THE STATE OF KERALA versus K. AJITH & ORS.

[2021] 6 S.C.R. 774

[2021] 6 S.C.R.

THE STATE OF KERALA

K. AJITH & ORS.

(Criminal Appeal No. 697 of 2021)

BJULY 28, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]

Code of Criminal Procedure, 1973:

Cs. 321 – Withdrawal of prosecution – Respondents-MLAsallegedly disrupted the presentation of the budget by climbing onto the dais of the Speaker and damaging furniture and articlescausing huge loss – Registration of criminal case at the behest ofthe Legislative Secretary u/ss. 447 and 427 r/w s. 34 IPC and s.3(1) of the Prevention of Damage to Public Property Act, 1984 –DCognizance taken by Chief Judicial Magistrate-CJM uponsubmission of the final report u/s 173 CrPC – Application u/s 321by the public prosecutor seeking sanction to withdraw the caseagainst the respondents – CJM declined to grant permission to thepublic prosecutor to withdraw the prosecution of the respondentsEu/s. 321 – High Court upheld the order – On appeal, held: Privilegesand immunities are not gateways to claim exemptions from the generallaw of the land, particularly, the criminal law which governs theaction of every citizen – To claim an exemption from the applicationof criminal law would be to betray the trust which is impressed onthe elected representatives as the makers and enactors of the law –FWithdrawal application is based on fundamental misconceptionof the constitutional provisions contained in Art. 194 – Alleged actof destruction of public property within the House by the membersto lodge their protest against the presentation of the budget cannotbe regarded as essential for exercising their legislative functions,Gnor can be equated with the freedom of speech in the legislature,thus, not covered by the privileges guaranteed under theConstitution – Allowing the prosecution to be withdrawn would onlyshow that the elected representatives are exempt from the mandateof criminal law – Thus, the orders passed by the CJM and the HighCourt are upheld – Prevention of Damage to Public Property Act,H1984.

s. 321 – Withdrawal of prosecution – Exercise of power bythe Public Prosecutor u/s. 321 – Exercise of jurisdiction by the ChiefJudicial Magistrate – General principles – Formulation of.

s. 321 – Matter pertaining to declining of application forwithdrawal made by the public prosecutor u/s. 321 CrPC by ChiefJudicial Magistrate and the High Court – Plea that the videorecording of the incident was procured from the Electronic RecordRoom of Assembly without the permission of the Speaker; and thatthe video recording lacks the certification required for admissibilityof evidence – Held: Questions of admissibility of evidence, absentcertifications etc., are to be adjudged by the trial court during thestage of trial – It is not the duty of this Court, in an application u/s.321 to adjudicate upon evidentiary issues and examine theadmissibility or sufficiency of evidence – Evidence Act, 1872 – s.65B.

s. 197(1) – Sanction of speaker for prosecution againstaccused-MLAs – Requirement of – Held: No provisions warrantingthe sanction of the speaker to initiate criminal prosecution eitherspecific to offence or specific to class – Thus, on facts, prosecutionagainst accused not vitiated for want of sanction.

Constitution of India:

Arts. 105 and 194 – Privileges and immunities of Members ofParliament and MLAs – Interpretation – Scope of – Explained.

Art. 194 – Powers, privileges, etc, of the House of Legislaturesand of the members and committees thereof – Parliamentaryproceedings – Immunity from publication of proceedings of theHouse – Held: Parliamentary proceedings does not include allactivities inside the house – It is only limited to essential functionsof members in their official capacity for participation anddeliberation in the house – Act of destruction and vandalism notmanifestation of freedom of speech and cannot be termed asproceedings of the assembly – Thus, video recording of the incidentwas not “proceeding” of the Assembly, which would be protectedfrom legal proceedings u/Art.194(2).

Art. 136 – Jurisdiction under – Exercise of – Matter pertainingto declining of application for withdrawal made by the publicprosecutor u/s. 321 CrPC by Chief Judicial Magistrate and the High

ACourt – Interference with – Held: Court not to embark upon rovingenquiry into the facts and evidence of case like this – Interferencewarranted when findings suffer from palpable error or perversity.

Parliamentary privileges: Nature of the privileges andimmunities enjoyed by members of the House of Commons in theBUnited Kingdom – Evolution of, through various phases –Jurisprudential development – Discussed.

Dismissing the appeals, the Court

HELD: 1. The principles which emerge on the withdrawalof prosecution under Section 321 of the Code of CriminalCProcedure, 1973 are:

(i) Section 321 entrusts the decision to withdraw from aprosecution to the public prosecutor but the consent of the courtis required for withdrawal of the prosecution;

D(ii) The public prosecutor may withdraw from prosecutionnot merely on the ground of paucity of evidence but also to furtherthe broad ends of public justice;

(iii) The public prosecutor must formulate an independentopinion before seeking the consent of the court to withdraw fromthe prosecution;E

(iv) While the mere fact that the initiative has come fromthe government will not vitiate an application for withdrawal, thecourt must make an effort to elicit the reasons for withdrawal soas to ensure that the public prosecutor was satisfied that thewithdrawal of the prosecution is necessary for good and relevantFreasons;

(v) In deciding whether to grant its consent to withdrawal,the court exercises judicial function but it has been describedto be supervisory in nature. Before deciding whether to grant itsconsent the court must be satisfied that:

(a) The function of the public prosecutor has not beenimproperly exercised or that it is not an attempt to interfere withthe normal course of justice for illegitimate reasons or purposes;

(b) The application has been made in good faith, in theinterest of public policy and justice, and not to thwart or stifle theprocess of law;

(c) The application does not suffer from such improprietiesor illegalities as would cause manifest injustice if consent wereto be given;

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

(e) The permission has not been sought with an ulteriorpurpose unconnected with the vindication of the law which thepublic prosecutor is duty bound to maintain;

(vi) While determining whether the withdrawal of theprosecution subserves the administration of justice, the courtwould be justified in scrutinizing the nature and gravity of theoffence and its impact upon public life especially where mattersinvolving public funds and the discharge of public trust areimplicated; and

(vii) In situation where both the trial judge and therevisional court have concurred in granting or refusing consent,this Court while exercising its jurisdiction under Article 136 ofthe Constitution would exercise caution before disturbingconcurrent findings. The Court may in exercise of the well-settledprinciples attached to the exercise of this jurisdiction, interferein case where there has been failure of the trial judge or of theHigh Court to apply the correct principles in deciding whether togrant or withhold consent. [Para 23][811-E-H; 812-A-H]

Sheonandan Paswan vs State of Bihar & Ors. (1987) 1SCC 288 : [1987] 1 SCR 702 – followed.

State of Bihar vs Ram Naresh Pandey & Anr. AIR 1957SC 389 : [1957] SCR 279; M.N Sankarayaraynan Nairvs P.V Balakrishnan (1972) 1 SCC 318 : [1972] 2 SCR599; Rajender Kumar Jain vs State through SpecialPolice Establishment and Ors. (1980) 3 SCC 435 :[1980] 3 SCR 982; Yerneni Raja Ramchandar vs State

Aof Andhra Pradesh & Ors. (2009) 15 SCC 604 : [2009]12 SCR 494; Bairam Muralidhar vs State of AndhraPradesh (2014) 10 SCC 380 : [2014] 8 SCR 328– referred to.

2.1 Articles 105 and 194 of the Constitution provide inBsimilar terms for the privileges and immunities of Members ofParliament and MLAs respectively. [Para 24][813-A-B]

2.2 Clause 1 of Article 194 recognizes the freedom of speechin the legislature of every State. However, the freedom recognizedby clause 1 is subject to the provisions of the Constitution andCstanding orders regulating the procedure of the State Legislatures.Clause 2 enunciates rule of immunity which protects memberof the legislature from proceeding in any court “in respect ofanything said or vote given” in the legislature or in anycommittee of the legislature. Moreover it provides shieldagainst any liability for publication of report, paper, votes orDproceedings by or under the authority of the House. Further,clause 3 of Article 194 provides that in other respects theprivileges and immunities are such as defined by law. Until definedby law-there being presently no law on the subject-the privilegesand immunities of the members of the House and its committeesEshall be such as were in existence before Section 26 of the Forty-Fourth Amendment to the Constitution came into force. Accordingto clause 4, the privileges and immunities also attach to thosewho have right to speak in and participate in the proceedings ofthe House or its committees. [Para 25][813-G-H; 814-A-C]

F2.3 At the time of the adoption of the Constitution, clause 3of Article 194 provided that the privileges, immunities and powersof House of the Legislature of State (and of its members andcommittees) shall be such as may from time to time be definedby the legislature by law, and until so defined, shall be those ofthe House of Commons of the Parliament of the United KingdomGat the commencement of the Constitution. By Section 34 of theForty-Second Amendment to the Constitution, clause (3) ofArticle 194 was amended and embodied transitory provisionunder which until the powers, privileges and immunities of

House of the legislature of State (and of the members and itscommittees) were defined by law made by the legislature, theyshall be those of the British House of Commons and the privilegesof each House “shall be such as may from time to time be evolvedby such House”. However, Section 34 was not brought into forceby issuing notification under Section 1(2) of the Constitution(Forty-Second) Amendment Act 1976. Eventually, clause (3) inits present form was substituted by Section 26 of the Constitution(Forty-Fourth) Amendment Act 1978 with effect from 20 June1979. The present position of clause (3) is that: the ultimatesource of the powers, privileges and immunities of House of aState Legislature and of the members and committees would bedetermined by way of legislation; until such legislation isenacted, the position as it stood immediately before the cominginto force of Section 26 of the Forty-Fourth Amendment Act 1978would govern; and the amendment to the Constitution introducingthe concept of evolution of privileges and immunities by the Houseof the legislature never came into force and now stands deleted.Since the Parliament is yet to enact law on the subject ofparliamentary privileges, according to Article 194(3) of theConstitution, the MLAs shall possess privileges that themembers of the House of Commons possessed at the time ofenactment of the Constitution. [Para 26, 29][814-C-G; 817-C]

2.4 It is evident that person committing criminal offencewithin the precincts of the House does not hold an absoluteprivilege. Instead, he would possess qualified privilege, andwould receive the immunity only if the action bears nexus tothe effective participation of the member in the House.[Para 32][819-F-G]

R vs Eliot, Holles and Valentine (1629) 3 St Tr 292-336; Raja Ram Pal vs Hon’ble Speaker, Lok Sabha(2007) 3 SCC 184:[2007] 1 SCR 317; Bradlaugh vsGossett [1884] EWHC 1 (QB); R vs Chaytor and others[2010] UKSC 52 – referred to.

Erskine May, Parliamentary Practice, Chapter 17,Page 281 (24th Ed., Lexis Nexis, 2011); Sir EdwardCoke, Fourth Part Of The Institutes of the Laws ofEngland 14 (1797) – referred to.

A3. Whenever claim of privilege or immunity is raised inthe context of Article 105(3) or Article 194 (3), the Court isentrusted with the authority and the jurisdiction to determinewhether the claim is sustainable on the anvil of the constitutionalprovision. Neither Parliament nor the State legislatures in Indiacan assert the power of “self-composition or in other words theBpower to regulate their own constitution in the manner claimedby the House of Commons or in the UK”. The decision thereforeemphasizes the doctrine of constitutional supremacy in Indiaas distinct from parliamentary supremacy in the UK.[Para 42][824-G-H; 825-AB]

CRaja Ram Pal vs Hon’ble Speaker, Lok Sabha (2007) 3SCC 184 : [2007] 1 SCR 317 – followed.

P.V. Narasimha Rao vs State (CBI/SPE) etc AIR 1998SC 2120 : [1998] 2 SCR 870; Lokayukta, JusticeRipusudan Dayal (Retired) and Ors. vs State of MadhyaDPradesh & Ors. (2014) 4 SCC 473 : [2014] 3 SCR 242– referred to.

4. In approaching the task in the exercise of its jurisdictionunder Article 136 of the Constitution, the Court must do well tobear in mind the caution which has been expressed in the decisionEof the majority in the Constitution Bench decision in SheonandanPaswan’s case. The Court noted that it had been “the declaredpolicy of this Court not to embark upon roving enquiry into thefacts and evidence of case like this”, particularly because anyobservation on merits or facts and evidence will cause seriousFprejudice to parties at trial. Hence, in approaching thesubmissions of the counsel, it is necessary to begin with cautionand caveat that in evaluating them the Court must not transcendthe limits of its jurisdiction under Article 136. Both the CJM andthe High Court have come to the conclusion that the applicationfor withdrawal made by the public prosecutor under Section 321Gshould not be allowed. The issue is whether these findings sufferfrom palpable error or perversity which would warrantinterference by this Court. [Para 45][823-B-F]

Sheonandan Paswan vs State of Bihar & Ors. (1987) 1SCC 288 : [1987] 1 SCR 702 – followed.H

5.1 The conclusion of the High Court to affirm the decisionof the CJM must be analysed from prism of the law as it has beenenunciated consistently in several decisions before and after thejudgment of the Constitution Bench and of course, in the decisionin Sheonandan Paswan’s case. The second aspect which must beborne in mind is that the High Court has accepted the fact thatno mala fides can be attributed to the application for withdrawal.It is to be considered whether this is circumstance which in andof itself should have resulted in allowing the application for thegrant of permission for withdrawal of the prosecution underSection 321. The issue on this aspect of the case is whether afinding that there is no absence of good faith must inexorablyresult in allowing an application under Section 321 bereft of theother considerations which must underlie such decision.[Para 46][827-A-C]

Sheonandan Paswan vs State of Bihar & Ors. (1987) 1SCC 288 : [1987] 1 SCR 702 – followed.

5.2 The persons who have been named as the accused inthe FIR in the instant case held responsible elected office asMLAs in the Legislative Assembly. In the same manner as anyother citizen, they are subject to the boundaries of lawful behaviourset by criminal law. No member of an elected legislature can claimeither privilege or an immunity to stand above the sanctions ofthe criminal law, which applies equally to all citizens. The purposeand object of the Prevention of Damage to Public Property Act1984 was to curb acts of vandalism and damage to public propertyincluding (but not limited to) destruction and damage causedduring riots and public protests. [Para 52][831-E-G]

Re: Destruction of Public and Private Properties 20095 SCC 212 : [2009] 6 SCR 439; Kodungallur FilmSociety and Another vs Union of India 2018 10 SCC713 : [2018] 12 SCR 695 – referred to.

5.3 member of the legislature, the opposition included,has right to protest on the floor of the legislature. The right todo so is implicit in Article 105(1) in its application to Parliamentand Article 194(1) in its application to the State Legislatures.

AThe first clauses of both these Articles contain mandate that“there shall be freedom of speech” in Parliament and in thelegislature of every State. Nonetheless, the freedom of speechwhich is protected by the first clause is subject to the provisionsof the Constitution and to the rules and standing orders regulatingthe procedure of the legislature. The second clause providesBimmunity against liability “to any proceedings in any court” inrespect of “anything said or any vote given” in the legislature orany committee. Moreover, no person is to be liable in respect ofthe publication by or under the authority of Parliament or of theHouse of the State Legislature of any report, paper, votes orCproceedings. The history of Clause (3) of Article 194 as it originallystood under which the powers, privileges and immunities of themembers of Parliament and of the State Legislatures were thosewhich were recognised for Members of the House of Commonsimmediately before the enforcement of the Constitution. Thisprovision was sought to be amended by the Forty SecondDAmendment and was ultimately amended by the Forty FourthAmendment, from which it derives its present form. It recognisesthe powers, privilege and immunities as they stood immediatelybefore the enforcement of Section 26 of the Forty FourthAmendment. [Para 53][831-G-H; 832-A-D]

5.4 Tracing the history of the privileges and immunitiesenjoyed by members of the House of Commons, Erskine Maymakes doctrinal division of the position in the UK into variousphases. However, the stand out feature which emerges from theprivileges and immunities of the members of the House ofFCommons is the absence of an immunity from the application ofcriminal law. [Para 54][832-D-F]

5.5 There is valid rationale for this position. The purposeof bestowing privileges and immunities to elected members ofthe legislature is to enable them to perform their functions withoutGhindrance, fear or favour. The oath of office which members ofParliament and of the State Legislature have to subscriberequires them to (i) bear true faith and allegiance to theConstitution of India as by law established; (ii) uphold thesovereignty and integrity of India; and (iii) faithfully discharge

the duty upon which they are about to enter. It is to create anenvironment in which they can perform their functions anddischarge their duties freely that the Constitution recognizesprivileges and immunities. These privileges bear functionalrelationship to the discharge of the functions of legislator. Theyare not mark of status which makes legislators stand on anunequal pedestal. It is of significance that though Article 19(1)(a)expressly recognises the right to freedom of speech andexpression as inhering in every citizen, both Articles 105(1) and194(1) emphasise that “there shall be freedom of speech” inParliament and in the Legislature of State. In essence, Article19(1)(a) recognizes an individual right to the freedom of speechand expression as vested in all citizens. Articles 105(1) and 194(1)speak about the freedom of speech in the Parliament and StateLegislatures and in that context must necessarily encompass thecreation of an environment in which free speech can be exercisedwithin their precincts. The recognition that there shall be freedomof speech in Parliament and the State Legislatures underlinesthe need to ensure the existence of conditions in which electedrepresentatives can perform their duties and functions effectively.Those duties and functions are as much matter of duty and trustas they are of right inhering in the representatives who arechosen by the people. [Para 55][832-F-H; 833-A-D]

R vs Eliot, Holles and Valentine (1629) 3 St Tr 292-336; Bradlaugh vs Gossett [1884] EWHC 1 (QB); R vsChaytor and others [2010] UKSC 52 – referred to.

