LAW FOR ALL

Thursday, December 22, 2016

published a post on his Facebook Page in respect of Mahatma Gandhi, Father of the Nation. The post was entitled “Gandhi – A British Agent” and stated that Mahatma Gandhi did great harm to India. On the same date, another post was published by the petitioner on his Facebook Page in respect of Netaji Subhash Chandra Bose referring to him as an agent of Japanese fascism = These posts evoked immediate response and on 11.03.2015, discussion took place in Rajya Sabha. At the end of the discussion, a Resolution was moved by the Chairman of Rajya Sabha which was passed unanimously by the House. The Resolution was to the following effect :- “This House expresses its unequivocal condemnation of the recent remarks of the former judge of the Supreme Court, Shri Justice Markandey Katju, against the Father of the Nation Mahatma Gandhi and Netaji Subhash Chandra Bose led the Indian National Army for the freedom of the country“I therefore request both Houses of Parliament, through you, to recall the resolutions and apologize to me, or else to suspend the resolutions and give me an opportunity of hearing, personally or through my lawyer...

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.504 OF 2015

Justice (Retd.) Markandey Katju ……Petitioner

Versus

The Lok Sabha & Anr. …. Respondents

JUDGMENT

Uday Umesh Lalit J.

This petition under Article 32 seeks quashing

of Resolution dated 11.03.2015 passed by Rajya Sabha and Resolution dated
12.03.2015 passed by Lok Sabha. In the alternative, it is also prayed that
the Houses of Parliament be directed to give to the petitioner post
decisional hearing.

2. On 10.03.2015, the petitioner, a former Judge of this Court published
a post on his Facebook Page in respect of Mahatma Gandhi, Father of the
Nation. The post was entitled “Gandhi – A British Agent” and stated that
Mahatma Gandhi did great harm to India. On the same date, another post was
published by the petitioner on his Facebook Page in respect of Netaji
Subhash Chandra Bose referring to him as an agent of Japanese fascism.

3. These posts evoked immediate response and on 11.03.2015, discussion
took place in Rajya Sabha. At the end of the discussion, a Resolution was
moved by the Chairman of Rajya Sabha which was passed unanimously by the
House. The Resolution was to the following effect :-
“This House expresses its unequivocal condemnation of the recent remarks of
the former judge of the Supreme Court, Shri Justice Markandey Katju,
against the Father of the Nation Mahatma Gandhi and Netaji Subhash Chandra
Bose led the Indian National Army for the freedom of the country.

4. On the next day, discussion also took place in Lok Sabha whereafter
the following Resolution was passed by Lok Sabha on 12.03.2015:-
“Father of the Nation Mahatma Gandhi and Netaji Shri Subhash Chandra Bose
both are venerated by the entire country. The contribution of these two
great personalities to the freedom struggle of the country and their
dedication is unparalleld. The statement given by the former Judge of
Supreme Court and former Chairman of Press Council of India Shri Markandey
Katju is deplorable. This House unequivocally condemns the statement given
by former Judge of Supreme Court Shri Markandey Katju unanimously.”

5. On 23.03.2015, the petitioner sent e-mails to the Chairman, Rajya
Sabha and to the Speaker, Lok Sabha that the aforesaid Resolutions
condemning his statements on Mahatma Gandhi and Netaji Subhash Chandra Bose
were passed by Rajya Sabha and Lok Sabha without giving him any opportunity
of hearing and that rules of Natural Justice required that he should have
been given an opportunity of hearing. The petitioner, therefore, stated:-
“I therefore request both Houses of Parliament, through you, to recall the
resolutions and apologize to me, or else to suspend the resolutions and
give me an opportunity of hearing, personally or through my lawyer.

6. Since the petitioner did not receive any response from either the
Chairman, Rajya Sabha or the Speaker, Lok Sabha, he has filed the present
petition. The petition states that it does not seek any relief against any
Member of Parliament individually but the Resolutions in question do not
fulfill jurisdictional requirement, and that whether the statements are
deplorable or condemnable can be judged only by bodies performing judicial
function and cannot be decided by Rajya Sabha or Lok Sabha. The petition
prays for quashing of the aforesaid Resolutions. On 03.08.2015, this
Court while granting fuller opportunity to the petitioner to make
submissions on the points in question, requested Mr. Fali S. Nariman,
Senior Advocate to assist this Court as Amicus Curiae and also requested
Mr. Mukul Rohatgi, Attorney General to appear and make his submissions.

A written note was filed on behalf of the petitioner framing certain
questions and making submissions in respect thereto. The questions so
framed and the gist of the submissions are:-
“I. Does Article 19(1)(a) of the Constitution of India guarantee an
individual the freedom to hold and publicly express dissenting opinions?

….. it is submitted that Article 19(1)(a) of the Constitution of India
guarantees to an individual the freedom to hold and publicly express
dissenting opinions without fear of any form. It is the duty of the
Legislature to respect and promote respect for such a right and not to
curtail the same, either by enacting legislations that run contrary to
Article 19(2) or to pass a resolution, condemning the exercise of such free
speech.

II. Whether Parliament can in the absence of a ‘law’ framed under Article
19(2) of the Constitution of India exercise jurisdiction over an
individual and express disapproval for the opinions expressed by him or
her?

…..It is submitted that in exercise of privilege, the petitioner’s
publications and comments could be subject matter of discussion in
Parliament, as Parliament is free to discuss any matter. However, it is not
open to Parliament to condemn the petitioner and his remarks as doing such
an act is not in aid of functioning of Parliament….

…..In exercise of its powers, Parliament can imprison, admonish or
reprimand a “stranger” only when doing so is necessary for functioning of
the House. It is submitted that condemnation or disapproval is synonymous
with admonishing or reprimanding an individual…..

…..A “stranger” who makes a speech outside the house, especially not
connected with the functioning of Parliament and not derogatory to
Parliament, could not be taken notice of by Parliament to punish him…..

III. Whether the privilege under Article 105(1) of the Constitution is
intended to secure freedom of expression within Parliament or can it be
exercised for the purpose of silencing dissenting opinions which are a part
of fundamentally guaranteed freedoms under Article 19(1) (a) of the
Constitution?

…..Therefore, when Parliament is claiming a privilege, what is to be
considered is whether Parliament is claiming the privilege in respect of an
act which is fundamental to its functioning. Unless the answer is in
affirmative, the claim of privilege is to be disallowed…..

…..The power available with the House to deal with a stranger is only in
relation to contempt of the House and where the act complained of
interferes with the functioning of the House…..

…..At this present stage, it is necessary to point out that there is no
evidence on record or otherwise to suggest that the remarks of the
petitioner in the present case affected the functioning or the reputation
of either House of Parliament. Thus, the very initiation of action against
the individual petitioner is without jurisdiction. In fact, even the text
of the resolution is silent on the said aspect…..

IV. Whether either House of Parliament could condemn any individual or his
expression of his speech; when such individuals were not discharging duties
in public capacity and where the speech does not interfere with the
functioning of Parliament.

The impugned resolutions passed by the Lok Sabha and Rajya Sabha condemn
certain statements made by the petitioner, who is a retired judge of the
Supreme Court, and former Chairman of the Press Council of India, purely in
his private capacity. Further, the resolutions were passed the very next
day after the aforesaid statements were made public without even giving the
petitioner an opportunity to present his response to either of the House
and without taking into consideration the entire analysis of the petitioner
including the underlying literature and viewpoints of various scholars…..

…..Keeping in mind that the above rules stem from an express provision of
the Constitution, and further, that these Rules are subject to the mandate
of the Constitution, the import of the above extracted rules, may be
summarized as follow: First, the subject matter of the resolution being
moved must be one of the general public interest. Second, a resolution
condemn can only be directed at an act of Government. Third, the
resolution shall not contain arguments, inferences, ironical expressions,
imputations or defamatory statements. Fourth, it shall not refer to the
conduct or character of persons except in their official or public
capacity. Fifth, the required notice period of two days has not been
complied with….

V. In the event Parliament did have the requisite jurisdiction, could it
have passed a resolution without giving an opportunity of hearing to the
petitioner?”

……Assuming but not conceding that Parliament did have the requisite
jurisdiction, a resolution could not have been passed condemning the
petitioner’s views without even giving an opportunity of hearing and taking
into consideration the entire material before reaching such an adverse
conclusion…..”

8. Mr. F. S. Nariman, learned Amicus Curiae placed on record a brief note
of submissions, submitting inter alia:-
“It is respectfully submitted that the questions raised in the
petition are no longer res integra. They stand concluded by a decision of
this Hon’ble Court reported in 1970 (2) SCC 272 (Bench of 6 Hon’ble Judges)-
upholding a full Bench decision (of 5 Hon’ble Judges) of the High Court of
Delhi; (reported in AIR 1971 Delhi 86)- and declaring (in paragraph 8)[1] :-

“The Article (105) confers immunity inter alia in respect of “anything
said……. in Parliament”. The word ‘anything’ is of the widest import and is
equivalent to ‘everything’. The only limitation arises from the words ‘in
Parliament’ which means during the sitting of Parliament and in the course
of the business of Parliament. We are concerned only with speeches in Lok
Sabha. Once it was proved that parliament was sitting and its business was
being transacted, anything said during the course of that business was
immune from proceedings in any Court, this immunity is not only complete
but is as it should be. It is of the essence of parliamentary system of
Government that people’s representatives should be free to express
themselves without fear of legal consequences. What they said is only
subject to the discipline of the rules of Parliament, the good sense of the
members and the control of proceedings by the Speaker. The Courts have no
say in the matter and should really have none.”

and

“As was said in Keshav Singh-1965 (1) SCR 413 at 441-442 (Bench of 7
Judges)-quoted in AIR 1971 Delhi 86-clause (2) of Article 194 (as also
clause (2) of Article 105) “makes it plain that the freedom (of speech) is
literally absolute and unfettered”.

9. Mr. Mukul Rohatgi, learned Attorney General in his written note
submitted:-
“The petition under Article 32 is not maintainable

No fundamental right of the petitioner, the sine qua non of a petition
under Article 32 of the Constitution, has been breached.

The petitioner had expressed an opinion which caused grave anguish to right
thinking people, including the elected representatives of the people. He
fully exercised his constitutionally guaranteed right under Article
19(1)(a). The resolution merely condemns his statement without visiting any
other consequence upon the petitioner. There is thus no violation of his
fundamental right to speech. The right to speech does not include a right
to immunity from criticism.

There is no violation of Article 21. The resolution does not defame the
petitioner. It is an expression of opinion by the House. Just as the
petitioner has his opinion, so do members of the House. In fact, it is the
petitioner who has defamed the Father of the Nation and Netaji, both
illustrious sons of the soil. The first explanation to Section 499 IPC may
be seen. The petitioner, in other words, seeks to make defamatory
statements and is unable to bear criticism by other members of the House.

