandra (supra), the Court was faced with the question of judicial review

of the actions of the Speaker of the House. In both the cases the Court limited its

power to review so as to not interfere in the ordinary functioning and conduct of

the House in pursuance of Article 122(2) which states that the Speaker’s power

to regulate the proceedings and conduct of business is final and binding. It would

be a stretch however, to argue that these observations of the Court grant the

Speaker a carte blanche to decide if and when criminal proceedings should be

initiated against MLAs. The State of Kerala, unlike the State of Maharashtra has

not amended the relevant provisions of the CrPC warranting the sanction of the

Speaker for the initiation of criminal proceedings against MLA’s. The Code of

Criminal Procedure (Maharashtra Amendment) Act, 2015 was enacted amending

Sections 156 and 190 of the CrPC. The amended provisions state that no

Magistrate can order investigation and take cognizance for an offence alleged to

43 (2010) 4 SCC 1.

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have been committed by any person who is or was a pubic servant, ‘while acting

or purporting to act in discharge of his official duties’ , without the previous

sanction of the sanctioning authority. Moreover, even in such a case sanction is

necessary when the act was while acting or purporting to act in the discharge of

official duties. When no provisions warranting the sanction of the Speaker-either

specific to the offence (such as the PC Act) or specific to the class (such as the

Maharashtra Amendment Act, 2015) are enacted, the argument of the appellant

stands on fragile grounds. For the above mentioned reasons, the contention that

the prosecution against the respondent-accused is vitiated for want of sanction of

the Speaker is rejected.

C.5 Claiming privilege and inadmissibility of video recordings as evidence

66 During the course of his submissions, Mr Ranjit Kumar, learned Senior

counsel for the appellants, referred to a video recording of the incident that

occurred on 13 March 2015. The video was procured by the investigating

authorities from the Electronic Control Room of the House. The video recording

also finds mention in the withdrawal petition filed by the Public Prosecutor, where

the Prosecutor states that the video footage was obtained without the consent of

the Speaker of the House and thus lacks certification under Section 65B of the

Indian Evidence Act 1872. In this regard, Mr Ranjit Kumar has made two distinct

submissions, which require our consideration:

(i) The incident occurred on the floor of the House, and is a ‘proceeding’ of

the House. According to Article 194(2), no legal proceedings can be

initiated against any member in respect of the publication, by or under the

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authority of the House, of any report, paper, votes or proceedings. Based

on this, the video which recorded the incident is a publication of the

proceedings of the House and no MLA can face legal action for these

proceedings; and

(ii) The video recording of the incident belongs to the House and a copy of the

video footage could not have been obtained without the sanction of the

Speaker, who is the custodian of the House. In addition to this, the video

recording also lacks certification under Section 65B of the Indian Evidence

Act 1872. Without the video recording, there is insufficient evidence

available with the prosecution to succeed in a trial against the respondentaccused. It is urged that in light of this, a withdrawal of prosecution of this

case is warranted.

67 We shall deal with each of these submissions in turn.

C.5.1 Immunity from publication of proceedings of the House

68 Article 194(1) of the Constitution provides that there shall be freedom of

speech in the Legislature of every State. Clause 2 of Article 194, specifically

provides that no member of the State Legislature shall be liable for any legal

proceedings in respect of anything said or any vote given by him in the

Legislature or any committee thereof, and no person shall be so liable in respect

of the publication by or under the authority of a House of such a Legislature of

any report, paper, votes or proceedings. Mr Ranjit Kumar has sought to take

recourse of the second limb of Article 194(2), to claim that legal proceedings are

barred against respondent-accused for the incident, as it allegedly formed part of

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the ‘proceedings’ of the House, which were published under the authority of the

House.

69 For the second limb of Article 194(2) to be applicable, the following three

elements must be present- first, there must be a publication; second, the

publication must be by or under the authority of the House; and third, the

publication must relate to a report, paper, vote or proceedings.