5.6 Privileges and immunities are not gateways to claimexemptions from the general law of the land, particularly as inthis case, the criminal law which governs the action of everycitizen. To claim an exemption from the application of criminallaw would be to betray the trust which is impressed on thecharacter of elected representatives as the makers and enactorsof the law. The entire foundation upon which the application forwithdrawal under Section 321 was moved by the Public Prosecutoris based on fundamental misconception of the constitutionalprovisions contained in Article 194. The Public Prosecutor seemsto have been impressed by the existence of privileges and

Aimmunities which would stand in the way of the prosecution. Suchan understanding betrays the constitutional provision andproceeds on misconception that elected members of thelegislature stand above the general application of criminal law.[Para 56][833-D-G]

B5.7 The reliance on P.V Narasimha Rao’s case to argue thatthe action of the respondent-accused inside the House was formof ‘protest’ which bears close nexus to the freedom of speech,and thus, is covered by Article 194(2) is unsatisfactory. Themajority in P.V Narasimha Rao’s case dealt with the interpretationof the phrase ‘in respect of’ and gave it wide import. At theCsame time, the majority observed that there must be nexusbetween the act or incident (which in that case was the act ofbribery in the context of the votes cast on motion of no-confidence) and the freedom of speech or to vote, which bore aclose nexus to the freedom protected under Article 105(2). TheDcase however, did not deal with the ambit of the privilege of‘freedom of speech’ provided to the members of the House. Itwas in Lokayukta, Justice Ripusudan Dayal (Retired)’s case that athree judge Bench of this Court laid down the law for theidentification of the content of the privileges. It was held that themembers shall only possess such privileges that are essentialEfor undertaking their legislative functions. An alleged act ofdestruction of public property within the House by the membersto lodge their protest against the presentation of the budgetcannot be regarded as essential for exercising their legislativefunctions. The actions of the members have trodden past the

Fline of constitutional means, and is thus not covered bythe privileges guaranteed under the Constitution. [Para 57][833-G-H; 834-A-D]

P.V. Narasimha Rao vs State (CBI/SPE) etc AIR 1998SC 2120 : [1998] 2 SCR 870; Lokayukta, JusticeGRipusudan Dayal (Retired) and Ors. vs State of MadhyaPradesh & Ors. (2014) 4 SCC 473 : [2014] 3 SCR 242– referred to.

5.8 The true function of the court when an application underSection 321 is filed is to ensure that the executive function of the

public prosecutor has not been improperly exercised or that it isnot an attempt to interfere with the normal course of justice forillegitimate reasons or purposes. The court will grant its consentif it is satisfied that it sub-serves the administration of justiceand the purpose of seeking it is not extraneous to the vindicationof the law. It is the broad ends of public justice that must guidethe decision. The public prosecutor is duty bound to actindependently and ensure that they have applied their minds tothe essential purpose which governs the exercise of the powers.Whether the public prosecutor has acted in good faith is not initself dispositive of the issue as to whether consent should begiven. The court must scrutinize “whether the application is madein good faith, in the interest of public policy and justice and not tothwart or stifle the process of law”. Good faith is one and not theonly consideration. The court must also scrutinize whether anapplication suffers from such improprieties or illegalities as tocause manifest injustice if consent is given. [Para 58][834-D-H]

Sheonandan Paswan vs State of Bihar & Ors. (1987) 1SCC 288 : [1987] 1 SCR 702 – followed.

State of Bihar vs Ram Naresh Pandey & Anr. AIR 1957SC 389 : [1957] SCR 279 – relied on.

5.9 On the touchstone of these principles, there can be nomanner of doubt that the CJM was justified in declining consentfor the withdrawal of the prosecution under Section 321. The actscomplained of which are alleged to constitute offences punishableunder Sections 425, 427 and 447 of the IPC and under Section3(1) of the Prevention of Damage of Public Property Act 1984are stated to have been committed in the instant case on thefloor of the State Legislature. Committing acts of destruction ofpublic property cannot be equated with either the freedom ofspeech in the legislature or with forms of protest legitimatelyavailable to the members of the opposition. To allow theprosecution to be withdrawn in the face of these allegations, inrespect of which upon investigation final report has beensubmitted under Section 173 of the CrPC and cognizance hasbeen taken, would amount to an interference with the normalcourse of justice for illegitimate reasons. Such an action is clearly

Aextraneous to the vindication of the law to which all organs of theexecutive are bound. Hence, the mere finding of the High Courtthat there is no absence of good faith would not result in allowingthe application as necessary consequence, by ignoring the causeof public justice and the need to observe probity in public life.The members of the State Legislature have in their character asBelected representatives public trust impressed upon thedischarge of their duties. Allowing the prosecution to bewithdrawn would only result in singular result, which is that theelected representatives are exempt from the mandate of criminallaw. This cannot be countenanced as being in aid of the broadCends of public justice. [Para 59][835-A-E]

6. Section 197(1) of the CrPC states that cognizance cannotbe taken for an offence allegedly committed by public servant,who is removable with the sanction of the Government, unlessthe sanction of the Government is received.A plain reading ofDSection 197 of the CrPC clarifies that it applies only if the publicservant can be removed from office by or with the sanction of thegovernment. However, MLAs cannot be removed by the sanctionof the government, as they are elected representatives of thepeople of India. They can be removed from office, for instancewhen disqualified under the Xth Schedule of the Constitution forEwhich the sanction of the government is not required. Further,sanction under Section 197 is only required before cognizance istaken by court, and not for the initiation of the prosecution.Thesubmission that the prosecution against the respondent-accusedis vitiated for want of sanction of the Speaker is rejected.F[Para 63-65][838-F-G; 839-B-C; 840-E-F]

P.V. Narasimha Rao vs State (CBI/SPE) etc AIR 1998SC 2120 : [1998] 2 SCR 870 ; K. Veeraswami vs Unionof India (1991) 3 SCC 655 : [1991] 3 SCR 189 ; SatishChandra vs Speaker, Lok Sabha (2014) 2 SCC 178;GRamdas Athawale (5) vs Union of India (2010) 4 SCC1 : [2010] 3 SCR 1059; Attorney General of Ceylon vsde Livera [1963] AC 103 – referred to.

7.1 Article 194(2) is divided into two limbs. The first limbof Article 194(2) which provides the members absolute immunity

with respect of anything said or any vote given in the House is amanifestation of the freedom of speech provided under Article194(1). The second limb of Article 194(2) gives the membersimmunity in respect of the publication of ‘any report, paper, votes,or proceedings’ by or under the authority of the house. The legalimmunity to ‘anything said or any vote given’ in the first limb andthe ‘publication of report, paper, votes, or proceedings’ in thesecond limb of Article 194(2), flow from the freedom of speechthat is provided under Article 194(1). The exercise of thesemanifestations of the freedom of speech – as provided in Article194(2) – has been provided with express immunity. However,the only difference between the two limbs of Article 194(2) isthat the first limb protects the exercise of the freedom, and thesecond limb protects the member against the publication of thesaid exercise of the freedom. The legal proceedings against theexercise of the freedom can only be initiated by those aware ofthe exercise of freedom, which would mean either those who arepresent in the House or those who become aware of it when thespeech, vote or the like, is published. While the freedomsprotected by both the limbs are substantively the same, thesecond limb is clarificatory in the sense that it prevents ‘anyperson’ from initiating proceedings against the exercise offreedom of speech inside the House when they obtain knowledgeof the exercise of the said freedom through publication. Thus,the immunity provided for the exercise of the manifestations ofthe freedom of speech in the second limb of under Article 194(2)cannot exceed the freedom of speech provided in the first limbof Article 194(2). That acts of destruction of public property arenot privileged under the first limb of Article 194(2). Consequently,acts of vandalism cannot be said to be manifestations of thefreedom of speech and be termed as “proceedings” of theAssembly. It was not the intention of the drafters of theConstitution to extend the interpretation of ‘freedom of speech’to include criminal acts by placing them under veil of protest.Hence, the Constitution only grants the members the freedomof speech that is necessary for their active participation inmeaningful deliberation without any fear of prosecution.[Para 80][848-A-G]

A7.2 Moreover, the word ‘proceedings’ in Article 194(2)follows the words ‘any report, paper, votes’. Reports, papers andvotes are actions that are undertaken by the members of theAssembly in their official capacity for participation and deliberationin the House. These are essential functions that member hasto perform in order to discharge her duty to the public as theirBelected representative. On application of the interpretativeprinciple of noscitur sociis, the phrase ‘proceedings’ takes colourfrom the words surrounding it. Since the words associated withthe phrase ‘proceedings’ refer to actions that are exercised bythe members in their official capacity, in furtherance of their officialCfunctions, the meaning of the word ‘proceedings’ must also berestricted to only include such actions.The submissions of theappellant are rejected and it is held that the video recording ofthe incident was not “proceeding” of the Assembly, which wouldbe protected from legal proceedings under Article 194(2).[Paras 81, 82][848-G-H; 849-A-C]DP.V. Narasimha Rao vs State (CBI/SPE) etc AIR 1998SC 2120 : [1998] 2 SCR 870 – referred to.

R vs Chaytor and others [2010] UKSC 52;AttorneyGeneral of Ceylon vs de Livera [1963] AC 103E– referred to.

7.3 The submission that the video recording was notobtained by the investigating authorities with the sanction of theSpeaker; that the video recording belongs to the ElectronicRecord Room of Assembly and as the custodian of the House,Fthe permission of the Speaker is necessary to access this videorecording; and that the video recording lacks the certificationrequired for admissibility of evidence is not relevant and doesnot merit consideration by this Court in an application forwithdrawal of prosecution under Section 321 of the CrPC. TheHigh Court has correctly observed that questions of insufficiencyGof evidence, admissibility of evidence absent certifications etc.,are to be adjudged by the trial court during the stage of trial. It isnot the duty of this Court, in an application under Section 321 ofthe CrPC, to adjudicate upon evidentiary issues and examinethe admissibility or sufficiency of evidence. [Paras 83, 84]H[849-D-F]

Sheonandan Paswan vs State of Bihar & Ors. (1987) 1SCC 288 : [1987] 1 SCR 702 – followed.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.697 of 2021

From the Judgment and Order dated 12.03.2021 of the High Courtof Kerala at Ernakulam in Crl. Revision Petition No.641 of 2020.

With

Criminal Appeal No.698 of 2021

K. Gopalakrishna Kurup, Adv. Gen, Ranjit Kumar, Jaideep Gupta,Sr. Advs., P. Narayanan, Manu V., Jishnu M. L., G. Prakash, RajagopalanNair, P. S. Sudheer, Ms. Anne Mathew, Bharat Sood, Ms. Shruti Jose,Advs. for the petitioner.

AMahesh Jethmalani, V. Chitambares, Sr. Advs., Ravi Sharma,Shoumendu Mukherji, Nachiketa Joshi, Ms. Bharti Tyagi, Mukul Singh,Praneet Pranav, Amit Sharma, Bhaskar Gowtham, Ms. Gunjan Mangla,Ms. Megha Sharma, R. V. Sreejith, Suvin R. Menon, Sayuj Mohandas,Ramesh Babu M. R., T. Asaf Ali, Advs. for the Respondent.

BThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, J.This judgment has been divided into the following sections tofacilitate analysis:

AFactual Background

BSubmissions of Parties

CIssues and Analysis

C.1Withdrawal of prosecution

C.2Immunities and Privileges of MLAs

DC.2.1Position in the United Kingdom

C.2.2Position in India

C.3Privilege to commit acts of public

destruction – An incongruous proposition

C.4Sanction of Speaker

C.5Claiming privilege and inadmissibility ofvideo recordings as evidence

C.5.1Immunity from publication of proceedings ofthe House

C.5.2Inadmissibility of the video recording asevidence

Factual Background

1. Leave granted.

2. The appeals arise out of judgment of Single Judge of theGHigh Court of Kerala dated 12 March 2021. The High Court in theexercise of its revisional jurisdiction under Section 397 of the Code ofCriminal Procedure, 1973[1] upheld the order of the Chief JudicialMagistrate[2], Thiruvananthapuram declining to grant permission to the

1 “CrPC”H2 “CJM”

Public Prosecutor to withdraw the prosecution of the first to sixthrespondents under Section 321 of the CrPC.

3. On 13 March 2015, the then Finance Minister was presentingthe budget for the financial year 2015-2016 in the Kerala LegislativeAssembly. The respondent-accused[3], who at the time were Members ofthe Legislative Assembly[4] belonging to the party in opposition, disruptedthe presentation of the budget, climbed over to the Speaker’s dais anddamaged furniture and articles including the Speaker’s chair, computer,mike, emergency lamp and electronic panel, causing loss of Rs.2,20,093/-. The incident was reported to the Museum Police Station bythe Legislative Secretary. Crime No. 236 of 2015 was registered underSections 447 and 427 read with Section 34 of the Indian Penal Code1860[5] and Section 3(1) of the Prevention of Damage to Public PropertyAct 1984. On the completion of the investigation, the final report underSection 173 of the CrPC was submitted and cognizance was taken bythe Additional CJM, Ernakulam of the said offences[6].

4. On 21 July 2018, an application[7] was filed by the AssistantPublic Prosecutor under Section 321 of the CrPC seeking sanction towithdraw the case against all the respondent-accused. The Prosecutorgave the following reasons for withdrawing the prosecution:

(i)Immunities and privileges: The events transpired during asession of the Legislative Assembly when certain MLAsEprotested against the budget presentation. The ‘protest’ bythe MLAs is protected by the immunities and privilegesunder Article 194(3) of the Constitution of India;

(ii)Breach of privilege: violation of the rights and immunitiesgranted to MLAs is breach of privilege and the LegislativeAssembly is empowered to punish such actions which areoffences against its authority and of disobedience of itslegitimate commands. breach of privilege is contemptof the House, which falls under the exclusive jurisdiction ofthe Speaker of the Assembly;

3 The term “respondent-accused” refers to Respondent Nos 1 to 6 in SLP (Crl) No4009 of 2021 and the petitioners in SLP (Crl) No 4481 of 2021.

4 “MLA”

5 “IPC”

6 C.C No. 151 of 2018.

7 Crl. MP 2577 of 2019.

A(iii)Sanction of the Speaker: An offence which is committed inthe Assembly, during session or in its vicinity by MLAs,cannot be registered by the police without the permissionof the Speaker. Police officers require authorization fromthe ‘competent authority’ to investigate breach of law if itoccurs in the precincts of the Legislative Assembly;B

(iv)Public Interest:The freedoms granted to MLAs arenecessary for the functioning of democracy and are subjectto the powers of the Speaker or the criminal courts withthe sanction of the Speaker. The continuance of the trial ofthe MLAs absent the sanction of the Speaker lowers theCdignity of the Assembly amongst citizens, thereby affectingpublic interest;

(v)Absence of mens rea: According to the charge sheet, theincident occurred during protest by the party in oppositionagainst the presentation of the budget. Thus, it is difficult toDassess the ‘reus’ of the offence;

(vi)Lack of evidence:The statements of witnesses underSection 161 of the CrPC are vague and there is an absenceof proper identification of the persons involved and theirparticipation in the commission of the alleged offence. TheEInvestigating Officer has failed to record the statement ofnatural eye witnesses, that is, the MLAs who were presentin the Assembly Hall, despite the permission of the Speaker.Although this casts doubt on the nature of the investigationconducted, it nonetheless indicates that the prosecution hasa remote chance to prove its case;F

(vii)A copy of the video recording of the incident was procuredfrom the Electronic Control Room of the LegislativeAssembly, without the sanction of the Speaker. The videofootage lacks certification under Section 65B of the IndianEvidence Act 1872 and the admissibility of this evidenceGwould be under challenge in the trial; and

(viii) The Government of Kerala, which owned the property thatwas destroyed, had by an order dated 9 February 2018consented to the withdrawal of the prosecution and hence,the ‘larger public interest’ would be served if the case isHwithdrawn early.