Immunity of House Proceedings

The present petition, as can be seen from the Memo of Parties, has been
filed against the Houses of Parliament. There is complete freedom of speech
in the Houses as guaranteed by Article 105 of the Constitution of India. It
is submitted that the right guaranteed under Article 105 cannot be
abridged, curtailed or called into question in any Court of law. Any
attempt to do so would violate the sanctity of free parliament proceedings.
Freedom of Speech in the House is not subject to restrictions placed under
Article 19 (2) of the Constitution.

The proceedings of the House, as well as the officers of the House, have
immunity from being proceeded against in any Court of law, inter alia under
Article 122(2) of the Constitution. The only restriction on free speech
within Parliament is covered by Article 121 of the Constitution and the
good sense of Vice-President (Rajya Sabha) and the Speaker (Lok Sabha) to
regulate the business of the House.

The Resolution merely expresses an opinion

The various rules of procedure make it clear that the nature of the
Resolution was one without any statutory effect. It was merely an
expression of opinion of the House. This is within the domain of the
freedom of the House. Since the petitioner was visited with no civil
consequences, there is no occasion for him to be heard. To contend
otherwise would completely stymie the functioning of Parliament.

This Hon’ble Court ought not to exercise its discretion in this matter.

The petitioner has been a constitutional functionary, a judge of the Apex
Court. It is unbecoming of anybody including the holder of constitutional
posts to make scandalous remarks against the father of the Nation and
Netaji. This Court ought to summarily reject the petition in exercise of
its discretion under Article 32 of the Constitution.”

10. The petitioner filed written response to the issue of maintainability
and submitted as under:
(a) “….while Parliament is free to discuss any person or conduct of any
person, Parliament usually does not discuss the statements made by persons
who are not public servants. Even if Parliament does discuss the
statements made by private persons, it is not open to it to pass
resolutions to condemn such persons or their statements. Parliament is not
expected to take cognizance of statements of private persons. This is
rather clear from a bare reading of the Rajya Sabha Rules as well as Lok
Sabha Rules which do not allow for any resolution to be passed in respect
of private citizens. In fact, passing a resolution to condemn the
petitioner or his statements, even in respect of ‘historically respected
personalities’ is not necessary for functioning of Parliament. Thus, there
can be no claim to legislative privilege in that regard.

(b) … as opposed to the facts in Tej Kiran Jain where the Members of
Parliament had been sued personally, in the present case, the petitioner
makes no claim against any Members.

(c) … the claim in Tej Kiran Jain emanated from Article 105(2) of the
Constitution which confers absolute freedom on the Members of the House.
On the other hand, in the present case the resolutions have been passed by
the Houses of the Parliament, which certainly do not fall within the plain
words of “anything said or vote given”. It is submitted that impugned
resolutions have been passed in exercise of powers conferred on the houses
of Parliament by Article 105(3) of the Constitution….”

11. We heard Mr. Gopal Subramanium, learned Senior Advocate for the
petitioner, Mr. Mukul Rohtagi, learned Attorney General for the respondents
and Mr. Fali S. Nariman, learned Senior Advocate -Amicus Curiae who
assisted the Court. We are grateful for the assistance rendered by all the
learned counsel.

12. Before we turn to consider the matter, we may quote Article 105 as
well as Articles 121 and 122 of the Constitution:-
“105. Powers, privileges, etc of the Houses of Parliament and of the
members and committees thereof:

(1) Subject to the provisions of this Constitution and the rules and
standing orders regulating the procedure of Parliament, there shall be
freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedings in any court
in respect of anything said or any vote given by him in Parliament or any
committee thereof, and no person shall be so liable in respect of the
publication by or under the authority of either House of Parliament of any
report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of each House
of Parliament, and of the members and the committees of each House, shall
be such as may from time to time be defined by Parliament by law, and,
until so defined shall be those of that House and of its members and
committees immediately before the coming into force of Section 15 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 Parliament or any
committee thereof as they apply in relation to members of Parliament.

121. Restriction on discussion in Parliament

No discussions shall take place in Parliament with respect to the conduct
of any Judge of the Supreme Court or of a High Court in the discharge of
his duties expect upon a motion for presenting an address to the President
praying for the removal of the Judge as hereinafter provided.

122. Courts not to inquire into proceedings of Parliament

(1) The validity of any proceedings in Parliament shall not be called in
question on the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers are vested by or
under this Constitution for regulating procedure or the conduct of
business, or for maintaining order, in Parliament shall be subject to the
jurisdiction of any court in respect of the exercise by him of those
powers. ”

The comparable articles as regards Powers, Privileges and Immunities of
Houses of State Legislature, are Articles 194, 211 and 212 of the
Constitution.

13. In terms of Article 118 of the Constitution, both Houses of
Parliament have made rules for regulating their procedure and conduct of
business. Chapter 11 of “Rules of Procedure and Conduct of Business in the
Council of States (Rajya Sabha)” (hereinafter referred to as “Rajya Sabha
Rules”) deals with subject “Resolutions” and the relevant Rules are:-
“CHAPTER XI
RESOLUTIONS

154. Notice
A member other than a Minister who wishes to move a resolution on a day
allotted for private members’ resolutions, shall give a notice to that
effect at least two days before the date of draw of lot. The names of all
members from whom such notices are received shall be drawn by lot and those
members who secure the first five places in the draw of lot for the day
allotted for private members’ resolutions shall be eligible to give notice
of one resolution each within ten days of the date of the draw of lot.

155. Form
A resolution may be in the form of a declaration of opinion by the Council
or in such other form as the Chairman may consider appropriate.

156. Subject-matter
Subject to the provisions of these rules, any member may move a resolution
relating to a matter of general public interest.

157. Conditions of admissibility
In order that a resolution may be admissible, it shall satisfy the
following conditions, namely:—
(i) it shall be clearly and precisely expressed;
(ii) it shall raise substantially one definite issue;
(iii) it shall not contain arguments, inferences, ironical expressions,
imputations or defamatory statements;
(iv) it shall not refer to the conduct or character of persons except in
their official or public capacity; and
(v) it shall not relate to any matter which is under adjudication by a
court of law having jurisdiction in any part of India.

158. Chairman to decide admissibility
The Chairman shall decide on the admissibility of a resolution, and may
disallow a resolution or a part thereof when in his opinion it does not
comply with these rules.”

14. Similarly Chapter 13 of “Rules of Procedure and Conduct of Business
in Lok Sabha” (hereinafter referred to as Lok Sabha Rules) deals with
subject “Resolutions” and the relevant Rules in that Chapter are:-
CHAPTER XIII

Notice of Resolution
170. A member other than a Minister who wishes to move a resolution on a
day allotted for private members’ resolutions, shall give a notice to that
effect at least two days before the date of ballot. The names of all
members from whom such notices are received shall be balloted and those
members who secure the first three places in the ballot for the day
allotted for private members’ resolutions shall be eligible to give notice
of one resolution each within two days after the date of the ballot.

Form of Resolution
171. A resolution may be in the form of a declaration of opinion, or a
recommendation; or may be in the form so as to record either approval or
disapproval by the House of an act or policy of Government, or convey a
message; or commend, urge or request an action; or call attention to a
matter or situation for consideration by Government; or in such other form
as the Speaker may consider appropriate.

Subject matter of Resolution
172. Subject to the provisions of these rules, a member or a Minister may
move a resolution relating to a matter of general public interest.

Admissibility of Resolution
173. In order that a resolution may be admissible, it shall satisfy the
following conditions, namely:—
(i) it shall be clearly and precisely expressed;
(ii) it shall raise substantially one definite issue;
(iii) it shall not contain arguments, inferences, ironical expressions,
imputations or defamatory statements;
(iv) it shall not refer to the conduct or character of persons except in
their official or public capacity; and
(v) it shall not relate to any matter which is under adjudication by a
court of law having jurisdiction in any part of India.

Speaker to decide Admissibility
174. The Speaker shall decide whether resolution or a part thereof is or is
not admissible under these rules and may disallow any resolution or a part
thereof when the Speaker is of the opinion that it is an abuse of the right
of moving a resolution or calculated to obstruct or prejudicially affect
the procedure of the House or is in contravention of these rules.”

15. Before we deal with the questions raised by the petitioner, issue of
maintainability of this Writ petition must be addressed. According to the
petitioner, the reliance on the ratio in Tej Kiran Jain and others v. N.
Sanjiva Reddy and others[2] is confined to cases where individual Members
of Parliament are sued and will not cover cases where resolution(s) of the
House(s) are called in question while according to the learned Amicus
Curiae the issue stands fully covered by Tej Kiran Jain (supra).

16. The historical background including the discussions in the
Constituent Assembly regarding draft Article 85, which Article corresponds
to Article 105 of the Constitution has been dealt with in extenso by this
Court in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha[3] in paragraphs 111
to 127 of its judgment and for the present purposes, we may quote paras 111
and 112:-
“111. Dr. Ambedkar, the Chairman of the Drafting Committee of the
Constitution, while mooting for the parliamentary system similar to the one
obtaining in England noted, in the course of debates in the Constituent
Assembly, that in the latter jurisdiction, the parliamentary system relies
on the daily assessment of responsibility of the executive by Members of
Parliament, through questions, resolutions, no-confidence motions and
debates and periodic assessment done by the electorate at the time of
election; unlike the one in the United States of America, a system far more
effective than the periodic assessment and far more necessary in a country
like India. India thus adopted parliamentary constitutional traditions.

112. The concept of parliamentary privileges in India in its modern form
is indeed one of graft, imported from England. The House of Commons having
been accepted by the Constituent Assembly as the model of the legislature,
the privileges of that House were transplanted into the Draft Constitution
through Articles 105 and 194.”

17. As regards “freedom of speech and debates or proceedings in
Parliament”, this Court in Special Reference No. 1 of 1964 (Keshav Singh’s
case)[4] in paragraph No 72 observed:-
“72. It would be relevant at this stage to mention broadly the main
privileges which are claimed by the House of Commons. Freedom of speech is
a privilege essential to every free council or legislature, and that is
claimed by both the Houses as a basic privilege. This privilege was from
1541 included by established practice in the petition of the Commons to the
King at the commencement of the Parliament. It is remarkable that
notwithstanding the repeated recognition of this privilege, the Crown and
the Commons were not always agreed upon its limits. This privilege received
final statutory recognition after the Revolution of 1688. By the 9th
Article of the Bill of Rights, it was declared “that the freedom of speech,
and debates or proceedings in Parliament, ought not to be impeached or
questioned in any court or place out of Parliament”.