70 The first question to be addressed in this regard is the meaning of the

phrase ‘publication’ under Article 194(2) of the Constitution. The Oxford

Dictionary defines the term ‘publication’ as the “act of printing a book, a magazine

etc. and making it available to the public.” Thus, in common parlance, publication

refers to print media. At the time of enactment of the Constitution, the members

of the Constituent Assembly would not have envisioned the possibility of

broadcasting of the proceedings of the House through the aid of technology as it

exists at present. The discussions in the Constituent Assembly leading up to the

adoption of the Constitution and the debates were recorded in a typed format and

published. In line with the Constituent Assembly (Legislative) Rules of Procedure

and Conduct of Business, which were in force till the adoption of the Constitution,

the Lok Sabha and Rajya Sabha also adopted Rules of Procedure and Conduct

of Business. Rule 379 of the Lok Sabha Rules records that the Secretary-General

shall prepare a full report of the proceedings of the House and publish it in such

form and manner as the Speaker directs. Similar rules have been adopted by

various State Legislatures, including the Kerala Legislative Assembly which

adopted the Kerala Assembly Rules. Rule 306 of the Kerala Assembly Rules is

pari materia to Rule 379 of the Lok Sabha Rules. Thus, when the Constitution

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was enacted, the phrase ‘publication’ was intended to mean the publication of

proceedings in the printed format.

71 With the advent of technology, proceedings of Parliament and the

Legislative Assembly are broadcast for public viewership, with an aim to promote

accessibility to debates in the legislative body. Correspondingly, the Union and

State Governments enacted legislation and issued instructions to regulate the

field of broadcasting of legislative proceedings. In 1977, the Parliamentary

Proceedings (Protection of Publication) Act, 197744 was enacted. Section 3 of the

Act states that no person shall be liable to any civil or criminal proceeding for a

substantially true publication in a newspaper of the proceedings in the House,

unless the publication is not for public good. Section 4 of the Act extended the

protection to broadcasting of these proceedings. Subsequently, the Constitution

was amended by the Constitution (Forty fourth) Amendment Act, 1978 to include

Article 361A. Article 361A amplifies the protection provided in the 1977 Act.

Article 361A reads as follows:

“361-A . Protection of publication of proceedings of Parliament and

State Legislatures.—(1) No person shall be liable to any

proceedings, civil or criminal, in any court in respect of the

publication in a newspaper of a substantially true report of any

proceedings of either House of Parliament or the Legislative

Assembly, or, as the case may be, either House of the Legislature,

of a State, unless the publication is proved to have been made with

malice: Provided that nothing in this clause shall apply to the

publication of any report of the proceedings of a secret sitting of

either House of Parliament or the Legislative Assembly, or, as the

case may be, either House of the Legislature, of a State.

(2) Clause (1) shall apply in relation to reports or matters

broadcast by means of wireless telegraphy as part of any

programme or service provided by means of a broadcasting

station as it applies in relation to reports or matters published

in a newspaper.

44 “1977 Act”

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Explanation.—In this article, “newspaper” includes a news agency

report containing material for publication in a newspaper.”

(emphasis supplied)

In May 2002, the Kerala Legislative Assembly issued Instructions on

Broadcasting and Telecasting of Governor’s Address and Assembly

Proceedings45 pursuant to Rule 306 of the Kerala Assembly Rules. Thus,

although broadcasting of proceedings was not initially visualised within the

meaning of the word ‘publication’, the meaning of the term ‘publication’ has

evolved in contemporary parlance. Broadcasting of proceedings is also a form of

publication, though not in the form of print, which serves the same purpose of

disseminating information to the public as publication in the printed format.

72 We now turn to the second ingredient of Article 194(2), which is whether

the alleged proceedings were published by or under the authority of the House.

The video recording of the incident was seized from the Electronic Control Room.