5. The case was transferred to the court of the CJM,Thiruvananthapuram[8]. By an order dated 22 September 2020, the CJMdeclined to give consent to the application of the Prosecutor for thefollowing reasons:

(i)Immunity can be claimed by MLAs only in exercise of freespeech and voting as held by this Court in P.V. NarasimhaRao vs State (CBI/SPE) etc[9]. The alleged offencecommitted by the respondent-accused did not have anynexus with their speech or vote;

(ii)The case against the MLAs was registered at the instanceof the Secretary of the Legislative Assembly and thus, itCcan be assumed that this was within the knowledge of theSpeaker of the Assembly. Accordingly, the argument thatthe case was registered without the permission of theSpeaker does not hold ground;

(iii)Although the Government of Kerala had consented to thewithdrawal of the prosecution, it is erroneous to suggestthat the loss of public property is loss accruing to theGovernment. Damage to public property causes loss tothe public exchequer. The alleged offences are of seriousnature; and

(iv)The role of the court under Section 321 is to assess whetherthe application is made in good faith, in the interests of justiceand public policy, and not to stifle the process of law. Theapplication of the Prosecutor fails to inform the court howthe withdrawal of prosecution in this case would achievethese objectives. Thus, it is presumed that the application isfiled without good faith and is based on external influence.

6. The State of Kerala filed criminal revision petition[10] beforethe High Court. The High Court, by its order dated 12 March 2021dismissed the petition and affirmed the order of the CJM. In doing so,the High Court rejected the argument of the State that prosecuting theMLAs will lower the prestige of the Assembly, and thereby impact publicinterest. The High Court observed that:

8 C.C No. 73 of 2019.9 AIR 1998 SC 2120.10 Crl. Rev. Pet. No. 641 of 2020.

A(i)The conduct of the MLAs cannot be deemed to be infurtherance of the functioning of free democracy, anddoes not warrant the invocation of the immunities andprivileges granted to MLAs;

(ii)There is no provision, either in the Constitution, or in theBRules of Procedure and Conduct of Business in the KeralaAssembly, made pursuant to Article 208(1) of theConstitution, that mandated the police to seek permissionor sanction of the Speaker before registering crime againstthe MLAs; and

C(iii)Insofar as the prosecution raised arguments regardinginadequacy of evidence for successful conviction of therespondent-accused, the judgment of this Court inSheonandan Paswan vs State of Bihar & Ors.[11]indicates that such arguments must be raised by therespondent- accused while seeking discharge before theDMagistrate.

7. While dismissing the petition, the High Court observed that theapplication under Section 321 of the CrPC had been rejected by theCJM for valid reasons. However, the High Court did not find any“justification for the presumption in the order that the petition wasEfiled without good faith and on extraneous influence”

8. The State of Kerala and the respondent-accused have filedindependent SLPs against the order of the High Court before this Court.

Submissions of Parties

F9. Mr Ranjit Kumar, Senior counsel appearing on behalf of theState of Kerala made the following submissions in support of the appeals:

(i)The power of the Public Prosecutor to withdraw from theprosecution for one or more offences of which the accusedis tried can be exercised in furtherance of public justice –Gsocial, economic, and political as held in Rajendra KumanJain vs State through Special Police Establishment &Ors.[12]. The offence that the respondents are accused ofcommitting occurred during the presentation of the State

11 (1987) 1 SCC 288.H12 (1980) 3 SCC 435.

budget, in the premises of the Legislative Assembly. Theiractions are manifestations of effective political participation,and are in furtherance of political purpose which is validground for withdrawal of the prosecution in view of theabove decision;

(ii)The court granting permission for withdrawal fromprosecution performs supervisory and not an adjudicatoryfunction. It must not take it upon itself the burden to reviewthe reasons advanced by the Public Prosecutor but mustonly determine if the Public Prosecutor has applied the mindas “free agent, uninfluenced by irrelevant and extraneousconsiderations”;

(iii)The High Court while deciding the revision against the orderof the CJM has erroneously relied on the dissent of ChiefJustice Bhagwati in Sheonandan Paswan (supra). Themajority opinion in Sheonandan Paswan (supra) wasauthored by Justice Khalid for himself and Justice Natarajan,while Justice Venkataramiah authored separate butconcurring judgment;

(iv)The incident in relation to which the complaint was filed,took place on the floor of the Kerala Legislative Assemblyduring the presentation of the budget by the FinanceMinister. Since the incident happened inside the House,prosecution cannot be initiated without the sanction of theSpeaker, who is the presiding officer of the LegislativeAssembly. The dictum in P.V. Narasimha (supra) that thesanction of the Speaker of the House is required for theregistration of an offence against any MLA is not restrictedto offences under the Prevention of Corruption Act, 1988;

(v)The genesis of the incident lies in political protest insidethe House. Certain women MLAs had been physicallyassaulted leading to an FIR being registered. There was aprotest against the Finance Minister during the presentationof the budget and the incident was manifestation of thatprotest. In this backdrop decision was taken to bring aquietus to the incident, and the Government considered itappropriate to advise the Public Prosecutor to withdrawthe prosecution;

796SUPREME COURT REPORTS

A(vi)The actions of the respondent-accused are manifestationof their right to protest which is facet of the freedom ofspeech and expression. Article 194 of the Constitutionprovides that no proceedings shall be initiated in the courtfor the exercise of the freedom of speech by MLAs insidethe precincts of the Legislative Assembly. Moreover, theseBactions took place during the course of the budgetpresentation and bear close nexus to the right to votewhich is protected under Article 194. Further, the video ofthe incident of 13 March 2015 that was procured from theElectronic Control Room is publication of the proceedingsCof the House. Under Article 194(2), no member shall beheld liable in respect of publication of any proceedings insidethe House; and

(vii)The High Court despite finding that no mala fides can beattributed to the petition for withdrawal initiated by the PublicDProsecutor, upheld the order of the CJM declining consentfor the withdrawal. By doing so, the High Court hasexercised an adjudicatory function, reviewing the groundsprovided by the Public Prosecutor as opposed to theestablished principles laid down in Rajendra Kumar Jain(supra) and Sheonandan Paswan (supra) where it hasEbeen held that the court can only exercise supervisoryjurisdiction.

10. Mr Jaideep Gupta, learned Senior counsel appearing on behalfof the respondent-accused and in support of the appeal in the companioncase, urged that:F

(i)There is clear difference in the approach of the majorityand the minority judgments in Sheonandan Paswan(supra). The judgments of the majority require the court todetermine whether the Public Prosecutor has improperlyexercised their powers, interfered with the normal courseGof justice or exercised powers for illegitimate purposes. Theminority cuts down the scope of Section 321 by imposingconditions which are not accepted by the majority opinions.While the majority focusses on the function of the PublicProsecutor, the minority dwelt on the purity of theHadministration of justice;

(ii)Since the CJM did not apply the correct principles, the HighACourt in the exercise of its revisional jurisdiction underSection 397 of the CrPC ought to have intervened to correctthe decision; and

(iii)The real test is whether the decision of the Public prosecutorwill destroy the administration of justice. This has to beBanswered in the negative and hence the application forwithdrawal ought to be allowed.

11. On the other hand, Mr Mahesh Jethmalani and Mr V.Chitambaresh, Senior counsel, and Mr Ramesh Babu, Advocate-On-Record, appearing on behalf of Respondent Nos 7 and 8[13], opposed thestand of the appellants and the respondent-accused, urging that:

(i)The exercise of the freedom of speech by the MLAs insidethe House does not embrace within it the right to destroyproperty. The privileges under Article 194 cannot be usedas cover for violent actions of members in the precinctsof the legislative assembly;

(ii)The decision of this court in Lokayukta, JusticeRipusudan Dayal (Retired) and Ors. vs State ofMadhya Pradesh & Ors.[14]holds that privilege can onlybe provided to the extent required so as to allow the membersto perform their functions without hindrance. claim ofprivilege cannot be used as shield to circumvent theapplication of criminal law since no person enjoys privilegeagainst criminal prosecution;

(iii)The observation in P.V Narasimha Rao (supra) on themandatory prior sanction of the Speaker was only madewith specific reference to Section 19 of Prevention ofCorruption Act, 1988.[15] Section 19 provides that for the

13 Respondent Nos 7 and 8 were impleaded as parties before the High Court of Keralaby order dated 12 March 2021 in Crl. M. Appl. 3 of 2021 and Crl. M. Appl. 4 of 2021,respectively.

14 (2014) 4 SCC 473.

15 “19. Previous sanction necessary for prosecution.- (1) No court shall take cognizanceof an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have beencommitted by public servant, except with the previous sanction,—

(a) in the case of person who is employed in connection with the affairs of the Unionand is not removable from his office save by or with the sanction of the CentralGovernment, of that Government;

prosecution of public servant for offences under the Act,the sanction of the authority competent to remove the saidperson is required. Since no such authority is specified forMPs, three judges in P.V Narasimha Rao (supra) heldthat until Parliament so specifies, the Speaker would becompetent to grant sanction to prosecute under Section19. The observation cannot be construed to have generalapplication to mean that the previous sanction of the Speakeris required to prosecute the members of the House for anyoffence, other than under the Prevention of Corruption Act,1988;

(iv)Section 197 of CrPC[16] is not applicable to MLAs sincethey cannot be removed from office by or with the sanctionof the Government, which is pre-requisite for theapplication of the provision. Even otherwise, the sanctionunder Section 197 of the CrPC is not required at the initialDstage of commencing prosecution but only at later stageafter cognizance is taken;

(v)The High Court has incorrectly relied on the minority opinionauthored by Justice Bhagwati in Sheonandan Paswan(supra). However, both Justice Khalid in his majority opinion,Eand Justice Venkataramiah in his concurring opinion heldthat this Court must restrain itself from interfering with theconcurrent findings of the lower courts, either accepting orrejecting the withdrawal petition filed by the PublicProsecutor. Since the CJM dismissed the withdrawal petitionin the present case and the High Court dismissed the revisionFpetition against the order of the CJM, this Court must refrainfrom interfering with the concurrent findings of the courtsbelow under Article 136 of the Constitution; and(b) in the case of person who is employed in connection with the affairs of State andis not removable from his office save by or with the sanction of the State Government,Gof that Government;(c) in the case of any other person, of the authority competent to remove him from hisoffice. […]”.

16 “197. Prosecution of Judges and public servants: (1) When any person who is or wasa Judge or Magistrate or public servant not removable from his office save by or withthe sanction of the Government is accused of any offence alleged to have been committedby him while acting or purporting to act in the discharge of his official duty, no CourtHshall take cognizance of such offence except with the previous sanction […]”.

(vi)In the present case this court must be guided by: (a) theAconcurrent findings on the illegality of the application forwithdrawal; (b) the overriding aspect of public interest; and(c) the object of the law. The provisions of the legislationenacted by Parliament for prosecuting damage to publicproperty make its intent clear. Section 3 of the PreventionBof Damage to Public Property Act 1984 provides minimumsentence of six months and Section 5 has adopted specialprovision on bail, whereby it is necessary to give prosecutionan opportunity to oppose the application for bail. Theseprovisions are similar to provisions for bail in the NarcoticsDrugs and Psychotropic Substance Act, 1951, whichCindicate the intention of the Parliament to consider damageto public property as grave offence.

Issues and Analysis

12. Having adverted to the submissions of the parties, we shallnow turn to the issues raised before this Court. The question before thisCourt is centred on the exercise of power by the Public Prosecutorunder Section 321 and the exercise of jurisdiction by the CJM. Beforeassessing the submissions of the parties, we find it necessary to discussthe position of the law on this point.

C.1 Withdrawal of prosecution

13. Section 321 of the CrPC reads as follows:

“321. Withdrawal from prosecution. The Public Prosecutor orAssistant Public Prosecutor in charge of case may, with theconsent of the Court, at any time before the judgment is pronounced,withdraw from the prosecution of any person either generally orin respect of any one or more of the offences for which he istried; and, upon such withdrawal,-

(a) if it is made before charge has been framed, the accusedshall be discharged in respect of such offence or offences;

(b) if it is made after charge has been framed, or when underGthis Code no charge is required, he shall be acquitted in respect ofsuch offence or offences:

Provided that where such offence-

(i) was against any law relating to matter to which the executivepower of the Union extends, or

[2021] 6 S.C.R.

A(ii) was investigated by the Delhi Special Police Establishmentunder the Delhi Special Police Establishment Act, 1946 (25 of1946 ), or

(iii) involved the misappropriation or destruction of, or damage to,any property belonging to the Central Government, or

B(iv) was committed by person in the service of the CentralGovernment while acting or purporting to act in the discharge ofhis official duty, and the Prosecutor in charge of the case has notbeen appointed by the Central Government, he shall not, unlesshe has been permitted by the Central Government to do so, moveCthe Court for its consent to withdraw from the prosecution andthe Court shall, before according consent, direct the Prosecutorto produce before it the permission granted by the CentralGovernment to withdraw from the prosecution.”14. The powers under Section 321 of the CrPC have beenDinterpreted by this Court on number of occasions. In State of Biharvs Ram Naresh Pandey & Anr.[17], three-judge Bench of this Courtanalysed Section 494 of the earlier Code of Criminal Procedure 1898(similar to Section 321 of the CrPC). Justice B. Jagannadhadas observedthat in granting consent to withdraw prosecution, the court exercises ajudicial function. However, in doing so, the court need not determine theEmatter judicially. The court only needs to be satisfied that “the executivefunction of the Public Prosecutor has not been improperly exercised,or that it is not an attempt to interfere with the normal course ofjustice for illegitimate reasons or purposes”. This Court also observedthat the Magistrate’s power under Section 494 was to prevent abuse ofFpower of the executive. Addressing the question of whether insufficiencyof evidence is ground for withdrawal of prosecution, the Court heldthat :

“9. […] we find it difficult to appreciate why the opinionarrived at by both the trial court and the Sessions CourtGthat the view taken of that material by the Public Prosecutorviz. that it was meagre evidence on which no convictioncould be asked for, should be said to be so improper thatthe consent of the Court under Section 494 of the Code ofCriminal Procedure has to be withheld. Even the private

H17 AIR 1957 SC 389.

complainant who was allowed to participate in these proceedingsin all its stages, does not, in his objection petition, or revision petitions,indicate the availability of any other material or better material.Nor, could the complainant’s counsel, in the course of argumentsbefore us inform us that there was any additional material available.In the situation, therefore, excepting for the view that no order towithdraw should be passed in such cases either as matter oflaw or as matter of propriety but that the matter should [b]edisposed of only after the evidence is judicially taken, we apprehendthat the learned Chief Justice himself would not have felt calledupon to interfere with the order of the Magistrate in the exerciseof his revisional jurisdiction.”

(emphasis supplied)

15. In M.N Sankarayaraynan Nair vs P.V Balakrishnan[18], thisCourt held that the powers conferred on the Prosecutor under Section494 of the Code of Criminal Procedure 1898 are to be exercised in“”furtherance of the object of law. On the power of the court to grantconsent, Justice P. Jaganmohan Reddy observed that

“8. […] The Court also while considering the request to grantpermission under the said section should not do so as necessaryformality — the grant of it for the mere asking. It may do soonly if it is satisfied on the materials placed before it thatthe grant of it subserves the administration of justice andthat permission was not being sought covertly with anulterior purpose unconnected with the vindication of thelaw which the executive organs are in duty bound to furtherand maintain.”

(emphasis supplied)

16. In Rajender Kumar Jain vs State through Special PoliceEstablishment and Ors.[19], there was an application for the withdrawalof the prosecution against Mr George Fernandes, Chairperson of theSocialist Party of India. Mr Fernandes had been accused of rousingresistance against the Emergency imposed in 1975 and of participatingin conspiracy to do acts which may have resulted in the destruction ofproperty. After the Emergency was revoked, the Special Public

18 (1972) 1 SCC 318.19 (1980) 3 SCC 435.