18. “Freedom of Speech” in discussion and debates in the House, which was
so statutorily recognized by Article 9 of the Bill of Rights Act, 1688 in
the United Kingdom, found expression in specific terms in sub-section (7)
of Section 67 of the Government of India Act, 1915 which declared, “Subject
to the rules and standing orders affecting the chamber, there shall be
freedom of speech in both chambers of the Indian Legislature. No person
shall be liable to any proceedings in any court by reason of his speech or
vote in either chamber …….”. Section 71 of the Government of India Act,
1935 dealt with “Privileges etc. of members of Provincial Legislatures” and
sub-section (1) thereof provided:
“Subject to the provisions of this Act and to rules and standing orders
regulating the procedure of the Legislature, there shall be freedom of
speech in every Provincial Legislature and no member of the Legislature
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…….”

Section 86(1) of the Government of India Act, 1935 prohibited discussion in
the Provincial Legislature regarding the conduct of any Judge of the
Federal Court or High Court in the discharge of his duties while in terms
of Section 87, the validity of any proceedings in a Provincial Legislature
could not be called in question on the ground of any alleged irregularity
of procedure. The Indian Independence Act, 1947 conferred sovereign
legislative power on the Indian Dominion Legislature. India (Provisional
Constitution) Order, 1947, issued by the Governor General of India on
14.08.1947 made large scale amendments to the Government of India Act,
1935, the important being Sections 28, 38, 40 and 41 which were brought
into force for the first time. Sub-sections (1) and (2) of Section 28 were
as under:
“(1) Subject to the provisions of this Act and to the rules and standing
orders regulating the procedure of the Dominion Legislature there shall be
freedom of speech in the Legislature, and no member of the Legislature
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
authority of the Legislature of any report, paper, votes or proceedings.

(2) In other respects, the privileges of members of the Dominion
Legislature and, until so defined, shall be such as were immediately before
the establishment of the Dominion enjoyed by members of the Indian
Legislature.”

The substantive provisions of aforesaid Section 28 find reflected in
draft Article 85 which was debated upon in the Constituent Assembly. This
part is extensively dealt with by this Court in paragraphs 111 to 127 in
its judgment in Raja Ram Pal (supra).

19. We now turn to the ambit and extent of “freedom of speech in
Parliament” expressly conferred under Article 105 of the Constitution.
While dealing with first three clauses of Article 194 of the Constitution
(which are identical in substance to that of Article 105 in its application
to Parliament), this Court in Keshav Singh’s case (supra) observed as
under:-
“30. It will be noticed that the first three material clauses of Article
194 deal with three different topics. Clause (1) makes it clear that the
freedom of speech in the legislature of every State which it prescribes, is
subject to the provisions of the Constitution, and to the rules and
standing orders, regulating the procedure of the legislature. While
interpreting this clause, it is necessary to emphasize that the provisions
of the Constitution to which freedom of speech has been conferred on the
legislators, are not the general provisions of the Constitution but only
such of them as relate to the regulation of the procedure of the
legislature. The rules and standing orders may regulate the procedure of
the legislature and some of the provisions of the Constitution may also
purport to regulate it; these are, for instance, Articles 208 and 211. The
adjectival clause “regulating the procedure of the legislature” governs
both the preceding clauses relating to “the provisions of the Constitution”
and “the rules and standing orders”. Therefore, clause (1) confers on the
legislators specifically the right of freedom of speech subject to the
limitation prescribed by its first part. It would thus appear that by
making this clause subject only to the specified provisions of the
Constitution, the Constitution-makers wanted to make it clear that they
thought it necessary to confer on the legislators freedom of speech
separately and, in a sense, independently of Article 19(1)(a). If all that
the legislators were entitled to claim was the freedom of speech and
expression enshrined in Article 19(1)(a), it would have been unnecessary to
confer the same right specifically in the manner adopted by Article 194(1);
and so, it would be legitimate to conclude that Article 19(1)(a) is not one
of the provisions of the Constitution which controls the first part of
clause (1) of Article 194.

31. Having conferred freedom of speech on the legislators, clause (2)
emphasizes the fact that the said freedom is intended to be absolute and
unfettered. Similar freedom is guaranteed to the legislators in respect of
the votes they may give in the legislature or any committee thereof. In
other words, even if a legislator exercises his right of freedom of speech
in violation, say, of Article 211, he would not be liable for any action in
any court. Similarly, if the legislator by his speech or vote, is alleged
to have violated any of the fundamental rights guaranteed by Part III of
the Constitution in the Legislative Assembly, he would not be answerable
for the said contravention in any court. If the impugned speech amounts to
libel or becomes actionable or indictable under any other provision of the
law, immunity has been conferred on him from any action in any court by
this clause. He may be answerable to the House for such a speech and the
Speaker may take appropriate action against him in respect of it; but that
is another matter. It is plain that the Constitution-makers attached so
much importance to the necessity of absolute freedom in debates within the
legislative chambers that they thought it necessary to confer complete
immunity on the legislators from any action in any court in respect of
their speeches in the legislative chambers in the wide terms prescribed by
clause (2). Thus, clause (1) confers freedom of speech on the legislators
within the legislative chamber and clause (2) makes it plain that the
freedom is literally absolute and unfettered.”

20. Similarly, while dealing with Article 105 of the Constitution
in P.V. Narasimha Rao v. State (CBI/SPE)[5], Justice S.P. Bharucha (as the
learned Chief Justice then was)[6] speaking for majority, observed as
under:-
“109. By reason of sub-article (1) of Article 105, Members of Parliament
enjoy freedom of speech subject only to the provisions of the Constitution
and the rules and standing orders regulating the procedure of Parliament.
That express provision is made for freedom of speech in Parliament in sub-
article (1) of Article 105 suggests that this freedom is independent of the
freedom of speech conferred by Article 19 and unrestricted by the
exceptions contained therein. This is recognition of the fact that Members
need to be free of all constraints in the matter of what they say in
Parliament if they are effectively to represent their constituencies in its
deliberations. Sub-article (2) of Article 105 puts negatively what sub-
article (1) states affirmatively. Both sub-articles must be read together
to determine their content. By reason of the first part of sub-article (2)
no Member is answerable in a court of law or any similar tribunal for what
he has said in Parliament. This again is recognition of the fact that a
Member needs the freedom to say what he thinks is right in Parliament
undeterred by the fear of being proceeded against. A vote, whether cast by
voice or gesture or the aid of a machine, is treated as an extension of
speech or a substitute for speech and is given the protection that the
spoken word has. Two comments need to be made in regard to the plain
language of the first part of sub-article (2). First, what has protection
is what has been said and a vote that has been cast, not something that
might have been said but was not, or a vote that might have been cast but
was not. Secondly, the protection is broad, being “in respect of”. It is so
given to secure the freedom of speech in Parliament that sub-article (1)
provides for. It is necessary, given the role Members of Parliament must
perform. The protection is absolute against court proceedings that have a
nexus with what has been said, or a vote that has been cast in Parliament.
The second part of sub-article (2) provides that no person shall be liable
to any proceedings in any court in respect of the publication of any
report, papers, votes or proceedings if the publication is by or under the
authority of either House of Parliament. A person who publishes a report or
papers or votes or proceedings by or under the authority of Parliament is
thereby given protection in the same broad terms against liability to
proceedings in any court connected with such publication. The Constitution
having dealt with the all-important privilege of Members of Parliament to
speak and vote therein as they deem fit, freed of the fear of attracting
legal proceedings concerning what they say or how they vote, provides for
other powers, privileges and immunities in sub-article (3). Till defined by
Parliament by enactment, they are such as were enjoyed before the
Constitution came into force, that is to say, they are such as were enjoyed
by the House of Commons just before 26-1-1950. For it to be established
that any power, privilege or immunity exists under sub-article (3), it must
be shown that that power, privilege or immunity had been recognised as
inhering in the House of Commons at the commencement of the Constitution.
So important was the freedom to speak and vote in Parliament thought to be
that it was expressly provided for, not left to be gathered, as other
powers, privileges and immunities were, from the House of Commons. Insofar
as the immunity that attaches to what is spoken in Parliament and to a vote
given therein is concerned, provision is made in sub-article (2); it is
only in other respects that sub-article (3) applies. For the sake of
completeness, though we are not here concerned with it, we must add that
sub-article (4) gives the protection of the sub-articles that preceded it
to all who have the right to address the House, for example, the Attorney
General.”

21. The observations of this Court in the aforesaid cases make it clear
that “freedom of speech in Parliament” is absolute and unfettered; that the
freedom of speech so conferred is subject only to such of the provisions of
the Constitution which relate to regulation of procedure in Parliament;
that this is recognition of the fact that Members need to be free of all
constraints of what they say in Parliament; that clause (2) of Article 105
puts negatively what clause (1) states affirmatively; that both clauses
must be read together to determine their content; that a vote, whether
cast by voice or gesture is an extension of speech or a substitute for
speech; that what has protection under these sub-Articles is what has been
said and a vote that has been cast; that the protection is broad, being “in
respect of”; that if the impugned speech amounts to libel or becomes
actionable or indictable under any provision of law, immunity has been
conferred from any action in any Court; and that the Constitution makers
attached so much importance to the absolute freedom in debates that they
thought it necessary to confer complete immunity on the legislators from
any action in any Court in respect of their speeches.

22. As against clauses (1) and (2) of Article 105 which guarantee
“freedom of speech in Parliament” and correspondingly provide for complete
immunity, the other privileges as per clause (3) are those which shall be
such as may from time to time be defined by Parliament by law and until so
defined shall be those of that House and of its Members and Committees
immediately before coming into force of Section 15 of the Constitution
(44th Amendment) Act, 1978. “Freedom of speech” in the House is considered
so sacrosanct and essential for the very functioning of the House that it
finds specific mention with the immunity clearly specified. The absolute
nature of such freedom of speech weighed with this Court in Tej Kiran Jain
(supra), when a Bench of six Hon’ble Judges of this Court held that the
expression “anything” is of widest import and is equivalent to “everything”
and that the only limitation arose from the expression “in Parliament”
which meant during the sitting of Parliament and in the course of business
of Parliament. This Court observed:-
“Once it was proved that parliament was sitting and its business was being
transacted, anything said during the course of that business was immune
from proceedings in any Court this immunity is not only complete but is as
it should be. It is of the essence of parliamentary system of Government
that people’s representatives should be free to express themselves without
fear of legal consequences. What they said is only subject to the
discipline of the rules of Parliament, the good sense of the members and
the control of proceedings by the Speaker. The Courts have no say in the
matter and should really have none.”