Various local and national news channels carried telecasts of snippets of the

incident of 13 March 2015 on the very same day. The 2002 Instructions permit

broadcasting of proceedings after obtaining the prior permission of the Speaker

for recording. Therefore, if permission for recording the proceedings has been

provided to the news channels, then the broadcast would usually be a publication

‘under the authority of the House’. However, Clause 7 of the 2002 Instructions

denies permission to record any interruption/disorder during the address. Clause

7 states:

“7. Cameras should not record any interruption/disorder or walkout during the Address. In case of any such eventuality the

45 “2002 Instructions”

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cameras shall be focussed only on the dignitary.”

Since the 2002 Instructions grant permission for the recording of the proceedings

subject to conditions such as that mentioned in clause 7, any recording that

contravenes the conditions stipulated is not a recording ‘under the authority of the

House’. When the recording of such an incident is itself without authority, the

publication/broadcasting of it would also have no authority of the House. Thus,

though the video recording of the incident that was broadcast in the local and

national news channels would fall within the purview of the word ‘publication’, it

did not have the authority of the House to be recorded, and thus the members

cannot be granted immunity.

73 In addition to this, it is also worth mentioning that the video recording that

was procured from the Electronic Control Room of the Assembly is not a copy of

the broadcast of the incident in the local or national television but was a part of

the internal records of the Assembly. Thus, the stored video footage of the

incident was not broadcast, or in other words, published, for dissemination to the

public. Since it was not a “publication” of the House, it does not enjoy the

protection of immunity under Article 194(2) of the Constitution.

74 Though the argument of the appellants can be rejected at this stage, we

find it necessary to deal with the third ingredient - that is whether the incident that

transpired on 13 March 2015 was a ‘proceeding’ under Article 194(2), thus

bestowing the appellants with absolute immunity.

75 Erskine May defines the phrase ‘parliamentary proceedings’ as follows:

“The primary meaning of proceedings, as a technical parliamentary

term, which it had at least as early as the seventeenth century, is

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some formal action, usually a decision, taken by the House in

its collective capacity. While business which involves actions and

decisions of the House are clearly proceedings, debate is an

intrinsic part of that process which is recognised by its

inclusion in the formulation of article IX. An individual

Member takes part in a proceeding usually by speech, but

also by various recognized forms of formal action, such as

voting, giving notice of a motion, or presenting a petition or

report from a committee, most of such actions being time

saving substitutes for speaking”46

(emphasis supplied)

76 In Attorney General of Ceylon vs de Livera47, Section 14 of the Bribery

Act of Ceylon (as Sri Lanka was then called) was in question before the Judicial

Committee of the Privy Council. Section 14 states that an inducement or reward

to a member of the House of Representatives for doing or forbearing to do any

act ‘in his capacity as such member’ is an offence. While interpreting the phrase

‘in his capacity as such member’, Viscount Radcliffe referred to Article 9 of the

Bill of Rights 1689 which provides parliamentary privilege. The judgment notes:

“What has come under inquiry on several occasions is the extent of

the privilege of a member of the House and the complementary

question, what is a ‘proceeding in Parliament’? This is not the same

question as that now before the Board, and there is no doubt that

the proper meaning of the words ‘proceedings in Parliament’ is

influenced by the context in which they appear in article 9 of the

Bill of Rights; but the answer given to that somewhat more limited

question depends upon a very similar consideration, in what

circumstances and in what situations is a member of the House

exercising his ‘real’ or ‘essential’ function as a member? For,

given the proper anxiety of the House to confine its own or its

members’ privileges to the minimum infringement of the liberties

of others, it is important to see that those privileges do not cover

activities that are not squarely within a member’s true function.”

(emphasis supplied)

46 Supra note 25 at 235. 47 [1963] AC 103.

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Thus, the test that was laid down for identification of activities that fall within the

meaning of the word ‘parliamentary proceedings’ was whether the

activity/function was a real or essential function of the member.