AProsecutor filed an application under Section 321 of the CrPC ‘in viewof the changed circumstances and public interest’. Given the politicalbackground of the dispute, two judge bench of this Court, speakingthrough Justice O. Chinnappa Reddy highlighted the importance of theindependence of the Public Prosecutor in exercising the power underSection 321 of the CrPC. In the context of withdrawal of prosecutionBwhere matters of public policy are involved, the Court held that:

“16. In the past, we have often known how expedient andnecessary it is in the public interest for the public prosecutor towithdraw from prosecutions arising out of mass agitations,communal riots, regional disputes, industrial conflicts, student unrestCetc. Wherever issues involve the emotions and there is asurcharge of violence in the atmosphere it has often beenfound necessary to withdraw from prosecutions in order torestore peace, to free the atmosphere from the surchargeof violence, to bring about peaceful settlement of issuesDand to preserve the calm which may follow the storm. Topersist with prosecutions where emotive issues are involved inthe name of vindicating the law may even be utterly counter-productive. An elected Government, sensitive and responsive tothe feelings and emotions of the people, will be amply justified iffor the purpose of creating an atmosphere of goodwill or for theEpurpose of not disturbing calm which has descended it decidesnot to prosecute the offenders involved or not to proceed furtherwith prosecution already launched. In such matters who but theGovernment can and should decide, in the first instance, whetherit should be baneful or beneficial to launch or continueFprosecutions. If the Government decides that it would be in thepublic interest to withdraw from prosecutions, how is theGovernment to go about this task?

17. Under the Code of Criminal Procedure it is the PublicProsecutor that has to withdraw from the prosecution and it is theGcourt that has to give its consent to such withdrawal. […] it is hethat is entrusted with the task of initiating the proceeding forwithdrawal from the prosecution. But, where such large andsensitive issues of public policy are involved, he must, ifhe is right-minded, seek advice and guidance from thepolicy- makers. His sources of information and resources areHof very limited nature unlike those of the policy-makers. If the

policy- makers themselves move in the matter in the firstinstance, as indeed it is proper that they should wherematters of momentous public policy are involved, and if theyadvise the Public Prosecutor to withdraw from theprosecution, it is not for the court to say that the initiativecomes from the Government and therefore the PublicProsecutor cannot be said to have exercised free mind.Nor can there be any quibbling over words. If ill informed butwell meaning bureaucrats choose to use expressions like “thePublic Prosecutor is directed” or “the Public Prosecutor isinstructed”, the court will not on that ground alone stultify thelarger issue of public policy by refusing its consent on the groundthat the Public Prosecutor did not act as free agent when hesought withdrawal from the prosecution. What is at stake is notthe language of the letter or the prestige of the Public Prosecutorbut wider question of policy. The court, in such situation isto make an effort to elicit the reasons for withdrawal andsatisfy itself, that the Public Prosecutor too was satisfiedthat he should withdraw from the prosecution for good andrelevant reasons.”

Thus the fact that the withdrawal was initiated by the governmentwas held not to vitiate the application, so long as the Public Prosecutorhad independently applied his mind. Elaborating on the scope ofwithdrawal on the ground of public justice, and in particular the ambit ofthe expression ‘political offence’, the Court held:

“19.[…] For our present purpose it is really unnecessary for us toenter into discussion as to what are political offences except ina sketchy way. It is sufficient to say that politics are aboutGovernment and therefore, political offence is onecommitted with the object of changing the Government ofa State or inducing it to change its policy. Mahatma Gandhi,the father of the Nation, was convicted and jailed for offencesagainst the municipal laws; so was his spiritual son and the firstPrime Minister of our country.

21. To say that an offence is of political character is not toabsolve the offender of the offence. But the question is, is it avalid ground for the Government to advise the Public Prosecutor

Ato withdraw from the prosecution? We mentioned earlier thatthe Public Prosecutor may withdraw from the prosecutionof case not merely on the ground of paucity of evidencebut also in order to further the broad ends of public justiceand that such broad ends of public justice may well includeappropriate social, economic and political purposes. It isBnow matter of history that the motivating force of the partywhich was formed to fight the elections in 1977 was the same asthe motivating force of the criminal conspiracy as alleged in theorder sanctioning the prosecution; only the means were different.The party which came to power as result of 1977 electionsCchose to interpret the result of the elections as mandate of thepeople against the politics and the policy of the party led by ShrimatiGandhi. Subsequent events leading up to the 1980 elections whichreversed the result of the 1977 elections may cast doubt whethersuch interpretation was correct; only history can tell. But, if theGovernment of the day interpreted the result of the 1977 electionsDas mandate of the people and on the basis of that interpretationthe Government advised the Public Pr[o]secutor to withdraw fromthe prosecution, one cannot say that the Public Prosecutor wasactivated by any improper motive in withdrawing from theprosecution nor can one say that the Magistrate failed to exerciseEthe supervisory function vested in him in giving his consent.”

(emphasis supplied)

17. The locus classicus on the interpretation of the powersconferred by Section 321 of the CrPC is the decision of the ConstitutionBench in Sheonandan Paswan (supra). In this case, the Board ofFDirectors of the Patna Urban Cooperative Bank was charged withmisdemeanours such as misappropriation of the funds of the bank bygiving multiple loans to the same person under different names andapproving loans for fictitious persons. The Registrar of CooperativeSocieties at the instance of the Reserve Bank of India directed legalaction to be initiated against the stakeholders. On investigation, statementsGwere made against Dr Jagannath Mishra, the ex-Chief Minister of Bihar,and it was alleged that he misused his office and made illegal personalgains for himself while holding office of the Chief Minister. chargesheet was filed and the CJM took cognizance of the matter. However,before the case could progress further, Dr Mishra once again took oathHas the Chief Minister of Bihar and communication was issued by the

Government that it had decided to withdraw the case. withdrawalapplication was filed by the Public Prosecutor on grounds of lack ofevidence, implication due to political vendetta, and that the prosecutionwould be against public policy and public interest. The CJM gave consentfor the withdrawal, and the High Court affirmed the order of the CJM.

18. When the matter came up before this Court, the appeal wasdismissed by 2:1 majority. review petition was allowed, and the scopeof Section 321 of the CrPC was addressed by Constitution Bench.Chief Justice Bhagwati in his minority opinion held that in case wherea withdrawal petition has been filed on the ground of paucity of evidence,after the charge sheet has been filed but before the charge has beenframed in warrant case, the exercise of power by the court grantingconsent is similar to the power of the court to discharge the accusedunder Section 239 of the CrPC[20]. Hence, in such cases, it would not becompetent for the public prosecutor to file withdrawal petition unlessthere is material change in the evidence. The Chief Justice was of theopinion that the court must take up the exercise of discharge in suchcases since it would carry greater conviction with the people. Heobserved:

“30. The second qualification[..] What the court, therefore, doeswhile exercising its function under Section 239 is to consider thepolice report and the document sent along with it as also anystatement made by the accused if the court chooses to examinehim. And if the court finds that there is no prima facie case againstthe accused the court discharges him. But that is precisely whatthe court is called upon to do when an application for withdrawalfrom the prosecution is made by the Public Prosecutor on theground that there is insufficient or no evidence to support theprosecution. There also the court would have to consider thematerial placed before it on behalf of the prosecution for thepurpose of deciding whether the ground urged by the PublicProsecutor for withdrawal of the prosecution is justified or notand this material would be the same as the material before the

20 “Section 239: When accused shall be discharged: If, upon considering the policereport and the documents sent with it under section 173 and making such examination,if any, of the accused as the Magistrate thinks necessary and after giving the prosecutionand the accused an opportunity of being heard, the Magistrate considers the chargeagainst the accused to be groundless, he shall discharge the accused, and record hisreasons for so doing.”

Acourt while discharging its function under Section 239. If the courtwhile considering an application for withdrawal on theground of insufficiency or absence of evidence to supportthe prosecution has to scrutinise the material for thepurpose of deciding whether there is in fact insufficientevidence or no evidence at all in support of the prosecution,Bthe court might as well engage itself in this exercise whileconsidering under Section 239 whether the accused shallbe discharged or charge shall be framed against him. It isan identical exercise which the court will be performingwhether the court acts under Section 239 or under SectionC321. If that be so, we do not think that in warrant caseinstituted on police report the Public Prosecutor shouldbe entitled to make an application for withdrawal from theprosecution on the ground that there is insufficient or noevidence in support of the prosecution. “

(emphasis supplied)

19. Justice Khalid (speaking for himself and Justice Natarajan)rendered the majority opinion holding that the power of the court togrant consent for withdrawal petition is similar to the power underSection 320 of the CrPC to compound offences. The court in both theEcases will not have to enquire into the issue of conviction or acquittal ofthe accused person, and will only need to restrict itself to providing consentthrough the exercise of jurisdiction in supervisory manner. It was heldthat though Section 321 does not provide any grounds for seekingwithdrawal, “public policy, interest of administration, inexpediency toproceed with the prosecution for reasons of State, and paucity ofFevidence” are considered valid grounds for seeking withdrawal. Further,it was held that the court in deciding to grant consent to the withdrawalpetition must restrict itself to only determining if the Prosecutor hasexercised the power for the above legitimate reasons:

“73 […]When an application under Section 321 CrPC is made, itGis not necessary for the court to assess the evidence to discoverwhether the case would end in conviction or acquittal. To contendthat the court when it exercises its limited power of giving consentunder Section 321 has to assess the evidence and find out whetherthe case would end in acquittal or conviction, would be to rewriteHSection 321 CrPC and would be to concede to the court power

which the scheme of Section 321 does not contemplate. Theacquittal or discharge order under Section 321 are not the sameas the normal final orders in criminal cases. The conclusion willnot be backed by detailed discussion of the evidence in the caseof acquittal or absence of prima facie case or groundlessness inthe case of discharge. All that the court has to see is whetherthe application is made in good faith, in the interest of publicpolicy and justice and not to thwart or stifle the process oflaw. The court after considering these facets of the case,will have to see whether the application suffers from suchimproprieties or illegalities as to cause manifest injusticeif consent is given. In this case, on reading of the applicationfor withdrawal, the order of consent and the other attendantcircumstances, I have no hesitation to hold that the application forwithdrawal and the order giving consent were proper and strictlywithin the confines of Section 321 CrPC.

78. The section gives no indication as to the grounds on which thePublic Prosecutor may make the application, or the considerationson which the court is to grant its consent. The initiative is that ofthe Public Prosecutor and what the court has to do is only to giveits consent and not to determine any matter judicially. The judicialfunction implicit in the exercise of the judicial discretionfor granting the consent would normally mean that the courthas to satisfy itself that the executive function of the PublicProsecutor has not been improperly exercised, or that it isnot an attempt to interfere with the normal course of justicefor illegitimate reasons or purposes.”

(emphasis supplied)

The Court also held that while granting or denying consent to awithdrawal petition, the court is not to review the purported groundswarranting withdrawal that the public prosecutor has provided, but mustonly make sure that it is for legitimate purpose, initiated without malafides.

20. Both, Justice Khalid in his majority opinion and JusticeVenkataramiah (as the learned Chief Justice then was) in his concurringopinion, held that this Court must be circumspect in interfering with theconcurrent findings of the courts below, allowing or dismissing the

Awithdrawal petition. Highlighting that this Court is not court of factsand evidence it was observed:

“89. An order passed under Section 321 comes to this Court byspecial leave, under Article 136 of the Constitution of India. Theappeal before us came thus. It has been the declared policy ofBthis Court not to embark upon roving enquiry into the facts andevidence of cases like this or even an order against discharge.This Court will not allow itself to be converted into courtof facts and evidence. This Court seldom goes intoevidence and facts. That is as it should be. Any departurefrom this salutary self-imposed restraint is not healthyCpractice and does not commend itself to me. It is necessaryfor this Court to remember that as an apex court, anyobservation on merits or on facts and evidence of casewhich has to go back to the courts below will seriouslyprejudice the party affected and it should be the policy ofDthis Court not to tread upon this prohibited ground andinvite unsavoury but justifiable criticism. Is this Court toassess the evidence to find out whether there is case for acquittalor conviction and convert itself into trial court? Or is this Courtto order retrial and examination of hundred witnesses to find outwhether the case would end in acquittal or conviction? Either ofEthese conclusions in the case is outside the scope of Section 321.This can be done only if we rewrite Section 321.”

(emphasis supplied)

21. The decision in Sheonandan Paswan (supra) has held theFground since then. An instance of its application was when this Courtdealt with the withdrawal of prosecution of an MLA for offences involvingmisappropriation of public money. In Yerneni Raja Ramchandar vsState of Andhra Pradesh & Ors.[21], the appellant, an MLA, was accusedof fabricating hospital records to repeatedly claim medical reimbursementfor sum of Rs. 2,89,489, Rs. 1,33,939, and Rs. 1,22,825 from theGGovernment. Amounts of Rs. 289,489, Rs. 60,000 and Rs. 60,000 weresanctioned by the Government time and again in response to theserequests. Charges of misappropriation were levelled against him. Sincethe appellant was an MLA, the matter was referred to the EthicsCommittee of the Legislative Assembly, where the appellant tendered

H21 (2009) 15 SCC 604.

an apology and refunded Rs. 60,000 to the Government. Pursuant tothis, the Ethics Committee recommended withdrawal of the prosecutionagainst the appellant. The State Government also issued an order requiringthe District Collector to direct the Prosecutor to withdraw the case.Multiple applications for withdrawal of prosecution were made, whichwere dismissed by the Magistrate. These, however, were ultimatelyallowed by the High Court. In refusing to allow the withdrawal of theprosecution against the appellant, this Court opined that in view of decisionin Sheonandan Paswan (supra), the power of judicial review of theHigh Court was limited. It could have only interfered if there was anerror of law committed by the Magistrate. Further, the Court alsoconsidered the implication of the disciplinary action taken by the EthicsCommittee of the Legislative Assembly on the withdrawal of prosecutionunder Section 321 of the CrPC. Justice SB Sinha, speaking for the two-judge Bench, held that“15. The Ethics Committee of the legislature of the State of AndhraPradesh was empowered to deal with the disciplinary action orotherwise which may be taken against the Members of theLegislative Assembly. criminal case against Member of theLegislative Assembly, ordinarily, should be allowed to be continuedon its own merit, particularly, in the light of the facts of the presentmatter wherein the High Court had refused to interfere at theearlier stages of the proceedings. We have also noticedhereinbefore that the High Court, in fact, had not only beenmonitoring the investigation, but also directed the learned trial Judgeto complete the trial within period of three months. The actionon the part of the State to issue the said government order despitethe earlier orders of the High Court must be considered keepingin view the said factual matrix.

18. The government order was issued even according to the Statein terms of the recommendations made by the Ethics Committeealone. […] The Ethics Committee had no jurisdiction to makesuch recommendations. If the State had acted on the basisof recommendations made by body who had no role toplay, its action would be vitiated in law, recommendationsof the Ethics Committee being unauthorised, the action ofthe State would attract the doctrine of malice in law.

A19. Even otherwise, the action on the part of the State, in ouropinion, suffers from malice on fact as well. The State is theprotector of law. When it deals with public fund, it must act interms of the procedure established by law. In respect of publicfund, the doctrine of public trust would also be applicableso far as the State and its officers are concerned. It couldBnot, save and except for very strong and cogent reasons,have issued the said government order despite the ordersof the High Court.”

(emphasis supplied)

22. In offences involving the violation of public trust by executiveCor legislative authorities, this Court has evaluated the gravity of theoffence and the impact of the withdrawal of prosecution on public life.In Bairam Muralidhar vs State of Andhra Pradesh[22], the Prosecutorwas seeking withdrawal of the prosecution against police officerwho had been accused of demanding bribe in exchange of not implicatingDa particular individual for an offence of kidnapping and for reducing thecharges against the individual’s son. The police officer was accused ofoffences under Sections 7 and 13(1) of the Prevention of CorruptionAct 1988. An application under Section 321 of the CrPC was filed bythe Prosecutor based on the fact that the Government had issued anorder for withdrawal of prosecution against the officer given hisEmeritorious service and directed that his case be placed before theAdministrative Tribunal for disciplinary proceedings. This Court affirmedthe concurrent findings of the High Court and the Trial Court and rejectedthe application for withdrawal. Justice Dipak Misra (as he then was),speaking on behalf of the two judge Bench, held that

F“19. In the case at hand, as the application filed by the PublicProsecutor would show that he had mechanically stated aboutthe conditions precedent, it cannot be construed that he has reallyperused the materials and applied his independent mind solelybecause he has so stated. The application must indicateperusal of the materials by stating what are the materialsGhe has perused, may be in brief, and whether suchwithdrawal of the prosecution would serve public interestand how he has formed his independent opinion. As weperceive, the learned Public Prosecutor has been totallyguided by the order of the Government and really notH22 (2014) 10 SCC 380.

applied his mind to the facts of the case. The learned trialJudge as well as the High Court has observed that it is caseunder the Prevention of Corruption Act. They have taken note ofthe fact that the State Government had already granted sanction.It is also noticeable that the Anti- Corruption Bureau has foundthere was no justification of withdrawal of the prosecution.