23. The question therefore is, whether the aforementioned observations are
confined to individual members.

24. In so far as debates or discussion in the Houses of Parliament are
concerned, the only substantive restriction found in the Constitution is in
Article 121 of the Constitution which specifically mandates that no
discussion shall take place in Parliament in respect of the conduct of any
Judge of the Supreme Court or of a High Court in the discharge of his
duties. Barring such provision under Article 121, the Constitution has
placed no restriction on what can be debated or discussed in Parliament.
It is completely left to the wisdom or discretion of the individual Houses
and the presiding authorities in terms of the Rules of Procedure of each
House. It is for this reason that this Court in Keshav Singh’s case
(supra) observed that the “freedom of speech in Parliament” is subject only
to such provisions of the Constitution and to the rules and standing orders
regulating the procedure of Parliament. Substantively, apart from Article
121, the Constitution itself places no restriction on the subject matter of
discussion or debate.

25. The history of parliamentary privileges as found by this Court in the
aforementioned cases shows that the privileges have been defined as the sum
of the fundamental rights of the House and of its individual Members inter
alia, as against the prerogatives of the Crown and the authority of the
ordinary courts of law, that the term privilege denotes certain fundamental
rights of each House which are generally accepted as necessary for the
exercise of its constitutional functions, and that the privileges of
Parliament are rights which are absolutely necessary for the due execution
of its powers. The privileges are enjoyed by individual Members, because
the House cannot perform its functions without unimpeded use of the
services of its Members, and by each House for the protection of its
Members and the vindication of its own authority and dignity. The
expression “...…there shall be freedom of speech in Parliament…….”
occurring in first clause of Article 105, is general in nature; not
confined to individual members and is applicable to all discussions and
debates in Parliament. Secondly, the fact that this privilege is available
to strangers who publish under the authority of either House of Parliament
under sub-Article (2) and to those who have a right to speak in, and
otherwise take part in the proceedings of a House of Parliament or any
Committee thereof, is sufficient to refute the argument that it is only an
individual privilege of a member of the House. All privileges belong to
the House, though some of them may also protect and shield individual
members composing the house.

26. In Richard William Prebble v. Television New Zealand Ltd.[7], which
was an appeal from Court of Appeal of New Zealand, Privy Council was called
upon to consider an interesting question. In terms of Article 9 of the
Bill of Rights, 1689, which is enforced in New Zealand by virtue of Section
242 of the Legislature Act, 1908 and the Imperial Laws Application Act,
1988, freedom of speech and debates or proceedings in Parliament ought not
to be impeached or questioned in any Court or place out of Parliament. The
defendant in that case submitted that this parliamentary privilege would
not apply where it is the Member of Parliament himself who brings
proceedings for libel. The Privy Council did not accept that, the fact
that the maker of the statement in the Parliament was the initiator of the
Court proceedings would in any way affect the question whether Article 9
was infringed. It was observed,
“The privilege protected by Article 9 is the privilege of Parliament
itself. The actions of any individual member of Parliament, even if he has
an individual privilege of his own, cannot determine whether or not the
privilege of Parliament is to apply. The wider principle encapsulated in
Blackstone's words quoted above prevents the courts from adjudicating on
issues arising in or concerning the House, viz. whether or not a member has
misled the House or acted from improper motives. The decision of an
individual member cannot override that collective privilege of the House to
be the sole judge of such matters.”

It was thus found that Article 9 could not be waived and the
privilege of “freedom of speech” is the privilege of the House as a whole
and while it protects individual Members, it still continues to be
privilege of the House.

27. While considering effect of Section 3 of the Defamation Act, 1996
under which any individual Member of Parliament bringing defamation
proceedings is given power to waive for the purposes of those proceedings,
protection of any parliamentary privilege, House of Lords in Hamilton v. Al
Fayed[8] observed:-
“Before the passing of the Act of 1996, it was generally considered that
parliamentary privilege could not be waived either by the Member whose
parliamentary conduct was in issue or by the House itself. All
parliamentary privilege exists for the better discharge of the function of
Parliament as a whole and belongs to Parliament as a whole. Under section
13, the individual Member bringing defamation proceedings is given power to
waive for the purposes of those proceedings "the protection of any
enactment or rule of law which prevents proceedings in Parliament being
impeached or questioned in any court or place out of Parliament." The
section then provides by subsection (2) that such waiver operates so that
evidence, cross-examination or submissions made relative to the particular
M.P. are not to be excluded by reason of parliamentary privilege. The M.P.
thus having been given statutory power to waive the protection afforded by
the privilege so far as he is concerned, the section goes on to provide
that the admission of such evidence, questioning etc., should not be
treated as infringing the privilege of either House of Parliament: see sub-
section (2)(b).

The effect of the section seems to me to be entirely clear. It deals
specifically with the circumstances raised by Mr. Hamilton's case against
The Guardian. He could waive his own protection from parliamentary
privilege and in consequence any privilege of Parliament as a whole would
fall to be regarded as not infringed. At least in part, section 13 was
passed by Parliament to enable specifically Mr. Hamilton to proceed with
The Guardian action. The issues in this present action against Mr. Al Fayed
are for the most part identical. It would, indeed, be very strange if the
section had failed to enable Mr. Hamilton to bring this action.

Mr. Beloff sought to escape this conclusion by submitting that there are a
number of parliamentary privileges only some of which are enjoyed by the
individual M.P. as well as by the House itself. He submitted that amongst
the privileges that belong to the House alone is its autonomous
jurisdiction over certain matters. Therefore, Mr. Hamilton, as a former
M.P., could not effectively waive the privileges of the House based on its
autonomous jurisdiction as opposed to other privileges. In my judgment this
argument is fallacious. The privileges of the House are just that. They all
belong to the House and not to the individual. They exist to enable the
House to perform its functions. Thus subsection (1) of section 13
accurately refers, not to the privileges of the individual M.P., but to
"the protection of any enactment or rule of law" which prevents the
questioning of procedures in Parliament. The individual M.P. enjoys the
protection of Parliamentary privilege. If he waives such protection, then
under Section 13(2) any questioning of parliamentary proceedings (even by
challenging "findings . . . made about his conduct") is not to be treated
as a breach of the privilege of Parliament.”

The aforesaid case also goes to show that all parliamentary
privileges exist for the better discharge of the function of Parliament and
belong to Parliament as a whole. In this case, but for the intervention by
Section 13 of 1996 Act, it was not possible for a Member to waive his own
protection from parliamentary privilege. Even while discussing the effect
of such waiver, House of Lords observed that all privileges belong to the
House and that they exist for the better discharge of the functions of the
House.

28. Thus, the privilege of “freedom of speech in Parliament” is the
privilege of Parliament in the first instance and then of its Members.
Further, going by the letter and spirit of first two Clauses of Article 105
and the long history associated with this privilege right from Bill of
Rights, 1688, anything said by Members in Parliament cannot be called in
question in Court. It is for this reason that in Tej Kiran Jain (supra)
this Court observed, “anything said during the course of that business was
immune from proceedings in any Court.” The question still remains whether
the immunity is also available to collective expression of opinion by all
Members culminating in a motion or a resolution by the House and whether
the House is also entitled to the same protection under Article 105 (2).
If exercise of freedom of speech by individual Members is protected,
whether their collective expression in the form of a motion or resolution
is also entitled to such protection. But the matter is set at rest by Raja
Ram Pal (supra). It was submitted by the Additional Solicitor General
that actions of Parliament, except when they are translated in law, cannot
be questioned in Court. The submission was recorded and dealt with in
paragraphs 394 and 395 as under:-
“394. It is the submission of the learned Additional Solicitor General that
the proceedings in question were proceedings which were entitled to
protection under Article 105(2). In other words, in respect of proceedings,
if a Member is offered immunity, Parliament too is offered immunity. The
actions of Parliament, except when they are translated into law, cannot be
questioned in court.

395. We find the argument to be founded on reading of Article 105(2) beyond
its context. What is declared by the said clause as immune from liability
“to any proceedings in any court” is not any or every act of the
legislative body or Members thereof, but only matters “in respect of
anything said or any vote given” by the Members “in Parliament or any
committee thereof”. If Article 105(2) were to be construed so broadly, it
would tend to save even the legislative Acts from judicial gaze, which
would militate against the constitutional provisions.”

29. In the same case, this Court in para 431 summarised the principles,
the relevant for the present discussion being:-
“(g) While the area of powers, privileges and immunities of the legislature
being exceptional and extraordinary its acts, particularly relating to
exercise thereof, ought not to be tested on the traditional parameters of
judicial review in the same manner as an ordinary administrative action
would be tested, and the Court would confine itself to the acknowledged
parameters of judicial review and within the judicially discoverable and
manageable standards, there is no foundation to the plea that a legislative
body cannot be attributed jurisdictional error;

(h) The judicature is not prevented from scrutinising the validity of the
action of the legislature trespassing on the fundamental rights conferred
on the citizens;

(i) The broad contention that the exercise of privileges by legislatures
cannot be decided against the touchstone of fundamental rights or the
constitutional provisions is not correct;

(j) If a citizen, whether a non-Member or a Member of the legislature,
complains that his fundamental rights under Article 20 or 21 had been
contravened, it is the duty of this Court to examine the merits of the said
contention, especially when the impugned action entails civil consequences;

(k) There is no basis to the claim of bar of exclusive cognizance or
absolute immunity to the parliamentary proceedings in Article 105(3) of the
Constitution;”

30. We, therefore, hold the present petition to be maintainable and
proceed to consider the questions raised by the petitioner.

31. The first question raised by the petitioner is a time tested question
regarding the scope of fundamental right guaranteed under Article 19(1)(a)
of the Constitution to hold and express a dissenting opinion. The scope of
this article has received judicial consideration on numerous occasions and
the issue whether such freedom would include right to express a dissenting
opinion is also a non issue; as it is only the maker of an unpopular and
dissenting opinion who would need a cover or insulation. A popular or
accepted opinion, naturally would not require any protection. In any event,
Article 19(1)(a) guarantees free speech and expression and makes no
distinction and imposes no caveats, whether such speech is popular or
dissenting in nature. What is interesting is that the petitioner, in fact,
exercised such freedom of speech and exercised it rather adequately. His
comments and views on two famous personalities were available for
consumption in public domain. His freedom of speech in publically
expressing his views or propagating his ideas was not and is not in any
manner curtailed or impaired or placed under any restriction.

32. The submission of the petitioner however is, when Parliament is
claiming a privilege what is to be considered is whether the act in respect
of which privilege is claimed, is fundamental to the functioning to the
Parliament. It is submitted by the petitioner that the power available
with the Houses to deal with a stranger is only in relation to such act of
that stranger which interferes with the functioning of the House and since
the remarks of the petitioner did not in any way impede or interfere with
the proceedings of Parliament, it was not within the jurisdiction of any of
the Houses to take notice of such remarks and pass the Resolutions in
question.