77 In Chaytor (supra), the question before the UK Supreme Court was the

interpretation of the phrase “proceedings in Parliament”. Elucidating on the

meaning of the expression, it was held:

“47. The jurisprudence to which I have referred is sparse and does

not bear directly on the facts of these appeals. It supports the

proposition, however, that the principal matter to which article 9 is

directed is freedom of speech and debate in the Houses of

Parliament and in parliamentary committees. This is where the

core or essential business of Parliament takes place. In

considering whether actions outside the Houses and

committees fall within parliamentary proceedings because of

their connection to them, it is necessary to consider the

nature of that connection and whether, if such actions do not

enjoy privilege, this is likely to impact adversely on the core

or essential business of Parliament.

48. If this approach is adopted, the submission of claim forms for

allowances and expenses does not qualify for the protection of

privilege. Scrutiny of claims by the courts will have no adverse

impact on the core or essential business of Parliament, it will

not inhibit debate or freedom of speech. Indeed it will not

inhibit any of the varied activities in which Members of

Parliament indulge that bear in one way or another on their

parliamentary duties. The only thing that it will inhibit is the

making of dishonest claims.

62. Thus precedent, the views of Parliament and policy all point in

the same direction. Submitting claims for allowances and

expenses does not form part of, nor is it incidental to, the core

or essential business of Parliament, which consists of

collective deliberation and decision making. The submission of

claims is an activity which is an incident of the administration of

Parliament; it is not part of the proceedings in Parliament. I am

satisfied that Saunders J and the Court of Appeal were right to

reject the defendants’ reliance on article 9.”

(emphasis supplied)

According to Chaytor (supra), the activities undertaken within the House are

classified into two categories - essential functions and non-essential functions.

The essential function of the House is collective deliberation and decision

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making. For an act in the House to be provided immunity from legal proceedings,

it must either be an essential function or must affect the exercise of an essential

function of the House.

78 This meaning provided to the phrase ‘parliamentary proceedings’ in

Chaytor (supra) and de Livera (supra) finds support in the text of the

Constitution of India. At this stage, we find it imperative to refer to other

provisions of the Constitution that mention the phrase ‘proceedings’ in reference

to the legislative assembly. Article 194(4) states that the provisions of Articles

194(1), (2) and (3) shall also apply to anybody who takes part in the ‘proceedings’

of the House. Article 212(1) states that the validity of the ‘proceedings’ in the

State Assembly shall not be called in question on the ground of irregularity of the

procedure. In both Articles 194(4) and 212(1) it is evident that the word

‘proceedings’ does not include all the activities inside the House within its

meaning. If the act of the respondent-accused is considered as a ‘proceeding’ on

the ground that the alleged destruction of public property held a nexus with the

budget speech, then it would mean that if a non-member who is called before the

Assembly to depose would also be protected by Article 194(4), if they commit a

similar act as that of the respondent-accused. Similarly, the reference to

‘proceedings’ in Article 212(1) can only mean specific actions such as the

passing of a Bill. What is, however, evident from the above discussion is that the

word ‘proceedings’ will take within it the meaning that is contextually appropriate.

79 To understand the meaning of the word ‘proceedings’ in Article 194(2), it is

necessary that we look at the context of the provision. Article 194(1) states that

the members of the House shall have freedom of speech in the legislature. The

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freedom of speech that is provided to the members is subject to the provisions of

the Constitution and other standing orders. It was held in P.V. Narasimha Rao

(supra) that the freedom of speech provided to the members of the House is

absolute and independent of Article 19 of the Constitution, and that the freedom

of speech of the members inside the House cannot be restricted by the

reasonable restrictions provided in Article 19(2) of the Constitution. Thus,

although the members of the House are restricted from discussing the conduct of

a Judge of the Supreme Court or High Court in the discharge of their duties, but

they cannot be precluded from undertaking any discussion on the grounds of

violation of Article 19(2) of the Constitution.