22. We have referred to these authorities only to show thatin the case at hand, regard being had to the gravity of theoffence and the impact on public life apart from the natureof application filed by the Public Prosecutor, we are of theconsidered opinion that view expressed by the learned trialJudge as well as the High Court cannot be found fault with.We say so as we are inclined to think that there is no ground toshow that such withdrawal would advance the cause of justiceand serve the public interest. That apart, there was no independentapplication of mind on the part of the learned Public Prosecutor,possibly thinking that the court would pass an order on mereasking.”

(emphasis supplied)

23. The principles which emerge from the decisions of this Courton the withdrawal of prosecution under Section 321 of the CrPC cannow be formulated:

(i)Section 321 entrusts the decision to withdraw from aprosecution to the public prosecutor but the consent of thecourt is required for withdrawal of the prosecution;

(ii)The public prosecutor may withdraw from prosecutionnot merely on the ground of paucity of evidence but also tofurther the broad ends of public justice;

(iii)The public prosecutor must formulate an independent opinionbefore seeking the consent of the court to withdraw fromthe prosecution;

(iv)While the mere fact that the initiative has come from thegovernment will not vitiate an application for withdrawal,the court must make an effort to elicit the reasons forwithdrawal so as to ensure that the public prosecutor wassatisfied that the withdrawal of the prosecution is necessaryfor good and relevant reasons;

A(v)In deciding whether to grant its consent to withdrawal,the court exercises judicial function but it has beendescribed to be supervisory in nature. Before decidingwhether to grant its consent the court must be satisfiedthat:

(a)The function of the public prosecutor has not beenimproperly exercised or that it is not an attempt tointerfere with the normal course of justice forillegitimate reasons or purposes;

(b)The application has been made in good faith, in theCinterest of public policy and justice, and not to thwartor stifle the process of law;

(c)The application does not suffer from suchimproprieties or illegalities as would cause manifestinjustice if consent were to be given;

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

(e)The permission has not been sought with an ulteriorpurpose unconnected with the vindication of the lawwhich the public prosecutor is duty bound to maintain;

(vi)While determining whether the withdrawal of theprosecution subserves the administration of justice, the courtwould be justified in scrutinizing the nature and gravity ofthe offence and its impact upon public life especially whereFmatters involving public funds and the discharge of publictrust are implicated; and

(vii)In situation where both the trial judge and the revisionalcourt have concurred in granting or refusing consent, thisCourt while exercising its jurisdiction under Article 136 ofGthe Constitution would exercise caution before disturbingconcurrent findings. The Court may in exercise of the well-settled principles attached to the exercise of this jurisdiction,interfere in case where there has been failure of thetrial judge or of the High Court to apply the correct principlesin deciding whether to grant or withhold consent.H

C.2 Immunities and Privileges of MLAs

24. Articles 105 and 194 of the Constitution provide in similarterms for the privileges and immunities of Members of Parliament[23] andMLAs respectively. Article 194 of the Constitution is extracted below:

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

(1) Subject to the provisions of this Constitution and to the rulesand standing orders regulating the procedure of the Legislature,there shall be freedom of speech in the Legislature of every State.

(2) No member of the Legislature of State shall be liableto any proceedings in any court in respect of anything saidor any vote given by him in the Legislature or anycommittee thereof, and no person shall be so liable inrespect of the publication by or under the authority of aHouse of such Legislature of any report, paper, votes orproceedings.

(3) In other respects, the powers, privileges and immunities of aHouse of the Legislature of State, and of the members and thecommittees of House of such Legislature, shall be such as mayfrom time to time be defined by the Legislature by law, and, untilso defined, shall be those of that House and of its members andcommittees immediately before the coming into force of Section26 of the Constitution forty fourth Amendment Act, 1978.

(4) The provisions of clauses (1), (2) and (3) shall apply in relationto persons who by virtue of this Constitution have the right tospeak in, and otherwise to take part in the proceedings of Houseof the Legislature of State or any committee thereof as theyapply in relation to members of that Legislature.”

(emphasis supplied)

25. Clause 1 of Article 194 recognizes the freedom of speech inthe legislature of every State. However, the freedom recognized by clause1 is subject to the provisions of the Constitution and standing ordersregulating the procedure of the State Legislatures. Clause 2 enunciatesa rule of immunity which protects member of the legislature from

Aproceeding in any court “in respect of anything said or vote given” inthe legislature or in any committee of the legislature. Moreover it providesa shield against any liability for publication of report, paper, votes orproceedings by or under the authority of the House. Further, clause 3 ofArticle 194 provides that in other respects the privileges and immunitiesare such as defined by law. Until defined by law – there being presentlyBno law on the subject – the privileges and immunities of the members ofthe House and its committees shall be such as were in existence beforeSection 26 of the Forty-Fourth Amendment to the Constitution cameinto force. According to clause 4, the privileges and immunities alsoattach to those who have right to speak in and participate in theCproceedings of the House or its committees.

26. At the time of the adoption of the Constitution, clause 3 ofArticle 194 provided that the privileges, immunities and powers of aHouse of the Legislature of State (and of its members and committees)shall be such as may from time to time be defined by the legislature byDlaw, and until so defined, shall be those of the House of Commons of theParliament of the United Kingdom at the commencement of theConstitution. By Section 34 of the Forty- Second Amendment to theConstitution, clause (3) of Article 194 was amended and embodied atransitory provision under which until the powers, privileges andimmunities of House of the legislature of State (and of the membersEand its committees) were defined by law made by the legislature, theyshall be those of the British House of Commons and the privileges ofeach House “shall be such as may from time to time be evolved by suchHouse”. However, Section 34 was not brought into force by issuing anotification under Section 1(2) of the Constitution (Forty-Second)FAmendment Act 1976. Eventually, clause (3) in its present form wassubstituted by Section 26 of the Constitution (Forty-Fourth) AmendmentAct 1978 with effect from 20 June 1979[24]. The present position of clause(3) is that:

24 Section 26 of the Constitution (Forty-fourth Amendment) Act 1978, w.e.f. 20 JuneG1979, read as follows:“26. In article 194 of the Constitution, in clause (3), for the words “shall be those of theHouse of commons of the Parliament of the United Kingdom and of its members andcommittees, at the commencement of this Constitution”, the words, figures and brackets“shall be those of that House and of its members and committees immediately beforethe coming into force of section 26 of the Constitution (Forty fourth Amendment) ActH1978” shall be substituted.”

(i)The ultimate source of the powers, privileges and immunitiesof House of State Legislature and of the members andcommittees would be determined by way of legislation;

(ii)Until such legislation is enacted, the position as it stoodimmediately before the coming into force of Section 26 ofthe Forty-Fourth Amendment Act 1978 would govern; and

(iii)The amendment to the Constitution introducing the conceptof evolution of privileges and immunities by the House ofthe legislature never came into force and now standsdeleted.

C.2.1 Position in the United Kingdom

27. Now, in this backdrop, it would be necessary to assess at theoutset the nature of the privileges and immunities referable to the Houseof Commons in the United Kingdom. Erskine May’s ParliamentaryPractice[25], provides comprehensive statement of law, indicating thephases through which Parliamentary privilege evolved in the UK.

First phase

The first phase of the conflict between Parliament and the courtswas “about the relationship between the lex parliament and the commonlaw of England”. In this view, the House of Parliament postulated that“they alone were the judges of the extent and application of their ownprivileges, not examinable by any court or subject to any appeal”. Thefirst phase of the conflict, has been described thus:

“The earlier views of the proper spheres of court and Commonswere much influenced by political events and the constitutionalchanges to which they gave rise. Coke in the early seventeenthcentury regarded the law of Parliament as particular law, distinctfrom the common law. For that reason “judges ought not to giveany opinion of matter of Parliament, because it is not to bedecided by the common laws but secundum legem etconsuetudinem parliament[26].”

However, even during this period, “elements of the opposing viewthat – decision of Parliament on matters of privilege can be called in

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

Aquestion in other courts, that the lex parliament is part of the commonlaw and known to the courts, and that resolutions at either Housedeclaratory of privilege will not bind the courts- are found at almost asearly date, and they gained impetus as time went by”.

Second phaseB

Erskine May tells us that in the second phase of the nineteenthcentury:

“…some of the earlier claims to jurisdiction made in the name ofprivilege by the House of Commons were untenable in court oflaw: that the law of Parliament was part of the general law, thatCits principles were not beyond the judicial knowledge of the judges,and that the duty of the common law to define its limits could nolonger be disputed. At the same time, it was established that therewas sphere in which the jurisdiction of the House of Commonswas absolute and exclusive.”

DThird phase

In the early and mid-twentieth century:

“In general, the judges have taken the view that when amatter is proceeding of the House, beginning andterminating within its own walls, it is obviously outside theEjurisdiction of the courts, unless criminal acts are involved.Equally clearly, if proceeding of the House results in actionaffecting the rights of persons exercisable outside the House, theperson who published the proceedings or the servant who executedthe order (for example) will be within the jurisdiction of the courts,Fwho may inquire whether the act complained of is duly coveredby the order, and whether the privilege claimed by the Housedoes, as pleaded, justify the act of the person who executed theorder.”

(emphasis supplied)

GIn the later twentieth century, the House of Commons came to asignificant conclusion about the limits of the phrase and the protectionafforded to proceedings in Parliament.

28. The privileges of the British House of Commons at thecommencement of the Constitution as embodied in clause (3) of ArticleH194 as it then stood has significant consequences. First, the nature and

extent of the privileges enjoyed by the members was to be decided bythe courts and not by the legislature, following the English principle thatthe courts have the power to determine whether the House possessed aparticular privilege. Second, the courts had the power to determinewhether any of the privileges of the British House of Commons thatexisted at the date of the commencement of the Constitution, had becomeinconsistent with the provisions of the Constitution.

29. As mentioned above, since the Parliament is yet to enact alaw on the subject of parliamentary privileges, according to Article 194(3)of the Constitution, the MLAs shall possess privileges that the membersof the House of Commons possessed at the time of enactment of theConstitution. It is thus imperative that we refer to judgments of the UnitedKingdom on whether criminal offences committed within the precinctsof the House of Commons are covered under ‘parliamentary privileges’,receiving immunity from prosecution.

30. In R vs Eliot, Holles and Valentine[27], Sir John Eliot and hisfellows in the House of Commons protested against the Armenianmovement in the English Church in the House. During the course of theprotest, three members of the House used force to hold the Speakerdown, preventing him from adjourning the House. They were chargedfor seditious speech and assault. The court of King’s Bench rejected theargument of the members that only the House had the exclusive jurisdictionto examine their conduct, and imposed fined and sentenced them toimprisonment. The House of Lords reversed the judgment of the King’sBench on the writ of error. One of the errors specified was that thecharge of seditious speech and assault on the Speaker should not havebeen disposed of by the same judgment. It was observed that while theformer was within the exclusive jurisdiction of the House, the latter could‘perhaps’ be tried by the courts. It was not expressly and categoricallystated that the assault inside the House could only be tried by the House.

31. In Bradlaugh vs Gossett,[28] an elected member of the Houseof Commons prevented the Speaker from administering oath.Subsequently, the Sergeant-at-Arms exerted physical force to removethe member from the precincts of the House. The elected memberinitiated action against the Sergeant and the same was dismissed. Justice

27 (1629) 3 St Tr 292-336.

28 [1884] EWHC 1 (QB).

AStephen in his concurring judgment observed that the House –similar toa private person – has an exercisable right to use force to prevent atrespasser from entering the House, and authorise others to carry out itsorder. In that context he observed:

“The only force which comes in question in this case is, suchBforce as any private man might employ to prevent trespass onhis own land. I know of no authority for the proposition thatan ordinary crime committed in the House of Commonswould be withdrawn from the ordinary course of criminaljustice”.

(emphasis supplied)

Justice Stephen sought to differentiate ‘ordinary crimes’ from‘crimes’. By the former, he referred to criminal offences that arecommitted within the precincts of the House, but bear no nexus to theeffective participation in essential parliamentary functions.

D32. In R vs Chaytor and others[29], the UK Supreme Court wasdealing with four accused persons who were charged with falseaccounting in relation to parliamentary expenses and had claimedimmunity from legal proceedings as it infringed their parliamentaryprivilege. Against them, disciplinary proceedings were initiated by theEHouse. Article 9 of the Bill of Rights 1689 provides that the freedom ofspeech and debates or proceedings in the Parliament must not bequestioned by any court or place outside Parliament. The question beforethe Court was what constituted “proceedings in Parliament”. Lord Phillipsobserved that:

F“83. The House does not assert an exclusive jurisdiction todeal with criminal conduct, even where this relates to orinterferes with proceedings in committee or in the House.Where it is considered appropriate the police will be invitedto intervene with view to prosecution in the courts.Furthermore, criminal proceedings are unlikely to be possibleGwithout the cooperation of Parliament. Before prosecution cantake place it is necessary to investigate the facts and obtainevidence.”

(emphasis supplied)

H29 [2010] UKSC 52 .

The Law Lord further held that the submission of claims isincidental to the administration of the parliament and not proceedingsof the parliament:

“90. Where the House becomes aware of the possibility thatcriminal offences may have been committed by Member inrelation to the administration of the business of Parliament incircumstances that fall outside the absolute privilege conferredby article 9, the considerations of policy to which I have referredat para 61 above require that the House should be able to referthe matter to the police for consideration of criminal proceedings,or to cooperate with the police in an inquiry into the relevant facts.That is what the House has done in relation to the proceedingsbrought against the three defendants.”

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

“118. That remains the position to this day. I have therefore nodoubt that, if the offences with which the appellants are chargedare to be regarded as “ordinary crimes”, then – even assumingthat they are alleged to have been committed entirely within theprecincts of the House – the appellants can be prosecuted in theCrown Court. The only question, therefore, is whether thereis any aspect of the offences which takes them out of thecategory of “ordinary crime” and into the narrower categoryof conduct in respect of which the House would claim aprivilege of exclusive cognizance.”

(emphasis supplied)

From the above cases it is evident that person committing acriminal offence within the precincts of the House does not hold anabsolute privilege. Instead, he would possess qualified privilege, andwould receive the immunity only if the action bears nexus to theeffective participation of the member in the House.

C.2.2 Position in India

33. The immunity available to the MPs under Article 105(2) ofthe Constitution from liability to “any proceedings in any court in respectof anything said or any vote given by him in Parliament” (similar toArticle 194(2) of the Constitution in case of MLAs) became the subject

Amatter of the decision of the Constitution Bench in P. V. NarasimhaRao (supra). The judgment of the Constitution Bench, which consistedof Justice SC Agrawal, Justice GN Ray, Justice AS Anand, Justice SPBharucha and Justice S Rajendra Babu, comprised of three opinions.The first opinion was by Justice SC Agrawal (on behalf of himself andDr Justice AS Anand), the second by Justice SP Bharucha (on behalf ofBhimself and Justice S Rajendra Babu) and the third, by Justice GN Ray.

34. In understanding the judgment of the Constitution Bench, itbecomes necessary at the outset to dwell on the decision of Justice GNRay. In the course of his judgment, Justice GN Ray agreed with thereasoning of Justice SC Agrawal thatC

(i)An MP is public servant under Section 2(c) of thePrevention of Corruption Act 1988; and

(ii)Since there is no authority to grant sanction for theprosecution of an MP under Section 19(1) of the PreventionDof Corruption Act 1988[30], the Court can take cognizance ofthe offences mentioned in Section 19(1) in the absence ofsanction. However, before filing charge sheet in respectof an offence punishable under Sections 7, 10, 11, 12 and15 against an MP in criminal court, the prosecuting agencymust obtain the sanction of the Chairman of the Rajya SabhaEor the Speaker of the Lok Sabha as the case may be.