33. The cases decided by this Court concerning rights of citizens,
whether Members or non-Members, as against the claim of privilege either
under Article 105 or 194 are of two kinds. Pandit M.S.M. Sharma v. Shri
Sri Krishna Sinha and Others (Pandit Sharma I)[9], Pandit M.S.M. Sharma v.
Dr. Shree Sri Krishna Sinha (Pandit Sharma II)[10], Keshav Singh case
(supra), Raja Ram Pal (supra), Amarinder Singh v. Special Committee, Punjab
Vidhan Sabha and Others[11] and Lokayukta, Justice Ripusudan Dayal and
Others v. State of Madhya Pradesh and Others[12] are all cases where
proceedings for breach of privilege were initiated by the concerned Houses.
Tej Kiran Jain (supra) however was not concerned with any breach of
privilege but was relating to a non-Member’s action against Members.
Similarly P.V. Narasimha Rao (supra) raised an issue whether a Member could
be prosecuted for having cast his vote for illegal consideration or bribe.
The earlier cases were under Clause (3) of Article 105 or 194 while last
two were under Clauses (1) and (2) of Article 105.

34. If any action is sought to be initiated against any citizen, whether
Member or Non-Member, either in exercise of contempt or breach of
privilege, the law that has developed is that the action of such citizen
must have interfered with fundamental functioning of the House so as to
enable the House to initiate any proceedings against the citizen. The
petitioner is right that in cases concerning breach of privilege or
contempt such aspect whether the actions of the citizen had interfered with
the functioning of the Houses, is crucial and fundamental. But in the
present case no action for either breach of privilege or contempt was
initiated or exercised. Chapter 20 of Lok Sabha Rules entitled Privileges
and Rules 222 to 228 thereof deal with matters of privileges. Similarly
Rules 187 to 203 of Rajya Sabha Rules deal with issues concerning
privileges. If an action for breach of privilege was initiated, the enquiry
would certainly be on the lines submitted by the petitioner, in that
whether his remarks had in any way impeded or interfered with the
functioning of the Houses.

35. We are however concerned in the present case with exercise of power in
terms of Sub-clause (1) of Article 105 which guarantees ‘freedom of speech
in Parliament’ as against the cases of the first kind mentioned in the
present case is one under Article 105 (1) and (2) of the Constitution,
without there being any layer of breach of privilege. The question
therefore is whether while exercising such power under Article 105(1), is
there any restriction on the scope and debate or discussion in Parliament
and whether acts of a citizen, whether Member or Non-Member, could not be
noticed or debated. As mentioned hereinabove, the only restriction in the
Constitution as regards subject matter of any debate or discussion is to be
found in Article 121 of the Constitution. It is axiomatic for the free
functioning of Houses of Parliament or Legislatures of State that the
representatives of people must be free to discuss and debate any issues or
questions concerning general public interest. It is entirely left to the
discretion of the Presiding Officer to permit discussion so long as it is
within the confines of Rules of Procedure.

36. We now deal with the concerned Rules and the Resolutions in question.
Rule 156 of Rajya Sabha Rules quoted hereinabove shows that a resolution
could relate to a matter of general public interest and under Rule 155 a
resolution could be in the form of a declaration of opinion by Rajya Sabha.
Under Rule 157 certain conditions are specified, inter alia that the
resolution shall not refer to the conduct or character of persons except in
their official or public capacity. Rules 171, 172 and 173 of Lok Sabha
Rules are also on similar lines. Resolution dated 11th March, 2015 passed
by Rajya Sabha expressed “unequivocal condemnation of the recent remarks”
of the petitioner against Mahatma Gandhi and Netaji Subhash Chandra Bose.
Similarly resolution dated 12th March, 2015 passed by Lok Sabha condemns
the statement of the petitioner relating to Mahatma Gandhi and Netaji
Subhash Chandra Bose. The condemnation by both the Houses was of the
opinion and remarks and did not refer to the conduct or character of the
petitioner. These resolutions were purely in the form of declaration of
opinion. Both the resolutions made reference to the offices held by the
petitioner as a Judge of this Court and Chairman of the Press Council and
show that both Houses were conscious of the fact that the remarks about
Mahatma Gandhi and Netaji Subhash Chandra Bose were made not by an ordinary
person but by one who had occupied high public office. In the context of
such remarks from a person of the stature of the petitioner, which were
put in public domain, if both Houses thought it fit to pass resolutions in
the form of a declaration, it was certainly within their competence. The
nature of remarks regarding Mahatma Gandhi and Netaji Subhash Chandra Bose
pertain to general public interest and as such the Houses were certainly
within their jurisdiction to pass resolutions.

37. It is not as if any action was deliberately undertaken or sanction
was issued against the petitioner. The petitioner in exercise of his right
under Article 19(a) made certain statements concerning two famous
personalities. We are not for a moment suggesting that he could not or
ought not to have made those statements. He is entitled to his views and
put those views in public domain for consumption of public in general. The
response by both Houses of Parliament was also natural in that the
Resolutions in question dealt with his statements in public domain. All
that the resolutions did was to condemn his remarks and did not refer to
the conduct or character of the petitioner. As stated earlier, the remarks
made by the petitioner regarding Mahatama Gandhi and Netaji Subhas Chandra
Bose, which were in public domain, were touching subject of general public
interest and as such could well be discussed in the Houses. The learned
Attorney General is right in submitting that the resolutions had no civil
consequences in so far as the conduct and character of the petitioner is
concerned. Unlike all the cases referred to herein above which visited
upon the concerned individual certain civil consequences, the present
resolutions do not inflict any penalty or visit the petitioner with any
civil consequences.

38. In Yves Michaud v. Michel Bissonnette[13] Court of Appeal for
Province of Quebec of Canada was called upon to consider almost identical
situation. The appellant therein had made certain remarks about Jewish
Community which led the National Assembly pass following motion:-
“That the National Assembly uncompromisingly, unequivocally and unanimously
denounces the unacceptable remarks about ethnic communities and, in
particular, the Jewish community, made by Yves Michaud in Montreal, on
December 13, 2000, at the Estates-General hearings on the French language.”

The appellant thereafter prayed for a declaratory judgment to declare
that the National Assembly did not have constitutional authority to express
an opinion regarding remarks made by citizens who were not members, unless
there was breach of privileges recognized as necessary for carrying out its
legislative function. The Judge in the first instance having rejected the
prayer, the matter reached Court of Appeal. It was observed by Court of
Appeal that the Members of the National Assembly collectively expressed an
opinion denouncing the remarks made by the appellant. Further, the
National Assembly expressed itself in a unanimous resolution on a current
political issue and acted within its purview. In conclusion, it was
observed that both the National Assembly and its Members exercised the
privilege of Freedom of Speech by carrying the motion denouncing the
remarks made by the appellant. In the course of its judgment, Court of
Appeal observed in paragraphs 35 and 36 as under:-
[35] Freedom of speech is not a privilege held only by individual Members,
as contended by the appellant. It also protects motions carried by the
National Assembly, because they are opinions expressed collectively by its
Members. In Erskine May’s Treatise on the Law, Privileges, Proceedings and
Usage of Parliament, “privilege” is defined as follows:

Parliamentary privilege is the sum of the peculiar rights enjoyed by
each House collectively as a constituent part of the High Court of
Parliament, and by Members of each House individually, without which they
could not discharge their function, and which exceed those possessed by
other bodies or individuals. Thus privilege, though part of the law of the
land, is to a certain extent an exemption from the ordinary law……. the
privilege of Parliament are rights which are “absolutely necessary for
the due execution of its powers”..

[36] In Great Britain, a joint parliamentary committee examined the
privilege of free speech and section 9 of the Bill of Rights of 1689. In
its report, the committee affirmed that freedom of speech is not a
privilege held by individual members, but clearly the privilege of the
deliberative assembly as a whole:

….freedom of speech is the privilege of the House as a whole and not
of the individual member in his own right, although an individual member
can assert and rely on it.

This judgment of the Court of Appeal was challenged in the Supreme
Court but leave to appeal was refused on 23.11.2006[14]. The view so taken
by Court of Appeal in Yves Michaud v. Michel Bissonnette has since then
been followed[15].

39. According to the petitioner, a stranger who makes a speech outside the
House, not connected with the functioning of the Parliament and not
derogatory to Parliament, could not be taken notice of by Parliament to
punish him. The power to punish a stranger, if his acts in any way impede
or interfere with functioning of Parliament, will certainly entitle
Parliament to initiate action for breach of privilege or in contempt. Such
limitation is definitely read into the exercise of power for breach of
privilege or contempt. However, such limitation or restriction cannot be
read in every debate. A pure and simple discussion or debate may touch
upon or deal with a stranger.

As stated above, freedom of speech in Parliament is subject only to such of
the provisions of the Constitution which relate to regulation of procedure
in Parliament. No separate law is required to confer jurisdiction to deal
with the opinions expressed by individuals and citizens during debates. If
the nature of opinions expressed by such citizens or individuals pertain to
matters of general public interest, it would certainly be within the powers
of the House to have a discussion or debate concerning such opinions. So
long as the debate or discussion is within the confines of the Rules, it
will be expressly within the powers of the House to disapprove such
opinions. No restriction is placed by the Constitution or the Rules of
Procedure and none can be read in any of the provisions. It is true that a
citizen or an individual may find himself in a situation where he has no
way to reply to the discussion or a resolution passed by the concerned
House. The concerned individual or citizen may also find himself in a
position where the resolution is passed without giving him any opportunity
of hearing. This definitely is a matter of concern and has engaged
attention of the concerned in some countries.

40. In 1984, Joint Select Committee of Common Wealth Parliament of
Australia recommended that the Houses of Federal Parliament adopt Standing
Orders to confer what has now become known as “Citizen’s Right of Reply.”
This recommendation was substantially implemented by resolutions passed by
the Senate and the House of Representatives on 25.02.1988 and 28.08.1997
respectively. As a result, a Citizen who has been named or identified or
has been subject to clear, direct and personal attack or criticism is
entitled to have his response on merits published. Similarly, Section 25
of Powers, Privileges and Immunities of Parliament and Provincial
Legislatures Act 4 of 2004, enacted by the Republic of South Africa
entitles a person, other than members, who feels aggrieved by a statement
or remark made by a member or a witness in or before a House or Committee
about that person, to submit a written request to have his response
recorded. The issue whether protection similar to the one available in
Australia and other jurisdictions regarding entitlement to have a response
so recorded, be extended in United Kingdom was considered by Joint
Committee of Parliamentary Privileges in 1999. But the Joint Committee
recommended that a right of reply scheme should not be adopted in United
Kingdom. It is thus a matter of legislative policy whether such right be
conferred or not. But in the absence of a clear provision, we cannot read
any requirement of hearing.