80 Article 194(2), as mentioned above, is divided into two limbs. The first limb

of Article 194(2) which provides the members absolute immunity with respect of

anything said or any vote given in the House is a manifestation of the freedom of

speech provided under Article 194(1). The second limb of Article 194(2) gives the

members immunity in respect of the publication of ‘any report, paper, votes, or

proceedings’ by or under the authority of the house. The legal immunity to

‘anything said or any vote given’ in the first limb and the ‘publication of a report,

paper, votes, or proceedings’ in the second limb of Article 194(2), flow from the

freedom of speech that is provided under Article 194(1). The exercise of these

manifestations of the freedom of speech – as provided in Article 194(2) – has

been provided with express immunity. However, the only difference between the

two limbs of Article 194(2) is that the first limb protects the exercise of the

freedom, and the second limb protects the member against the publication of the

said exercise of the freedom. The legal proceedings against the exercise of the

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freedom can only be initiated by those aware of the exercise of freedom, which

would mean either those who are present in the House or those who become

aware of it when the speech, vote or the like, is published. While the freedoms

protected by both the limbs are substantively the same, the second limb is

clarificatory in the sense that it prevents ‘any person’ from initiating proceedings

against the exercise of freedom of speech inside the House when they obtain

knowledge of the exercise of the said freedom through a publication. Thus, the

immunity provided for the exercise of the manifestations of the freedom of speech

in the second limb of under Article 194(2) cannot exceed the freedom of speech

provided in the first limb of Article 194(2). As held above, that acts of destruction

of public property are not privileged under the first limb of Article 194(2).

Consequently, acts of vandalism cannot be said to be manifestations of the

freedom of speech and be termed as “proceedings” of the Assembly. It was not

the intention of the drafters of the Constitution to extend the interpretation of

‘freedom of speech’ to include criminal acts by placing them under a veil of

protest. Hence, the Constitution only grants the members the freedom of speech

that is necessary for their active participation in meaningful deliberation without

any fear of prosecution.

81 Moreover, the word ‘proceedings’ in Article 194(2) follows the words ‘any

report, paper, votes’. Reports, papers and votes are actions that are undertaken

by the members of the Assembly in their official capacity for participation and

deliberation in the House. These are essential functions that a member has to

perform in order to discharge her duty to the public as their elected

representative. On application of the interpretative principle of noscitur a sociis,

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the phrase ‘proceedings’ takes colour from the words surrounding it. Since the

words associated with the phrase ‘proceedings’ refer to actions that are exercised

by the members in their official capacity, in furtherance of their official functions,

the meaning of the word ‘proceedings’ must also be restricted to only include

such actions.

82 Accordingly, we reject the submissions of the appellant and hold that the

video recording of the incident was not a “proceeding” of the Assembly, which

would be protected from legal proceedings under Article 194(2).

C.5.2 Inadmissibility of the video recording as evidence

83 Mr Ranjit Kumar, learned Senior counsel, has urged before us that the

video recording was not obtained by the investigating authorities with the

sanction of the Speaker. He has submitted that the video recording belongs to

the Electronic Record Room of Assembly and as the custodian of the House, the

permission of the Speaker is necessary to access this video recording. It was

also submitted that the video recording lacks the certification required for

admissibility of evidence.

84 We do not believe that this submission is relevant and merits consideration

by this Court in an application for withdrawal of prosecution under Section 321 of

the CrPC. In our opinion, the High Court has correctly observed that questions of

insufficiency of evidence, admissibility of evidence absent certifications etc., are

to be adjudged by the trial court during the stage of trial. As held by the

Constitution Bench of this Court in Sheonandan Paswan (supra), it is not the

PART C

duty of this Court, in an application under Section 321 of the CrPC, to adjudicate

upon evidentiary issues and examine the admissibility or sufficiency of evidence.

85 For the reasons indicated above, we have arrived at the conclusion that

there is no merit in the appeals. The appeals shall accordingly stand dismissed.

86 Pending application(s), if any, stand disposed of.

…………...…...….......………………........J.

[Dr Dhananjaya Y Chandrachud]

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

[M R Shah]

New Delhi;

July 28, 2021

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Thursday, July 29, 2021

declining to grant permission to the Public Prosecutor to withdraw the prosecution of the first to sixth respondents under Section 321 of the CrPC.