35. Therefore, on the first aspect, while understanding the contextand text of the decision, it is important to bear in mind that Section 19(1)of the PC Act specifically mandates sanction for prosecution of publicservant, description which is fulfilled by an MP. However, there beingFno authority competent to grant sanction for the prosecution of Memberof Parliament, Justice SC Agrawal, speaking for himself and Dr JusticeAS Anand, held that:

“3. Since there is no authority competent to remove Member ofParliament and to grant sanction for his prosecution under SectionG19(1) of the Prevention of Corruption Act, 1988, the court cantake cognizance of the offences mentioned in Section 19(1) in theabsence of sanction but till provision is made by Parliament in thatregard by suitable amendment in the law, the prosecuting agency,before filing charge-sheet in respect of an offence punishable

under Sections 7, 10, 11, 13 and 15 of the 1988 Act against aMember of Parliament in criminal court, shall obtain thepermission of the Chairman of the Rajya Sabha/Speaker of theLok Sabha, as the case may be.”

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

36. However, it is necessary to appreciate the factual context ofthe case before dealing with the interpretation of Article 105(3) of theIndian Constitution. On 26 July 1993, Motion of No Confidence wasmoved in the Lok Sabha against the minority government of Shri P VNarasimha Rao. The support of fourteen members was needed to defeatthe No Confidence Motion. The Motion was sought on 28 July 1993.251 members voted in support, while 265 voted against the Motion. Itwas alleged that certain MPs agreed to and did receive bribes fromcertain other MPs. prosecution was launched against the bribe giversand the bribe takers and cognizance was taken by the Special Judge,Delhi.37. Before the Constitution Bench, question was raised as towhether the legal proceedings against the said MPs would be protectedunder the privileges and immunities granted under Article 105(3) of theConstitution “in respect of anything said or any vote given” by an MP.On the interpretation of Article 105(3), the judgment of Justice SPBharucha, speaking for himself and Justice Rajendra Babu, receivedthe concurrence of Justice GN Ray. The charge against the bribe givers,who were MPs, was in regard to the commission of offences punishableunder the PC Act or the abetment of those offences. Justice SP Bharuchain the course of his judgment held that Article 105(2) protects an MPagainst proceedings in court “that relate to, or concern, or have aconnection or nexus with anything said or vote given, by him inParliament”. The judgment of the majority on this aspect held:

“136. It is difficult to agree with the learned Attorney Generalthat though the words “in respect of” must receive broadmeaning, the protection under Article 105(2) is limited to courtproceedings that impugn the speech that is given or the vote thatis cast or arises thereout or that the object of the protection wouldbe fully satisfied thereby. The object of the protection is to enableMembers to speak their mind in Parliament and vote in the sameway, freed of the fear of being made answerable on that accountin court of law. It is not enough that Members should be protected

Aagainst civil action and criminal proceedings, the cause of actionof which is their speech or their vote. To enable Members toparticipate fearlessly in parliamentary debates, Membersneed the wider protection of immunity against all civil andcriminal proceedings that bear nexus to their speech orvote. It is for that reason that Member is not “liable to anyBproceedings in any court in respect of anything said or any votegiven by him”. Article 105(2) does not say, which it would have ifthe learned Attorney General were right, that Member is notliable for what he has said or how he has voted. While imputingno such motive to the present prosecution, it is not difficult toCenvisage Member who has made speech or cast vote that isnot to the liking of the powers that be being troubled by aprosecution alleging that he had been party to an agreement andconspiracy to achieve certain result in Parliament and had beenpaid bribe.”

(emphasis supplied)

38. Justice SC Agrawal and Dr Justice AS Anand reached acontrary conclusion on the subject:

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

1. Member of Parliament does not enjoy immunity under Article105(2) or under Article 105(3) of the Constitution from beingprosecuted before criminal court for an offence involving offeror acceptance of bribe for the purpose of speaking or by givinghis vote in Parliament or in any committees thereof.

2. Member of Parliament is public servant under Section 2(c)of the Prevention of Corruption Act, 1988.

3. Since there is no authority competent to remove Member ofParliament and to grant sanction for his prosecution under Section19(1) of the Prevention of Corruption Act, 1988, the court cantake cognizance of the offences mentioned in Section 19(1) in theabsence of sanction but till provision is made by Parliament in thatregard by suitable amendment in the law, the prosecuting agency,before filing charge-sheet in respect of an offence punishableunder Sections 7, 10, 11, 13 and 15 of the 1988 Act against

Member of Parliament in criminal court, shall obtain thepermission of the Chairman of the Rajya Sabha/Speaker of theLok Sabha, as the case may be.”

39. The view of Justice SC Agrawal and Dr Justice AS Anand onthe construction of Article 105 (2) and Article 105(3) was however theminority view since Justice GN Ray had concurred with the view ofJustice SP Bharucha and Justice Rajendra Babu on this aspect. Analyzingthe decision of the majority led by the judgment of Justice SP Bharucha,the stand out feature is this: the charge against the alleged bribe takerswas that they were party to criminal conspiracy in pursuance of whichthey had agreed to accept bribes to defeat the No Confidence Motionon the floor of the House. In pursuance of the conspiracy, it was allegedthat the bribe-givers had passed on bribes to the alleged bribe takers. Itwas in this context that the judgment noted:

“134…The nexus between the alleged conspiracy and bribe andthe no-confidence motion is explicit. The charge is that the allegedbribe-takers received the bribes to secure the defeat of the no-confidence motion.”

40. Thus, the Court observed that the connection between thealleged conspiracy, the bribe and the No Confidence Motion was explicit,and came to the conclusion that the alleged bribe takers received thebribe to manipulate their votes to secure the defeat of the No ConfidenceMotion. It was in this context that the Court observed that the expression“in respect of” under Article 105(2) must receive broad meaning andthe alleged conspiracy and bribe had nexus to and were in respect ofthose votes and that the proposed inquiry in the criminal proceedingswas in regard to their votes in the motion of no-confidence.

41. The next judgment which is of significance in the evolution ofthis body of law is the decision of the Constitution Bench in Raja RamPal vs Hon’ble Speaker, Lok Sabha[31]. The case has become knownin popular lore as the “cash for query case”, where sting operation ona private channel depicted certain MPs accepting money either directlyor through middlemen as consideration for raising questions in the House.Similarly, another channel carried telecast alleging improper conductof an MP in relation to the implementation of the MPLADS Scheme.Following an enquiry by the committees of the House, these MPs were

Aexpelled. This led to the institution of writ petitions challenging theexpulsion. In that context, the issues which were for determination were:

“1. Does this Court, within the constitutional scheme, have thejurisdiction to decide the content and scope of powers, privilegesand immunities of the legislatures and its Members?

2. If the first question is answered in the affirmative, can it befound that the powers and privileges of the legislatures in India, inparticular with reference to Article 105, include the power ofexpulsion of their Members?

3. In the event of such power of expulsion being found, does thisCCourt have the jurisdiction to interfere in the exercise of the saidpower or privilege conferred on Parliament and its Members orcommittees and, if so, is this jurisdiction circumscribed by certainlimits?”

Chief Justice Y K Sabharwal speaking for the majority (Justice CDK Thaker concurring) held that:

“62. In view of the above clear enunciation of law by ConstitutionBenches of this Court in case after case, there ought not be anydoubt left that whenever Parliament, or for that matter any StateLegislature, claims any power or privilege in terms of the provisionsEcontained in Article 105(3), or Article 194(3), as the case may be,it is the Court which has the authority and the jurisdictionto examine, on grievance being brought before it, to findout if the particular power or privilege that has been claimedor asserted by the legislature is one that was contemplatedFby the said constitutional provisions or, to put it simply, if itwas such power or privilege as can be said to have beenvested in the House of Commons of the Parliament of theUnited Kingdom as on the date of commencement of theConstitution of India so as to become available to the IndianLegislatures.”

(emphasis supplied)

42. The principle which emphatically emerges from this judgmentis that whenever claim of privilege or immunity is raised in the contextof Article 105(3) or Article 194 (3), the Court is entrusted with theauthority and the jurisdiction to determine whether the claim is sustainableHon the anvil of the constitutional provision. The Constitution Bench held

that neither Parliament nor the State legislatures in India can assert thepower of “self-composition or in other words the power to regulate theirown constitution in the manner claimed by the House of Commons or inthe UK”. The decision therefore emphasizes the doctrine of constitutionalsupremacy in India as distinct from parliamentary supremacy in the UK.

43. three judge Bench of this Court has made distinctionbetween legislative functions and non-legislative functions of the membersof the House for determination of the scope of the privileges. InLokayukta, Justice Ripusudan Dayal (Retired) (supra), thepetitioner initiated action against certain officers of the State LegislativeAssembly for indulging in corruption relating to construction work andinitiated criminal proceedings against the officials. In turn, the Speakerof the House issued letter to the petitioner alleging breach of privilege,against which the petitioner filed writ petition before this Court. Allowingthe petition, Chief Justice P. Sathasivam speaking for three-Judge Benchobserved that privileges are available only as far as they are essentialfor the members to carry out their legislative functions.He held that thescope of the privileges must be determined based on the need for them.The Court observed:

“51. The scope of the privileges enjoyed depends uponthe need for privileges i.e. why they have been providedfor. The basic premise for the privileges enjoyed by theMembers is to allow them to perform their functions asMembers and no hindrance is caused to the functioning ofthe House. The Committee of Privileges of the Tenth Lok Sabha,noted the main arguments that have been advanced in favour ofcodification, some of which are as follows:..[…]

52. It is clear that the basic concept is that the privilegesare those rights without which the House cannot performits legislative functions. They do not exempt the Membersfrom their obligations under any statute which continues toapply to them like any other law applicable to ordinarycitizens. Thus, enquiry or investigation into an allegation ofcorruption against some officers of the Legislative Assemblycannot be said to interfere with the legislative functions of theAssembly. No one enjoys any privilege against criminalprosecution.”

(emphasis supplied)

44. Having detailed the position of law above, the next sectionwould discuss the validity of the argument invoking the immunities andprivileges under Article 194 as hypothesis for barring legal proceedingsfor acts of destruction of public property in the present case.

C.3 Privilege to commit acts of public destruction – anBincongruous proposition

45. The essence of this case is whether the application made bythe Public Prosecutor under Section 321 of the CrPC falls within theinterpretative understanding of Section 321 of the CrPC as elucidatedby the decisions of this Court. The CJM held that the application couldCnot be allowed and the High Court in the exercise of its revisionaljurisdiction affirmed the finding of the CJM. In approaching this task inthe exercise of its jurisdiction under Article 136 of the Constitution, theCourt must do well to bear in mind the caution which has been expressedin the decision of the majority in the Constitution Bench decision inSheonandan Paswan (supra). The Court noted that it had been “theDdeclared policy of this Court not to embark upon roving enquiry intothe facts and evidence of case like this”, particularly because anyobservation on merits or facts and evidence will cause serious prejudiceto parties at trial. Hence, in approaching the submissions of the counsel,it is necessary to begin with caution and caveat that in evaluating themEthe Court must not transcend the limits of its jurisdiction under Article136. Both the CJM and the High Court have come to the conclusion thatthe application for withdrawal made by the public prosecutor under Section321 should not be allowed. The issue is whether these findings sufferfrom palpable error or perversity which would warrant interferenceby this Court.F

46. We must at the outset clear two grounds raised by theappellants. First, the High Court in the course of its decision has citedthe observations in the minority opinion of Chief Justice Bhagwati inSheonandan Paswan (supra) treating them to be the view of the court.Undoubtedly, the judgment of the learned Chief Justice expresses aGminority opinion. The majority view is reflected in the judgement of JusticeV Khalid (speaking for himself and Justice S Natarajan) and in theconcurring opinion of Justice S Venkataramiah. However, before weaccede to the submission of the appellants to displace the judgment ofthe High Court on this count we must advert to whether it is consistentHwith the decision of the majority in Sheonandan Paswan (supra). The

conclusion of the High Court to affirm the decision of the CJM must,therefore, be analysed from prism of the law as it has been enunciatedconsistently in several decisions before and after the judgment of theConstitution Bench and of course, in the decision in Sheonandan Paswan(supra). The second aspect which must be borne in mind is that theHigh Court has accepted the fact that no mala fides can be attributed tothe application for withdrawal. We will consider whether this is acircumstance which in and of itself should have resulted in allowing theapplication for the grant of permission for withdrawal of the prosecutionunder Section 321. The issue on this aspect of the case is whether afinding that there is no absence of good faith must inexorably result inallowing an application under Section 321 bereft of the other considerationswhich must underlie such decision.47. Shorn of detail, the allegations against the accused need to berecapitulated. At the material time in March 2015, the respondent-accusedwere elected members of the State Legislative Assembly belonging tothe party in opposition. On 13 March 2015, when the Finance Ministerwas presenting the annual budget, the MLAs in question are alleged tohave disrupted the presentation of the budget. To them is attributed theacts of climbing on to the dais of the Speaker and damaging furnitureand articles including the Speaker’s chair, computer, mic, emergencylamp and an electric panel amounting to loss of Rs.2,20,093. Followingthis incident, Crime No. 236 of 2015 was registered at the behest of theLegislative Secretary of the State Assembly for offences punishableunder Sections 427[32] and 447[33] read with Section 34 of the IPC andSection 3(1) of the Prevention of Damage to Public Property Act 1984.A final report under Section 173 of the CrPC was submitted by thepolice and cognizance was taken by the CJM.

48. The Prevention of Damage to Public Property Act 1984 wasenacted by Parliament “to provide for prevention of damage to publicproperty and for matters connected therewith”. Section 2(b) defines theexpression ‘public property’ thus:

32 “427. Mischief causing damage to the amount of fifty rupees.—Whoever commitsmischief and thereby causes loss or damage to the amount of fifty rupees or upwards,shall be punished with imprisonment of either description for term which may extendto two years, or with fine, or with both”.

33 “447. Punishment for criminal trespass.—Whoever commits criminal trespass shallbe punished with imprisonment of either description for term which may extend tothree months, or with fine which may extend to five hundred rupees, or with both”.

ABC

A“(b) “public property” means any property, whether immovableor movable (including any machinery) which is owned by, or inthe possession of, or under the control of—

(i) the Central Government; or

(ii) any State Government; or

B(iii) any local authority; or (iv) any corporation established by, orunder, Central, Provincial or State Act; or

(v) any company as defined in section 617 of the Companies Act,1956 (1 of 1956); or

(vi) any institution, concern or undertaking which the CentralCGovernment may, by notification in the Official Gazette, specifyin this behalf:

Provided that the Central Government shall not specify anyinstitution, concern or undertaking under this sub-clause unlesssuch institution, concern or undertaking is financed wholly orDsubstantially by funds provided directly or indirectly by the CentralGovernment or by one or more State Governments, or partly bythe Central Government and partly by one or more StateGovernments.”

The Statement of Objects and Reasons contains the rationale forEthe Ordinance which was promulgated by the President on the subject,which was enacted as statute:

“With view to curb acts of vandalism and damage to publicproperty including destruction and damage caused during riotsand public commotion, need was felt to strengthen the law toFenable the authorities to deal effectively with cases of damage topublic property. Accordingly, the President promulgated on 28[th]January, 1984, the Prevention of Damage to Public PropertyOrdinance, 1984 (No. 3 of 1984).”

Section 3 which has been invoked in the present case is in theGfollowing terms:

“3. Mischief causing damage to public property.—

(1) Whoever commits mischief by doing any act in respect of anypublic property, other than public property of the nature referredto in sub-section (2), shall be punished with imprisonment for aHterm which may extend to five years and with fine.

(2) Whoever commits mischief by doing any act in respect of anypublic property being—

(a) any building, installation or other property used in connectionwith the production, distribution or supply of water, light, power orenergy;

(b) any oil installations;

(c) any sewage works;

(d) any mine or factory;

(e) any means of public transportation or of tele-communications,or any building, installation or other property used in connectiontherewith, shall be punished with rigorous imprisonment for termwhich shall not be less than six months, but which may extend tofive years and with fine:

Provided that the court may, for reasons to be recorded in itsjudgment, award sentence of imprisonment for term of lessthan six months.”

The expression “mischief” is defined in Section 2(a) to have themeaning which is ascribed to it in Section 425[34] of the IPC:

34 “425. Mischief.—Whoever with intent to cause, or knowing that he is likely tocause, wrongful loss or damage to the public or to any person, causes the destruction ofany property, or any such change in any property or in the situation thereof as destroysor diminishes its value or utility, or affects it injuriously, commits “mischief””.

Explanation 1.—It is not essential to the offence of mischief that the offender shouldintend to cause loss or damage to the owner of the property injured or destroyed. It issufficient if he intends to cause, or knows that he is likely to cause, wrongful loss ordamage to any person by injuring any property, whether it belongs to that person ornot.

Explanation 2.—Mischief may be committed by an act affecting property belonging tothe person who commits the act, or to that person and others jointly.