41. These developments and instances show that on certain occasions a
citizen gets noticed or commented upon in debates or discussions in Houses
enjoying privilege of freedom of speech. In what manner and to what extent
the citizen be protected and insulated is for the concerned Houses and
Legislatures to decide.

42. Concluding so, we do not find any merit in the petition, which is
dismissed without any order as to costs.

……………………….CJI
(T.S. Thakur)

……………………….J.
(R. Banumathi)

……………………….J.
(Uday Umesh Lalit)

New Delhi,
December 15, 2016
-----------------------
[1] Foot Note as supplied by Mr. F.S. Nariman, learned Amicus Curiae in
his brief note of submissions:-
Paragraph 8 in Tej Kiran Jain case has been subsequently quoted with
approval in the following decision: viz.
Capt. Virendra Kumar Advocate v. Shivraj Patil Speaker, Lok Sabha-
(1993) 4 SCC 97 (2 Judges) at para 8 page 101: citing Tej Kiran Jain Case;
P.V. Narasimha Rao v. State (CBI)-(1998) 4 SCC 626 (5Judges)
Majority; paras 109 and 113: citing Tej Kiran Jain case at para 113;
Kuldip Nayar v. UOI –(2006) 7 SCC 1 (5 Judges) para 367-373 – citing
Tej Kiran Jain case (at para 371)
Raj Ram Pal v. Hon’ble Speaker-(2007) 3 SCC 184 (5 Judges) at para
379 citing Tej Kiran Jain case
[2] [3] (1970) 2 SCC 272
[4] (2007) 3 SCC 184
[5] (1965) 1 SCR 413
[6] (1998) 4 SCC 626
[7] S.P. Bharucha, J. spoke for himself and for S. Rajendra Babu, J. In
his separate opinion, G. N. Ray, J. concurred with the view of S.P.
Bharucha, J.
[8] Law Reports: (1995) 1 A.C. 321
[9] Law Reports: (2001) 1 A.C. 395
[10] (1959) Suppl 1 SCR 806
[11] (1961) 1 SCR 96
[12] (2010) 6 SCC 113
[13] (2014) 4 SCC 473
[14] 2006 QCCA 775
[15] 2006 CarswellQue 9859
[16] 2015 QCCS 4798 & 2015 QCCS 883

We have examined the evidence laid in course of the arguments and have specifically considered the tests which have to be met by the prosecution to get success in the matter as laid down by this Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116, wherein the tests have been specifically given and it appears to us after analyzing the facts and evidence in this case, that the prosecution has failed to pass such tests to bring home the guilt of the accused.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.729 OF 2011

H.D. SIKAND (D) THROUGH L.RS. … APPELLANT(S)

:Versus:

CENTRAL BUREAU OF INVESTIGATION

AND ANR. … RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.730 OF 2011

CENTRAL BUREAU OF INVESTIGATION … APPELLANT(S)

:Versus:

LT. COL. S.J. CHAUDHARY … RESPONDENT(S)

J U D G M E N T

Pinaki Chandra Ghose, J.

1. These appeals, by special leave, have been filed by the appellants
challenging the judgment dated 15th May, 2009, passed by the High
Court of Delhi at New Delhi in Criminal Appeal No.456 of 2008, whereby
the High Court has set aside the judgment and order dated 28.04.2008
passed by the Additional Sessions Judge, Delhi, and acquitted
Respondent No.2 of the charge of murder as also of the charges under
Sections 3 & 4 of the Explosive Substances Act, 1908.

2. The brief facts of the case are that Rani Chaudhary got married to
Sqn. Ldr. Pritam Singh and out of the wedlock, she had two daughters,
namely, Mini and Maitri. After the death of her husband, she started
living at D-5, South Extension, Part-I, New Delhi. Rani Chaudhary had
acquaintance with Lt. Col. S.J. Chaudhary, who was a divorcee at that
time. On 31.3.1971, Rani Chaudhary got married to Lt. Col. S.J.
Chaudhary and out of this wedlock one daughter, namely, Sonali was
born on 24.08.1972. Their marriage could not continue harmoniously, so
Rani Chaudhary started living separately at her parents’ house at
Defence Colony, New Delhi, with effect from May, 1976. Lt. Col. S.J.
Chaudhary continued to harass Rani Chaudhary. Rani Chaudhary filed a
petition for divorce under Section 13(1)(1a) of the Hindu Marriage
Act, in the Court of District Judge, Delhi, and on 6.12.1979, an ex-
parte decree of divorce was granted in her favour. Accused S.J.
Chaudhary after coming to know about the ex-parte decree, filed an
appeal before the Delhi High Court on 5.03.1980. He also filed two
petitions in the Court of Additional District Judge, Delhi, one for
setting aside the ex-parte decree of divorce granted in favour of Rani
Chaudhary and the other for restraining Rani Chaudhary from marrying
Kishan Sikand. A restraint order was passed against Rani Chaudhary
from marrying Kishan Sikand, pending decision of the divorce petition.
On 6.1.1981, the Additional District Judge dismissed the petition for
setting aside the ex-parte decree of divorce and also vacated the
injunction order restraining Rani Chaudhary from remarriage.

3. On 9.01.1981, accused S.J. Chaudhary got another order from the High
Court of Delhi restraining Rani Chaudhary from remarriage till further
orders. This order was vacated by Delhi High Court on 17.03.1981 while
dismissing the appeal filed by accused S.J. Chaudhary against ex-parte
decree of divorce granted in favour of Rani Chaudhary. Since the
accused S.J. Chaudhary had already gone in appeal before the Delhi
High Court, against the order passed by the Additional District Judge
on 6.01.1981, the said appeal was admitted and Rani Chaudhary was
restrained from remarriage by the Delhi High Court. While disposing
of the appeal on 14.09.1981, the Delhi High Court set aside the decree
of divorce granted in favour of Rani Chaudhary and directed the
parties to appear before learned District Judge for fresh hearing of
divorce petition. Rani Chaudhary filed an appeal before this Court
against the order dated 14.09.1981 passed by the Delhi High Court.
This Court set aside the order dated 14.09.1981 passed by the Delhi
High Court and restored the ex-parte decree of divorce granted in
favour of Rani Chaudhary. After the divorce litigations between Rani
Chaudhary and accused S.J. Chaudhary came to an end, Kishan Sikand
(deceased) proposed Rani Chaudhary for marriage to which she agreed
and they decided to marry after the divorce is granted to Rani
Chaudhary and continued to live together in the house of deceased
Kishan Sikand at 98, Sundar Nagar, New Delhi. Accused S.J. Chaudhary
started threatening Rani Chaudhary and also lodged complaints on
29.9.1981 and 30.9.1981 at P.S. Lodhi Road and P.S. Hazrat Nijamuddin
against Kishan Sikand for illegally keeping his wife with him. But
Rani Chaudhary gave in writing that she had taken divorce from accused
S.J. Chaudhary and that she was staying there as a paying guest out of
her own free will and Kishan Sikand had not illegally detained her.
The case of the prosecution is that the accused S.J. Chaudhary having
lost his endeavour to win back his wife Rani Chaudhary, made up his
mind to eliminate Kishan Sikand and so he procured the raw ingredients
to manufacture a bobby trap bomb and using parts of a hand-grenade, he
managed to manufacture a bobby trap bomb. This bobby trap bomb was
converted into a parcel addressed to Kishan Sikand. On 2.10.1982, the
said parcel, containing the bomb, was kept at the staircase leading to
the first floor of 98, Sundar Nagar, New Delhi, in the rear portion
whereof Kishan Sikand was residing along with Rani Chaudhary. When the
said parcel bomb was opened by deceased Kishan Sikand, it triggered
off resulting in an explosion and his instantaneous death.

4. Post-mortem was conducted on the dead body of Kishan Sikand. The cause
of death was opined as a result of haemorrhage, shock and injuries to
vital organs caused by explosive device of hand grenade which were
fatal.

5. First Information Report (FIR) was registered on the day of the
incident itself on 2.10.1982. The investigation of the case was
ultimately entrusted to the CBI on 19.3.1983. Accused S.J. Chaudhary
was arrested by the Central Bureau of Investigation (“CBI”) on
31.07.1983 during the course of investigation. Rani Chaudhary, who was
at Sanawar (H.P.) on the day of the incident, returned to Delhi on the
next day. Her statement under Section 161 Cr.P.C. was recorded on
3.10.1982, wherein she informed the police about her turbulent
marriage with the appellant and the divorce. She also informed the
police that accused S.J. Chaudhary had been extending threats to her
to compel her to return to him and that he had even been threatening
Kishan Sikand. Apart from other persons whose statements were recorded
during investigation, the statement of one Suresh Gopal, a close
friend of the deceased Kishan Sikand and Rani Chaudhary was recorded
on 5.10.1982. Although the accused S.J. Chaudhary was a suspect from
the very beginning but nothing incriminating against him could be
gathered by the police before CBI had taken over. In support of their
case, the CBI examined 76 witnesses and 8 witnesses were examined on
behalf of the defence. Thereafter arguments were heard and judgment
reserved. On 28.04.2008, the Additional Sessions Judge, Delhi,
delivered the judgment convicting accused S.J. Chaudhary (Respondent
No.2 herein) under Section 302 of the Indian Penal Code and under
Sections 3 and 4 of the Explosive Substances Act, 1908, and sentencing
him to life imprisonment along with a fine of Rs.5,000/- for offence
under Section 302 IPC and to rigorous imprisonment for 10 years each
under Sections 3 and 4 of the Explosive Substances Act, 1908.

6. Being aggrieved by the judgment dated 28.04.2008 of the Additional
Sessions Judge, Delhi, Respondent No.2 filed criminal appeal before
the Delhi High Court on the ground that he had inter alia been
convicted only on the basis of circumstantial evidence and therefore
he was entitled to the benefit of doubt. Shri H.D. Sikand, father of
the deceased Kishan Sikand, filed an application for intervening in
the said criminal appeal. The application for intervention was allowed
and H.D. Sikand was granted permission to intervene in the matter but
on 12.03.2009, the intervenor Shri H.D. Sikand passed away. On
15.05.2009, the Delhi High Court, after hearing the parties allowed
the criminal appeal filed by Respondent No.2, set aside the judgment
and order passed by the Additional Sessions Judge and acquitted
Respondent No.2 (Lt. Col. S.J. Chaudhary) of the charge of having
committed murder as also the charges under Sections 3 & 4 of the
Explosive Substances Act, 1908. Hence, these appeals, by special
leave, have been filed against the acquittal of Respondent No.2 (Lt.
Col. S.J. Chaudhary).