(a) voluntarily burns valuable security belonging to Z intending to cause wrongfulloss to Z. has committed mischief.

(b) introduces water in to an ice-house belonging to Z and thus causes the ice to melt,intending wrongful loss to Z. has committed mischief.

(c) voluntarily throws into river ring belonging to Z, with the intention of therebycausing wrongful loss to Z. has committed mischief.

(d) A, knowing that his effects are about to be taken in execution in order to satisfy adebt due from him to Z, destroys those effects, with the intention of thereby preventingZ from obtaining satisfaction of the debt, and of thus causing damage to Z. hascommitted mischief.

A“(a) “mischief” shall have the same meaning as in section 425 ofthe Indian Penal Code (45 of 1860);”

The ingredients of Section 425 are:

(i)causing destruction of any property (a) with an intent tocause; or (b) knowing of the likelihood to cause wrongfulBloss or damage to the public or to any person; or

(ii)any change in the property or its situation which destroysor diminishes its value or utility or affects it injuriously.

49. The Prevention of Damage to Public Property Act 1984 seeksCto penalise inter alia the commission of mischief (as defined in Section425 of the IPC) by doing any act in respect of public property. Sub-Section (1) of Section 3 makes the offence punishable with imprisonmentfor term which may extend to five years and with fine. Sub-Section(2) covers certain specific installations in the case of which an act ofmischief carries minimum term of imprisonment of six months butDwhich may extend to five years and fine. Section 5[35] embodies specialprovision for bail. Section 6[36] makes it clear that the law is in addition toand not in derogation of any other law for the time being in force.

50. The gravity of the offence involving destruction of publicproperty was considered by this Court in Re: Destruction of PublicEand Private Properties[37], where it took suo motu cognizance to remedythe large-scale destruction of public and private properties in agitations,

(e) having insured ship, voluntarily causes the same to be cast away, with theintention of causing damage to the underwriters. has committed mischief.

(f) causes ship to be cast away, intending thereby to cause damage to Z who has lentFmoney on bottomry on the ship. has committed mischief.(g) A, having joint property with Z in horse, shoots the horse, intending thereby tocause wrongful loss to Z. has committed mischief.

(h) causes cattle to enter upon field belonging to Z, intending to cause and knowingthat he is likely to cause damage to Z’s crop. has committed mischief.

35 “5. Special provisions regarding bail.—No person accused or convicted of an offencepunishable under section 3 or section 4 shall, if in custody, be released on bail or on hisGown bond unless the prosecution has been given an opportunity to oppose theapplication for such release.”

36 “6. Saving.—The provisions of this Act shall be in addition to, and not in derogationof, the provisions of any other law for the time being in force, and nothing contained inthis Act shall exempt any person from any proceeding (whether by way of investigationor otherwise) which might apart from this Act, be instituted or taken against him.”H37 2009 5 SCC 212.

bandhs, hartals and other forms of ‘protest’. The Court formed twocommittees chaired by Justice KT Thomas (former judge of this Court)and Mr Fali S Nariman, Senior counsel and adopted the recommendationsof both the committees in laying down specific guidelines for investigationand prosecution of offences involving destruction of public property,assessment of damages and determination of compensation in casesinvolving destruction of property. In the more recent decisionKodungallur Film Society and Another vs Union of India[38], thisCourt noted that the guidelines in Re: Destruction of Public andPrivate Properties (supra) have been considered by the Union ofIndia and draft Bill for initiating legislative changes along the lines ofthe recommendations is under consideration. The Court also issuedguidelines on preventive measures to curb mob violence, determiningcompensation and fixing liability for offences, and in regard to theresponsibility of police officials for investigation of such crimes.

51. Based on the above, it is evident that there has been growingrecognition and consensus both in this Court and Parliament that acts ofdestruction of public and private property in the name of protests shouldnot be tolerated. Incidentally, the Kerala Legislative Assembly alsoenacted the Kerala Prevention of Damage to Private Property andPayment of Compensation Act 2019 (Act No. 09 of 2019) to complementthe central legislation, Prevention of Damage to Public Property Act1984, with special focus on private property.

52. The persons who have been named as the accused in the FIRin the present case held responsible elected office as MLAs in theLegislative Assembly. In the same manner as any other citizen, they aresubject to the boundaries of lawful behaviour set by criminal law. Nomember of an elected legislature can claim either privilege or animmunity to stand above the sanctions of the criminal law, which appliesequally to all citizens. The purpose and object of the Act of 1984 was tocurb acts of vandalism and damage to public property including(but notlimited to) destruction and damage caused during riots and public protests.

53. member of the legislature, the opposition included, has aright to protest on the floor of the legislature. The right to do so is implicitin Article 105(1) in its application to Parliament and Article 194(1) in itsapplication to the State Legislatures. The first clauses of both theseArticles contain mandate that “there shall be freedom of speech” in38 2018 10 SCC 713.

AParliament and in the legislature of every State. Nonetheless, the freedomof speech which is protected by the first clause is subject to the provisionsof the Constitution and to the rules and standing orders regulating theprocedure of the legislature. The second clause provides immunity againstliability “to any proceedings in any court” in respect of “anything said orany vote given” in the legislature or any committee. Moreover, no personBis to be liable in respect of the publication by or under the authority ofParliament or of the House of the State Legislature of any report, paper,votes or proceedings. We have earlier traced the history of Clause (3)of Article 194 as it originally stood under which the powers, privilegesand immunities of the members of Parliament and of the StateCLegislatures were those which were recognised for Members of theHouse of Commons immediately before the enforcement of theConstitution. This provision, as we have seen, was sought to be amendedby the Forty Second Amendment and was ultimately amended by theForty Fourth Amendment, from which it derives its present form. Itrecognises the powers, privilege and immunities as they stood immediatelyDbefore the enforcement of Section 26 of the Forty Fourth Amendment.

54. Tracing the history of the privileges and immunities enjoyedby members of the House of Commons, Erskine May makes doctrinaldivision of the position in the UK into various phases. However, thestand out feature which emerges from the privileges and immunities ofEthe members of the House of Commons is the absence of an immunityfrom the application of criminal law. This jurisprudential developmentbegan in Sir John Elliot (supra), was developed by Justice Stephen inBradlaugh (supra), and cemented by the UK Supreme Court in Chaytor(supra).F55. There is valid rationale for this position. The purpose of

F55. There is valid rationale for this position. The purpose ofbestowing privileges and immunities to elected members of the legislatureis to enable them to perform their functions without hindrance, fear orfavour. This has been emphasized by the three judge Bench inLokayukta, Justice Ripusudan Dayal (supra). The oath of officewhich members of Parliament and of the State Legislature have toGsubscribe requires them to (i) bear true faith and allegiance to theConstitution of India as by law established; (ii) uphold the sovereigntyand integrity of India; and (iii) faithfully discharge the duty upon whichthey are about to enter. It is to create an environment in which they canperform their functions and discharge their duties freely that theHConstitution recognizes privileges and immunities. These privileges bear functional relationship to the discharge of the functions of legislator.They are not mark of status which makes legislators stand on an unequalpedestal. It is of significance that though Article 19(1)(a) expresslyrecognises the right to freedom of speech and expression as inhering inevery citizen, both Articles 105(1) and 194(1) emphasise that “thereshall be freedom of speech” in Parliament and in the Legislature of aState. In essence, Article 19(1)(a) recognizes an individual right to thefreedom of speech and expression as vested in all citizens. Articles 105(1)and 194(1) speak about the freedom of speech in the Parliament andState Legislatures and in that context must necessarily encompass thecreation of an environment in which free speech can be exercised withintheir precincts. The recognition that there shall be freedom of speech inParliament and the State Legislatures underlines the need to ensure theexistence of conditions in which elected representatives can performtheir duties and functions effectively. Those duties and functions are asmuch matter of duty and trust as they are of right inhering in therepresentatives who are chosen by the people. We miss the wood forthe trees if we focus on rights without the corresponding duties castupon elected public representatives.

56. Privileges and immunities are not gateways to claim exemptionsfrom the general law of the land, particularly as in this case, the criminallaw which governs the action of every citizen. To claim an exemptionfrom the application of criminal law would be to betray the trust which isimpressed on the character of elected representatives as the makersand enactors of the law. The entire foundation upon which the applicationfor withdrawal under Section 321 was moved by the Public Prosecutoris based on fundamental misconception of the constitutional provisionscontained in Article 194. The Public Prosecutor seems to have beenimpressed by the existence of privileges and immunities which wouldstand in the way of the prosecution. Such an understanding betrays theconstitutional provision and proceeds on misconception that electedmembers of the legislature stand above the general application of criminallaw.

57. The reliance placed by the appellants on P.V Narasimha Rao(supra) to argue that the action of the respondent-accused inside theHouse was form of ‘protest’ which bears close nexus to the freedomof speech, and thus is covered by Article 194(2) is unsatisfactory. Themajority in P.V Narasimha Rao (supra) dealt with the interpretation ofthe phrase ‘in respect of’ and gave it wide import. At the same time,

Athe majority observed that there must be nexus between the act orincident (which in that case was the act of bribery in the context of thevotes cast on motion of no-confidence) and the freedom of speech orto vote. It was emphasised that the bribe was given to manipulate thevotes of the MPs and thus, it bore close nexus to the freedom protectedunder Article 105(2). The case however, did not deal with the ambit ofBthe privilege of ‘freedom of speech’ provided to the members of theHouse. It was in Lokayukta, Justice Ripusudan Dayal (Retired)(supra) that three judge Bench of this Court laid down the law for theidentification of the content of the privileges. It was held that the membersshall only possess such privileges that are essential for undertaking theirClegislative functions. An alleged act of destruction of public propertywithin the House by the members to lodge their protest against thepresentation of the budget cannot be regarded as essential for exercisingtheir legislative functions. The actions of the members have troddenpast the line of constitutional means, and is thus not covered by theprivileges guaranteed under the Constitution.D58. The test which has been laid down in the decisions of thisCourt commencing with Ram Naresh Pandey (supra) in 1957, spanningdecisions over the last 65 years is consistent. The true function of thecourt when an application under Section 321 is filed is to ensure that theexecutive function of the public prosecutor has not been improperlyEexercised or that it is not an attempt to interfere with the normal courseof justice for illegitimate reasons or purposes. The court will grant itsconsent if it is satisfied that it sub-serves the administration of justiceand the purpose of seeking it is not extraneous to the vindication of thelaw. It is the broad ends of public justice that must guide the decision.FThe public prosecutor is duty bound to act independently and ensure thatthey have applied their minds to the essential purpose which governs theexercise of the powers. Whether the public prosecutor has acted ingood faith is not in itself dispositive of the issue as to whether consentshould be given. This is clear from the judgment in Sheonandan Paswan

(supra). In paragraph 73 of the judgment, Justice V Khalid hasGspecifically observed that the court must scrutinize “whether theapplication is made in good faith, in the interest of public policy andjustice and not to thwart or stifle the process of law”. Good faith is oneand not the only consideration. The court must also scrutinize whetheran application suffers from such improprieties or illegalities as to causeHmanifest injustice if consent is given.

59. On the touchstone of these principles, there can be no mannerof doubt that the CJM was justified in declining consent for the withdrawalof the prosecution under Section 321. The acts complained of which arealleged to constitute offences punishable under Sections 425, 427 and447 of the IPC and under Section 3(1) of the Prevention of Damage ofPublic Property Act 1984 are stated to have been committed in the presentcase on the floor of the State Legislature. Committing acts of destructionof public property cannot be equated with either the freedom of speechin the legislature or with forms of protest legitimately available to themembers of the opposition. To allow the prosecution to be withdrawn inthe face of these allegations, in respect of which upon investigation afinal report has been submitted under Section 173 of the CrPC andcognizance has been taken, would amount to an interference with thenormal course of justice for illegitimate reasons. Such an action is clearlyextraneous to the vindication of the law to which all organs of theexecutive are bound. Hence, the mere finding of the High Court thatthere is no absence of good faith would not result in allowing the applicationas necessary consequence, by ignoring the cause of public justice andthe need to observe probity in public life. The members of the StateLegislature have in their character as elected representatives publictrust impressed upon the discharge of their duties. Allowing theprosecution to be withdrawn would only result in singular result, whichis that the elected representatives are exempt from the mandate ofcriminal law. This cannot be countenanced as being in aid of the broadends of public justice.

60. We shall now deal with two other arguments raised by theappellants and the respondent-accused : First, whether the sanction ofthe Speaker of the House is required for prosecuting MLAs foroccurrences within the precincts of the Assembly and second, whetherthe members are protected by privilege under Article 194(2) which isavailable in case of publication of proceedings that take place inside theHouse.

C.4 Sanction of Speaker

61. The Speaker of the legislative assembly is appointed underArticle 178 of the Constitution. The Speaker is the presiding officer ofthe House, and has complete autonomy to make decisions on thefunctioning of the house and maintenance of decorum of the House.Chapter IV of the Rules of Procedure and Conduct of Business in the

AKerala Legislative Assembly[39] states that the Speaker presides over theHouse, decides on the sittings and adjournments of the House, and makesarrangements for carrying out the smooth conduct of the business of theHouse.

62. The appellants have relied on P.V. Narasimha Rao (supra)Bto argue that the prior sanction of the Speaker, as the presiding officer ofthe House, is necessary to initiate prosecution against the members ofthe House for the commission of an offence inside the House. We areunable to accept this submission. The decision of this Court in P.V.Narasimha Rao (supra) and the factual background within which itarose has been discussed earlier. In that case MPs were accused ofCcommitting offences under the PC Act. Section 19 of the PC Actspecifically provides that cognisance of offences committed by publicservant under Sections 7, 10, 11, 13 and 15 can only be taken with theprior sanction of the authority competent to remove public servantfrom office[40]. In light of this section, the majority in P.V. NarasimhaDRao (supra) (Justice S Agarwal speaking for himself and Dr JusticeA S Anand with Justice N Ray concurring on this point) held thatsince MPs are public servants, prior sanction is required to initiate aprosecution against them. The Court also held that since there is noauthority competent to remove an MP, the power to grant sanction toprosecute an MP would reside in the Speaker of the House. TheEobservations of the Constitution Bench regarding prior sanction weremade with specific reference to Section 19 of the PC Act and cannot beconstrued to imply broader proposition of law that sanction is pre-requisite for initiating prosecution against the members of the House,in this case of the Kerala Legislative Assembly for any offences

Fcommitted within the House. In fact, this contention was raised beforethe Constitution Bench in P.V. Narasimha Rao (supra) but was rejected.It was argued, relying on the decision in K. Veeraswami vs Union of

39 “Kerala Assembly Rules”.

40 “19. (1) No court shall take cognizance of an offence punishable under sections 7, 10,G11, 13 and 15 alleged to have been committed by public servant, except with theprevious sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013(1 of 2014)]— (a) in the case of person who is employed in connection with theaffairs of the Union and is not removable from his office save by or with the sanctionof the Central Government, of that Government; (b) in the case of person who isemployed in connection with the affairs of State and is not removable from his officesave by or with the sanction of the State Government, of that Government; (c) in theHcase of any other person, of the authority competent to remove him from his office.”

India,[41] that the no criminal proceedings can be launched against anMLA without receiving the sanction of the Speaker. In Veeraswami(supra), the appellant was the Chief Justice of the Madras High Courtwhen he was charged with criminal misconduct under the Prevention ofCorruption Act, 1947. It was laid down that criminal case cannot beregistered against judge of the High Court or the Supreme Court unlessthe Chief Justice of India is consulted. Justice Shetty (for himself andJustice Venkatachalliah) observed thus:“60….Secondly, the Chief Justice being the head of the judiciaryis primarily concerned with the integrity and impartiality of thejudiciary. Hence it is necessary that the Chief Justice of India isnot kept out of the picture of any criminal case contemplatedagainst Judge. He would be in better position to give his opinionin the case and consultation with the Chief Justice of India wouldbe of immense assistance to the government in coming to theright conclusion. We therefore, direct that no criminal caseshall be registered under Section 154, CrPC against Judgeof the High Court, Chief Justice of High Court or Judge ofthe Supreme Court unless the Chief Justice of India isconsulted in the matter. Due regard must be given by thegovernment to the opinion expressed by the Chief Justice. If theChief Justice is of opinion that it is not fit case forproceeding under the Act, the case shall not be registered.If the Chief Justice of India himself is the person against whomthe allegations of criminal misconduct are received the governmentshall consult any other Judge or Judges of the Supreme Court.There shall be similar consultation at the stage of examiningthe question of granting sanction for prosecution and it shallbe necessary and appropriate that the question of sanctionbe guided by and in accordance with the advice of the ChiefJustice of India. Accordingly the directions shall go to thegovernment. These directions, in our opinion, would allay theapprehension of all concerned that the Act is likely to be misusedby the executive for collateral purpose.”