7. We have heard the learned counsel appearing on behalf of the parties
and perused the judgment passed by the High Court as also the judgment
passed by the Trial Court. Learned counsel appearing on behalf of the
appellants in Criminal Appeal No.729 of 2011 submitted that after the
explosion took place in the house of Kishan Sikand, the Delhi Police
took over the investigation but except recording some statements and
formal actions, did not do any worthwhile investigation. This is clear
from the following:

a) On 3.10.1982 Shri P.P. Koahar (PW-72) recorded the statement of
Rani Chaudhary, Vijay Ram and Flaurance Homs and others. He also
recorded statement of Suresh Gopal on 5.10.1982. He also recorded
some statements on other days.

b) On 4.10.1982, search was conducted of the premises i.e. 98, Sunder
Nagar and the Investigating Officer took possession of the
documents on 6.10.1982. He did not even prepare proper Memo of the
said documents. All those documents are missing; and the documents
said to have been recovered by PW-72 on 4.10.1982 are not the part
of charge-sheet. During the cross-examination, R.P. Kochar,
Investigating Officer himself admitted that from the very beginning
he suspected the accused as he stated: “till the investigation was
me, I could not collect clinching evidence to arrest the accused”,
“from the very beginning I suspected him to be the perpetrator of
crime”.

8. Learned counsel further submitted that even after the Court’s order
and search warrant issued for search of the house of Respondent No.2,
only search was conducted by the police and thereafter the
Investigating Officer did not do anything except collecting 75 type
prints of different typewriters or specimens, which had no relevance
with the crime. The police did it only to pretend that they were doing
some investigation. According to the Investigating Officer himself, it
came to his knowledge that a parcel was spotted on the staircase on
25.09.1982 for the first time, but even after such fact came to his
notice, he did not make any investigation and did not even record the
statement of the person giving such information. When there was no
proper investigation by the Crime Branch and the criminal remained
undetected, on the request of the appellant, the case was transferred
to the CBI and only thereafter the real investigation started and in
this manner the precious time for collection of evidence was lost.

9. Learned counsel further submitted that there were strained relations
between Rani Chaudhary and accused Respondent No.2 and despite best
efforts to maintain her matrimonial ties with the accused Respondent,
the accused Respondent continued to ill treat her and even tortured
her both mentally and physically, forcing her to shift to Delhi. She
was beaten to the extent of causing fractures of three bones. The
accused Respondent threatened the deceased and Rani Chaudhary with
dire consequences to the extent of bodily harming and killing Kishan
Sikand on a number of occasions. The accused Respondent had the grudge
and motive to kill Kishan Sikand. Learned counsel submitted that the
marriage between Rani and accused Respondent could not continue
harmoniously and accused Respondent used to physically assault and
mentally torture Rani and on account of incessant harassment and
physical torture by accused Respondent, Rani lodged a complaint with
the concerned Army Authorities in February/March 1979. On coming to
know about this complaint, the accused Respondent came to Delhi from
Bangalore where he was posted and Rani was mercilessly beaten and she
received injuries including fractures of 3 ribs on the left side. Rani
lodged a report at the Police Station, Defence Colony and was
medically examined at AIIMS. Mrs. Devender Kaur, mother-in-law of Rani
(by the first marriage) also lodged a report at the Police Station and
complained about the conduct of accused Respondent. It is also stated
that the accused went to the house of Rani and confined her inside the
house but she escaped by jumping out of the window, in the process she
sustained sprain in her ankle. Thereafter, Rani filed a divorce
petition on the ground of cruelty and torture. The Trial Court passed
a decree of divorce which was set aside by the High Court and upon
filing special leave petition, this Court o n 24.08.1982 restored the
decree of divorce passed by the Trial Court. In the meantime, Rani and
Kishan Sikand became good friends and Rani started living with Kishan
Sikand at 98, Sunder Nagar, New Delhi. There was an understanding
between them that they would get married after the divorce was
finalized. The accused- Respondent threatened Rani not to live with
Kishan Sikand and in case she did not move out of the house of Kishan
Sikand, he would kill her and Kishan Sikand. The accused- Respondent
also told H.D. Sikand, father of Kishan Sikand, to throw out Rani from
his house, otherwise he would cripple Kishan Sikand by breaking his
bones. The accused- Respondent also visited H.D. Sikand in the office
and he was very annoyed at that time. Accused-Respondent also
telephoned Kishan Sikand and told him that if he did not turn Rani out
of his house within 24 hours, he would kill him. This was intimated by
Kishan Sikand to Rani (PW-1), Sudhir Khanna (PW-10), H.D. Sikand (PW-
19), M.M. Thapar (PW-37), Leelu Mool Chandani (PW-39) and Gajbir Singh
(PW-44). The accused-Respondent gave Rani four options:

a) to live together

b) to separate peacefully

c) to separate in an ugly manner

d) to create total chaos

The accused-Respondent threatened that if she did not agree for one of
the first three options then chaos would follow. This was recorded in
tape recorder. The accused-Respondent lodged a false report in Police
Station, Nizamuddin alleging that Rani has been forcibly confined by
Kishan Sikand at his house. Om Sagar, Station House Officer went to
the house of Kishan Sikand, met Rani and inquired from her if she was
forcibly detained to which Rani replied in the negative and gave her
statement in writing.

10. Learned counsel for the appellants further submitted that the finding
recorded by the Trial Court regarding ‘threat to deceased by the
accused-respondent’ and ‘motive’ are as follows:

Threat to deceased by the accused-Respondent

“I have no reason to disbelieve the witnesses about the threats
given to Rani Chaudhary and deceased Sikand.”

Motive

“Believing the deposition of Ms. Rani Chaudhary, H.D. Sikand and
others witnesses, I find that accused had motive to kill not
only Rani Chaudhary but also deceased Kishan Sikand so that they
don’t live together against the wishes of the accused.”

Learned counsel submitted that the High Court while accepting the
aforesaid findings on the second aspect i.e. Motive, has considered
three letters dated 2.10.1980, 16.11.1980 and 3.03.1982 out of context
inasmuch as the said letters cannot be read in isolation, particularly
in the factual background of the relations and the conduct of the
respondent and his behavior with Rani Chaudhary and Kishan Sikand.

11. Learned counsel for the appellants also submitted that the High Court
disbelieved the evidence of Mohd. Shafi (PW-7) who saw the accused-
Respondent coming out of the house of the deceased and going towards
Sunder Nagar market on the reasoning that Mohd. Shafi who had gone to
first floor of 98, Sunder Nagar, to give keys ought to have noticed
the existence of parcel, which he did not mention. Learned counsel
submitted that outsiders normally ignore anything lying on the
staircase or other place of house inasmuch as they are not concerned
with the same, particularly when a number of persons are living in the
same house. Learned counsel submitted that the High Court has also
disbelieved the testimony of this witness, firstly, on account of the
delay and secondly, that he was the employee of Sikand Motors and that
neither Suresh Gopal (PW-3) nor Mohd. Shafi (PW-7) had mentioned each
other’s presence on the spot in their 161 Cr.P.C. statements recorded
by the Police. It was submitted that no question was put as to why
Mohd. Shafi did not inform the Police about the visit of the accused
to the house of Sikand on 25th September, 1982 or that whether he had
noticed the presence of parcel or not.

12. Learned counsel appearing on behalf of Respondent No.2 submitted that
the Trial Court has convicted Respondent No.2 for the offence of
murder only on the basis of circumstantial evidence and the conviction
has been overturned by a Division Bench of the Delhi High Court. It is
further submitted that the circumstances relied upon by the
prosecution have not been satisfactorily established against
Respondent No.2 and the circumstances said to have been established
against Respondent No.2 do not provide a complete chain that is
required to prove his guilt. The standard of proof required to convict
a person in a case of circumstantial evidence, has not been met
either. It is submitted by the learned counsel that the law requires
that the circumstances relied upon in support of the conviction must
be fully established, and that the chain of evidence furnished by
those circumstances must be so complete, so as not to leave any
reasonable doubt for a conclusion, consistent with the innocence of
the accused. The circumstances from which the conclusion of guilt is
to be drawn, must not only be fully established, but also be of a
conclusive nature and consistent only with the hypothesis of the guilt
of the accused and they must not be capable of being explained by way
of any other hypothesis except the guilt of the accused, and when all
the said circumstances are collectively considered, the same must lead
only to the irresistible conclusion that the accused alone is the
perpetrator of the crime in question, which is not the case in the
present appeals, the learned counsel submitted.

13. Learned counsel for Respondent No.2 next submitted that the contention
of the appellant that the Crime Branch of Delhi Police did not
investigate the case properly and with promptitude due to the
influence of Lt. Col. Chaudhary (Respondent No.2) whose father was
former I.G. in Delhi Police, is an ex facie baseless and unfounded
allegation. The father of Respondent No.2 had passed away long back in
1956 and the I.O. Inspector Kochar had not even joined Delhi Police by
then and it is a farfetched allegation that he had been influenced by
the association of Lt. Col. Chaudhary. In any case, the prosecution
has not put any suggestion to Inspector Kochar in his testimony that
he wrongly recorded the statement of any witness or that Lt. Col.
Chaudhary had influenced him in any manner.

14. Learned counsel for Respondent No.2 further contended that the
prosecution’s whole case is not based on any concrete evidence or eye-
witness testimony but on presumption and imputation of motive to Lt.
Col. Chaudhary that he had an animus towards the deceased Kishan
Sikand due to his ex-wife Rani Chaudhary living with Kishan Sikand.
This cannot be true for the following reasons:

a) First, if the reason of anyone’s ex-spouse living with/marrying
another person led to people killing each other, then it would
have already resulted in an unholy mess of biblical proportions.

b) Second, all the three protagonists namely Lt. Col. Chaudhary,
Rani Chaudhary and Kishan Sikand had experience of previous
marriages – the marriage between Lt. Col. Chaudhary and Rani
Chaudhary was second marriage for both as he was a divorcee and
she was a widow and out of previous wedlock she had two
daughters and out of the wedlock with Lt. Col. Chaudhary they
had one daughter; and Kishan Sikand was also a divorcee and
father to a son. So, divorce and living apart was not a new
concept to any of the three parties so as to motivate them to
kill someone.

c) Third, due to the differences between husband and wife, Rani
Chaudhary left Bangalore where Lt. Col. Chaudhary was posted and
came to Delhi and started living separately from 1976 itself,
and subsequently she started living with Kishan Sikand at his
house. Other than his concern for the future and upbringing of
the three young daughters, Lt. Col. Chaudhary was already used
to a life without Rani Chaudhary who had been living apart from
him since 1976. Therefore, there was no sudden trigger to plan
in such detail as alleged and kill Kishan Sikand.

d) Fourth, to suggest that merely because Lt. Col. Chaudhary and
Rani Chaudhary went through divorce proceedings and some things
were said during that time, he would decide all of a sudden in
1982 to kill Kishan Sikand, is too far-fetched and conjectural,
and certainly not on which a conviction under Section 302 can be
based.

e) Fifth, letters dated 22.10.80, 16.11.80 and 03.03.82 marked as
Ex.PW-1/FF, Ex.PW-1/GG and Ex.PW-1/NN respectively, addressed by
Lt. Col. Chaudhary to Rani Chaudhary show that he had reconciled
to a life without her but was concerned for the well being and
future of the three daughters.

15. It is further submitted by the learned counsel for Respondent No.2
that the testimony of PW-7 Mohd. Shafi is false, manufactured and
cannot be relied upon, and that he was a planted witness is clear from
the following facts:

a) First, it is most pertinent to point out that if the testimony
of the said sole so-called eye-witness in the whole case PW-7 is
taken at its face value even then it is nowhere stated that he
saw Lt. Col. Chaudhary with any parcel let alone a parcel bomb
or that he saw Lt. Col. Chaudhary delivering anything to the
deceased’s house; he has merely stated that he saw Lt. Col.
Chaudhary coming out of the gate of the deceased house on
25.09.1982. There is neither any eye-witness nor any evidence to
show that the so called booby trap parcel was actually
delivered, or that it was delivered on this day, or that anybody
received the said parcel, or that anybody saw Lt. Col. Chaudhary
delivering anything let alone a booby trap parcel to the
deceased’s residence.

b) Second, there was no eye-witness available as long as the Delhi
Police investigated the case. However, as soon as the CBI took
over the case, two Link Witnesses, magically appear – PW-7 Mohd.
Shafi and PW-9 Jug Lal. Even Jug Lal did not support the
prosecution story in Court. He was declared hostile.

c) Third, PW-7 Mohd. Shafi comes into the picture only on
16.07.1983 – after nine and half months of the incident – when
his 161 Cr.P.C. statement was recorded by the CBI. PW-7 coming
up with a belated statement casts serious doubts on his
truthfulness.

Learned counsel argued that delay in recording the statements of
the eye-witnesses casts a serious doubt about they being eye-witnesses
to the occurrence. In support of this submission, he relies upon a
recent judgment of this Court in Shahid Khan v. State of Rajasthan,
(2016) 4 SCC 96, wherein this Court reversed the conviction for murder
as statements of eye-witnesses were recorded after 3 days of incident
and no explanation regarding the same was given.

d) Fourth, in the same judgment i.e. Shahid Khan v. State of
Rajasthan (supra), this Court further held that evidence of
witnesses became unreliable when there was no corroboration of
their evidence, and a further reason for reversal of conviction
for murder was that there was no information available as to how
police came to know that witnesses saw the occurrence and also
as the case against accused persons was not proved beyond
reasonable doubt.

e) Fifth, PW-7 Mohd. Shafi admits that he had never seen Lt. Col.
Chaudhary there ever before. It is highly doubtful that he would
be particular in noticing that Lt. Col. Chaudhary was coming out
of the gate of 98, Sunder Nagar, or that he would be able to say
after 10 months that he saw Lt. Col. Chaudhary.

f) Sixth, PW-7 is an old and trusted employee of the Sikands with
over 30 years of service with them and is, therefore, clearly
not an independent and reliable witness and is the only person
deposing to have seen Lt. Col. Chaudhary near the main gate
coming out of 98, Sunder Ngar on 25.09.1982.

g) Seventh, PW-7 has stated that subsequent to spotting of Lt. Col.
Chaudhary, he parked the car, locked it and went upstairs to
deliver the keys of the car to Kishan Sikand and even at that
time he did not see any parcel lying in the staircase. PW-7’s
testimony itself rules out that Lt. Col. Chaudhary had placed
any parcel on that day as alleged by the prosecution.

h) Eighth, the claim to recognize a person in the headlights of a
moving car, when not specifically looking out for him, would be
a very tall and motivated claim, not free from suspicion,
especially when sunset occurred at 6.16 p.m. on 25th September,
1982 (recorded data available with Meteorological Bureau) and it
gets pitch-dark by 6.45 p.m. Also there was no streetlights
outside 98, Sunder Nagar in 1982.

i) Ninth, during his cross-examination, except for the exact date
and time of seeing Lt. Col. Chaudhary outside 98, Sunder Nagar,
PW-7 Mohd. Shafi could not remember any other date in 1982 –
neither his son’s date of marriage, nor where his son worked,
nor his own birthday, nor any important religious or personal
occasion.

The learned counsel, therefore, argued that the entire statement
of PW-7 is tailor-made to suit the prosecution story only to create a
link between the planting of a parcel and Lt. Col. Chaudhary. Such
evidence is to be treated with great suspicion by law and a delay of
just a few days, in such circumstances, has been held to be
unreliable.

16. Learned counsel for Respondent No.2 lastly submitted that the
prosecution has failed to prove their case beyond reasonable doubt for
the following reasons:

i) Motive to Kill: It is evident from Respondent No.2’s letters that
he had reconciled to the inevitability of divorce. The High Court
has come to the correct finding that while there is scope for an
argument that inasmuch as there is evidence wherefrom a motive can
be attributed to Respondent No.2; there is an equal scope for an
argument that there is evidence on record wherefrom said motive
gets negated. To conclude, the only admissible evidence which
remains against Respondent No.2 is that of motive, which itself is
negated from the readings of the said letters. But motive, being
presumptive evidence, is a weak evidence and by itself cannot form
a chain of circumstances so complete that the only inference
possible is the guilt of Respondent No.2, ruling out his innocence.

ii) Access to Hand Grenade: It is submitted that Respondent No.2 was an
Army Officer and there is no evidence on record that he respondent
would have procured or have access to a POK hand grenades as
categorically proved by the testimony of PW-45, DW-3 and DW-6. Also
the Respondent was evacuated from the battlefield in a wounded
condition after he was relieved of all the arms and ammunition.
Moreover, the Respondent belonged to four horse regiment who are
not specialized in anatomy of arms and ammunition especially hand
grenade. Further, there was no evidence to the effect that any POK
hand grenade was stolen at any time. Also it would be preposterous
to suggest that the Respondent had stolen a Pakistani grenade
during the Indo-Pak in 1971, so that he may use it for personal
objective in future and that he actually used it a decade later in
1982.

iii) Presence of Respondent at Deceased’s house: The whereabouts of the
Respondent on 25.09.1982 is on record from about 1 pm till about 11
pm and at no stage he went anywhere in the vicinity of 98, Sunder
Nagar. The Respondent played golf from 1.30 pm till 5.30 pm, then
refreshed himself, changed and had refreshments. PW-20 has deposed
before the Court in his cross-examination that the Respondent was
with him from 7.45 pm on 25.09.1982 till 8.15 pm. It is
corroborated by DW-2 Maj. A.K. Nehra that the Respondent arrived at
Friends Colony at about 8.15 pm accompanied by short fat person
signifying PW-20. Thereafter, DW-2 dropped the Respondent at 4,
Friends Colony, where a party was going on. The Respondent’s
presence is further confirmed till 11 pm by DW-1 Mr. Rattan Sehgal
at a party in Friends Colony.

iv) Disclosure Statement: The “voluntary” disclosure statement dated
05.08.1993 was coerced after five days in CBI custody and the
Respondent has not signed the disclosure statement. The witness to
such disclosure statement has also not signed the statement of the
Respondent. One of the two independent witnesses has been given up
by the prosecution. The Respondent had not pointed to any specific
typewriter and the typewriter machine alleged to be used by the
Respondent for typing the address was not even sealed on the same
day, but much later i.e. on 01.10.1983.

v) Typewriter used for typing address on the Parcel PW-75
has led no evidence of any special knowledge gained by him except
for a three days stint with Godrej, a company which manufactures
typewriters. Further the High Court has in details discussed the
criteria for comparison of typewriter evidence, whereby the High
Court came to the conclusion that the expert in comparing the two
address as alleged typed from the same machine has not followed the
reasoning and procedure which an expert necessarily needs to follow
as per Fryes test. The seized specimens taken from Janta Commercial
were not sealed. Further, PW-75 has admitted that the questioned
document does not contain clear impressions due to mutilation and
that having admitted thirteen dissimilarities during cross-
examination, an attempt was made by PW-75 to explain the said
thirteen dissimilarities, and therefore, no reliance can be placed
on his report and testimony.

17. Learned counsel for Respondent No.2 submitted that the rule of
evidence setting out the threshold of conviction based on
circumstantial evidence emanating from the decision in the English
case of R. v. Hodge (168 ER 1163 (1838), and subsequently followed by
all the common law countries, is that before a person is convicted
entirely on circumstantial evidence, the Court must be satisfied not
only that those circumstances are consistent with his having committed
the act, but also that the facts are such, so as to be inconsistent
with any other rational conclusion other than the one that the accused
is the guilty person, is not met by any stretch of imagination in the
above-mentioned factual and legal scenario, and therefore, these
appeals deserve to be dismissed.

18. After hearing the learned counsel for the parties and after going
through the records of this matter, including the evidence, as
analyzed by the High Court as well as the Trial Court, it appears that
the case in hand is totally dependent upon the circumstantial
evidence. We have examined the evidence laid in course of the
arguments and have specifically considered the tests which have to be
met by the prosecution to get success in the matter as laid down by
this Court in Sharad Birdhichand Sarda Vs. State of Maharashtra,
(1984) 4 SCC 116, wherein the tests have been specifically given and
it appears to us after analyzing the facts and evidence in this case,
that the prosecution has failed to pass such tests to bring home the
guilt of the accused. Accordingly, in our opinion, the High Court has
correctly come to the conclusion after analyzing the facts and the
evidence. In our opinion, the arguments which have been put forward in
the matter by Mr. D.N. Ray, learned counsel appearing on behalf of
respondent No.2, are much more acceptable in the facts and
circumstances of this case. The findings recorded by the High Court
are plausible, logical and persuasive, reached by the materials on
record and command for affirmation. Thus, we do not have any
hesitation to hold that the High Court has correctly come to the
conclusions with the reasons given therefor. Accordingly, we do not
find any merit in these appeals which are hereby dismissed.

….....….……………………J
(Pinaki Chandra Ghose)

….....…..…………………..J
(Amitava Roy)
New Delhi;
December 15, 2016.

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Thursday, December 22, 2016