(emphasis supplied)

The Court in PV Narasimha Rao (supra) distinguished theinstance of criminal charge instituted against an MP from that instituted41 (1991) 3 SCC 655.

Aagainst member of the judiciary. It held that it is important that thesanction of the Chief Justice of India is required before the initiation of acomplaint against judge to safeguard the independence of the judiciary,and that the position of an MP is not akin to the position of judge:

“176. It is convenient now to notice submission made by MrBSibal based upon Veeraswami case [(1991) 3 SCC 655 : 1991SCC (Cri) 734 : (1991) 3 SCR 189] . He urged that just as thisCourt had there directed that no criminal prosecution should belaunched against Judge of High Court or the Supreme Courtwithout first consulting the Chief Justice of India, so we shoulddirect that no criminal prosecution should be launched against aCMember of Parliament without first consulting the Speaker. Asthe majority judgment makes clear, this direction wasconsidered necessary to secure the independence of thejudiciary and in the light of the “apprehension that theexecutive being the largest litigant is likely to abuse theDpower to prosecute the Judges”. Members of Parliamentdo not stand in comparable position. They do not have todecide day after day disputes between the citizen and theexecutive. They do not need the additional protection thatthe Judges require to perform their constitutional duty ofdecision-making without fear or favour.”E

(emphasis supplied)

63. It is clear from the above discussion that the decision of thisCourt in P.V. Narasimha Rao (supra) does not lend support to theargument of the appellants that the sanction of the Speaker ought tohave been obtained. The appellants have further relied on Section 197(1)Fof the CrPC in support of their submission for requiring prior sanctionof the Speaker for prosecuting MLAs/MPs for offences committed withinthe House. Section 197(1) of the CrPC states that cognizance cannot betaken for an offence allegedly committed by public servant, who isremovable with the sanction of the Government, unless the sanction ofGthe Government is received. The provision reads as under:

“197. Prosecution of Judges and public servants:

(1) When any person who is or was Judge or Magistrate or apublic servant not removable from his office save by or withthe sanction of the Government is accused of any offenceHalleged to have been committed by him while acting or purporting

to act in the discharge of his official duty, no Court shall takecognizance of such offence except with the previoussanction-…”

(emphasis supplied)

64. plain reading of Section 197 of the CrPC clarifies that itapplies only if the public servant can be removed from office by or withthe sanction of the government. However, MLAs cannot be removedby the sanction of the government, as they are elected representativesof the people of India. They can be removed from office, for instancewhen disqualified under the Xth Schedule of the Constitution for whichthe sanction of the government is not required. Further, sanction underSection 197 is only required before cognizance is taken by court, andnot for the initiation of the prosecution.

65. The appellants have relied on Satish Chandra vs Speaker,Lok Sabha[42]to urge that the powers of the Speaker to control andregulate the House encompasses the power of sanction for initiation ofproceedings against members of the Assembly. We find that the dictumin Satish Chandra (supra) also does not come to the aid of the appellants.In Satish Chandra (supra), petition was instituted before this Courtunder Article 32 of the Constitution seeking direction to the Speaker ofthe Lok Sabha and the Chairman of the Rajya Sabha to withhold thepayment of salary, perquisites and privileges of MPs disrupting the Houseand to try them under the PC Act if they continue to avail of them. Thereliefs sought included their disqualification from membership of theHouse and debarment from contesting future elections. The prayer wasessentially to direct the Speaker of the House on the manner of conductof the proceedings. It was in this context that the two judge bench of thiscourt consisting of Chief Justice P Sathasivam and Justice Ranjana PDesai dismissed the petition relying on Ramdas Athawale (5) vs Unionof India[43] where it was held:

“He (the speaker) is the interpreter of its rules and procedure,and is invested with the power to control and regulate the courseof debate and maintain order.”

In Ramdas Athawale (supra), the question for consideration waswhether the decision of the Speaker directing resumption of the sittingof the House can be subject to judicial review. Therefore, in both Ramdas

42 (2014) 2 SCC 178.

43 (2010) 4 SCC 1.

AAthawale (supra) and Satish Chandra (supra), the Court was facedwith the question of judicial review of the actions of the Speaker of theHouse. In both the cases the Court limited its power to review so as tonot interfere in the ordinary functioning and conduct of the House inpursuance of Article 122(2) which states that the Speaker’s power toregulate the proceedings and conduct of business is final and binding. ItBwould be stretch however, to argue that these observations of theCourt grant the Speaker carte blanche to decide if and when criminalproceedings should be initiated against MLAs. The State of Kerala, unlikethe State of Maharashtra has not amended the relevant provisions of theCrPC warranting the sanction of the Speaker for the initiation of criminalCproceedings against MLA’s. The Code of Criminal Procedure(Maharashtra Amendment) Act, 2015 was enacted amending Sections156 and 190 of the CrPC. The amended provisions state that no Magistratecan order investigation and take cognizance for an offence alleged tohave been committed by any person who is or was pubic servant,‘while acting or purporting to act in discharge of his official duties’ ,Dwithout the previous sanction of the sanctioning authority. Moreover,even in such case sanction is necessary when the act was while actingor purporting to act in the discharge of official duties. When no provisionswarranting the sanction of the Speaker-either specific to the offence(such as the PC Act) or specific to the class (such as the MaharashtraEAmendment Act, 2015) are enacted, the argument of the appellant standson fragile grounds. For the above mentioned reasons, the contention thatthe prosecution against the respondent-accused is vitiated for want ofsanction of the Speaker is rejected.

C.5 Claiming privilege and inadmissibility of videoFrecordings as evidence

66. During the course of his submissions, Mr Ranjit Kumar, learnedSenior counsel for the appellants, referred to video recording of theincident that occurred on 13 March 2015. The video was procured bythe investigating authorities from the Electronic Control Room of theGHouse. The video recording also finds mention in the withdrawal petitionfiled by the Public Prosecutor, where the Prosecutor states that the videofootage was obtained without the consent of the Speaker of the Houseand thus lacks certification under Section 65B of the Indian EvidenceAct 1872. In this regard, Mr Ranjit Kumar has made two distinctsubmissions, which require our consideration:H

(i)The incident occurred on the floor of the House, and is aA‘proceeding’ of the House. According to Article 194(2), nolegal proceedings can be initiated against any member inrespect of the publication, by or under the authority of theHouse, of any report, paper, votes or proceedings. Basedon this, the video which recorded the incident is publicationBof the proceedings of the House and no MLA can facelegal action for these proceedings; and

(ii)The video recording of the incident belongs to the Houseand copy of the video footage could not have been obtainedwithout the sanction of the Speaker, who is the custodianCof the House. In addition to this, the video recording alsolacks certification under Section 65B of the Indian EvidenceAct 1872. Without the video recording, there is insufficientevidence available with the prosecution to succeed in trialagainst the respondent- accused. It is urged that in light ofthis, withdrawal of prosecution of this case is warranted.D

67. We shall deal with each of these submissions in turn.

C.5.1 Immunity from publication of proceedings of the House

68. Article 194(1) of the Constitution provides that there shall befreedom of speech in the Legislature of every State. Clause 2 of Article194, specifically provides that no member of the State Legislature shallbe liable for any legal proceedings in respect of anything said or anyvote given by him in the Legislature or any committee thereof, and noperson shall be so liable in respect of the publication by or under theauthority of House of such Legislature of any report, paper, votes orproceedings. Mr Ranjit Kumar has sought to take recourse of the secondlimb of Article 194(2), to claim that legal proceedings are barred againstrespondent-accused for the incident, as it allegedly formed part of the‘proceedings’ of the House, which were published under the authorityof the House.

69. For the second limb of Article 194(2) to be applicable, thefollowing three elements must be present- first, there must be apublication; second, the publication must be by or under the authority ofthe House; and third, the publication must relate to report, paper, voteor proceedings.

A70. The first question to be addressed in this regard is the meaningof the phrase ‘publication’ under Article 194(2) of the Constitution. TheOxford Dictionary defines the term ‘publication’ as the “act of printing abook, magazine etc. and making it available to the public.” Thus, incommon parlance, publication refers to print media. At the time ofenactment of the Constitution, the members of the Constituent AssemblyBwould not have envisioned the possibility of broadcasting of theproceedings of the House through the aid of technology as it exists atpresent. The discussions in the Constituent Assembly leading up to theadoption of the Constitution and the debates were recorded in typedformat and published. In line with the Constituent Assembly (Legislative)CRules of Procedure and Conduct of Business, which were in force tillthe adoption of the Constitution, the Lok Sabha and Rajya Sabha alsoadopted Rules of Procedure and Conduct of Business. Rule 379 of theLok Sabha Rules records that the Secretary-General shall prepare fullreport of the proceedings of the House and publish it in such form andmanner as the Speaker directs. Similar rules have been adopted by variousDState Legislatures, including the Kerala Legislative Assembly whichadopted the Kerala Assembly Rules. Rule 306 of the Kerala AssemblyRules is pari materia to Rule 379 of the Lok Sabha Rules. Thus, whenthe Constitution was enacted, the phrase ‘publication’ was intended tomean the publication of proceedings in the printed format.

71. With the advent of technology, proceedings of Parliament andthe Legislative Assembly are broadcast for public viewership, with anaim to promote accessibility to debates in the legislative body.Correspondingly, the Union and State Governments enacted legislationand issued instructions to regulate the field of broadcasting of legislativeFproceedings. In 1977, the Parliamentary Proceedings (Protection ofPublication) Act, 1977[44] was enacted. Section 3 of the Act states that noperson shall be liable to any civil or criminal proceeding for substantiallytrue publication in newspaper of the proceedings in the House, unlessthe publication is not for public good. Section 4 of the Act extended theGprotection to broadcasting of these proceedings. Subsequently, theConstitution was amended by the Constitution (Forty fourth) AmendmentAct, 1978 to include Article 361A. Article 361A amplifies the protectionprovided in the 1977 Act. Article 361A reads as follows:“361-A . Protection of publication of proceedings of Parliamentand State Legislatures.—(1) No person shall be liable to anyproceedings, civil or criminal, in any court in respect of thepublication in newspaper of substantially true report of anyproceedings of either House of Parliament or the LegislativeAssembly, or, as the case may be, either House of the Legislature,of State, unless the publication is proved to have been madewith malice: Provided that nothing in this clause shall apply to thepublication of any report of the proceedings of secret sitting ofeither House of Parliament or the Legislative Assembly, or, as thecase may be, either House of the Legislature, of State.

(2) Clause (1) shall apply in relation to reports or mattersbroadcast by means of wireless telegraphy as part of anyprogramme or service provided by means of broadcastingstation as it applies in relation to reports or matterspublished in newspaper.

Explanation.—In this article, “newspaper” includes news agencyreport containing material for publication in newspaper.”

(emphasis supplied)

In May 2002, the Kerala Legislative Assembly issued Instructionson Broadcasting and Telecasting of Governor’s Address and AssemblyProceedings[45] pursuant to Rule 306 of the Kerala Assembly Rules. Thus,although broadcasting of proceedings was not initially visualised withinthe meaning of the word ‘publication’, the meaning of the term‘publication’ has evolved in contemporary parlance. Broadcasting ofproceedings is also form of publication, though not in the form of print,which serves the same purpose of disseminating information to the publicas publication in the printed format.

72. We now turn to the second ingredient of Article 194(2), whichis whether the alleged proceedings were published by or under theauthority of the House. The video recording of the incident was seizedfrom the Electronic Control Room. Various local and national newschannels carried telecasts of snippets of the incident of 13 March 2015on the very same day. The 2002 Instructions permit broadcasting ofproceedings after obtaining the prior permission of the Speaker forrecording. Therefore, if permission for recording the proceedings has

DEF

Abeen provided to the news channels, then the broadcast would usuallybe publication ‘under the authority of the House’. However, Clause 7of the 2002 Instructions denies permission to record any interruption/disorder during the address. Clause 7 states:

“7. Cameras should not record any interruption/disorder or walk-Bout during the Address. In case of any such eventuality the camerasshall be focussed only on the dignitary.”

Since the 2002 Instructions grant permission for the recording ofthe proceedings subject to conditions such as that mentioned in clause 7,any recording that contravenes the conditions stipulated is not recordingC‘under the authority of the House’. When the recording of such anincident is itself without authority, the publication/broadcasting of it wouldalso have no authority of the House. Thus, though the video recording ofthe incident that was broadcast in the local and national news channelswould fall within the purview of the word ‘publication’, it did not havethe authority of the House to be recorded, and thus the members cannotDbe granted immunity.

73. In addition to this, it is also worth mentioning that the videorecording that was procured from the Electronic Control Room of theAssembly is not copy of the broadcast of the incident in the local ornational television but was part of the internal records of the Assembly.EThus, the stored video footage of the incident was not broadcast, or inother words, published, for dissemination to the public. Since it was nota “publication” of the House, it does not enjoy the protection of immunityunder Article 194(2) of the Constitution.74. Though the argument of the appellants can be rejected at thisFstage, we find it necessary to deal with the third ingredient - that iswhether the incident that transpired on 13 March 2015 was ‘proceeding’under Article 194(2), thus bestowing the appellants with absolute immunity.75. Erskine May defines the phrase ‘parliamentary proceedings’as follows:G

“The primary meaning of proceedings, as technical parliamentaryterm, which it had at least as early as the seventeenth century, issome formal action, usually decision, taken by the Housein its collective capacity. While business which involves actionsand decisions of the House are clearly proceedings, debate is anHintrinsic part of that process which is recognised by its

inclusion in the formulation of article IX. An individualMember takes part in proceeding usually by speech, butalso by various recognized forms of formal action, such asvoting, giving notice of motion, or presenting petitionor report from committee, most of such actions being timesaving substitutes for speaking”[46]

(emphasis supplied)

76. In Attorney General of Ceylon vs de Livera[47], Section 14of the Bribery Act of Ceylon (as Sri Lanka was then called) was inquestion before the Judicial Committee of the Privy Council. Section 14states that an inducement or reward to member of the House ofRepresentatives for doing or forbearing to do any act ‘in his capacity assuch member’ is an offence. While interpreting the phrase ‘in his capacityas such member’, Viscount Radcliffe referred to Article 9 of the Bill ofRights 1689 which provides parliamentary privilege. The judgment notes:

“What has come under inquiry on several occasions is the extentof the privilege of member of the House and the complementaryquestion, what is ‘proceeding in Parliament’? This is not thesame question as that now before the Board, and there is nodoubt that the proper meaning of the words ‘proceedingsin Parliament’ is influenced by the context in which theyappear in article 9 of the Bill of Rights; but the answer givento that somewhat more limited question depends upon very similarconsideration, in what circumstances and in what situationsis member of the House exercising his ‘real’ or ‘essential’function as member? For, given the proper anxiety of theHouse to confine its own or its members’ privileges to theminimum infringement of the liberties of others, it isimportant to see that those privileges do not cover activitiesthat are not squarely within member’s true function.”

(emphasis supplied)

Thus, the test that was laid down for identification of activitiesthat fall within the meaning of the word ‘parliamentary proceedings’was whether the activity/function was real or essential functionof themember.

46 Supra note 25 at 235.

47 [1963] AC 103.

DEF

A77. In Chaytor (supra), the question before the UK SupremeCourt was the interpretation of the phrase “proceedings in Parliament”.Elucidating on the meaning of the expression, it was held:

“47. The jurisprudence to which I have referred is sparse anddoes not bear directly on the facts of these appeals. It supportsBthe proposition, however, that the principal matter to which article9 is directed is freedom of speech and debate in the Houses ofParliament and in parliamentary committees. This is where thecore or essential business of Parliament takes place. Inconsidering whether actions outside the Houses andcommittees fall within parliamentary proceedings becauseCof their connection to them, it is necessary to consider thenature of that connection and whether, if such actions donot enjoy privilege, this is likely to impact adversely onthe core or essential business of Parliament.48. If this approach is adopted, the submission of claim forms forDallowances and expenses does not qualify for the protection ofprivilege. Scrutiny of claims by the courts will have no adverseimpact on the core or essential business of Parliament, itwill not inhibit debate or freedom of speech. Indeed it willnot inhibit any of the varied activities in which Members ofEParliament indulge that bear in one way or another on theirparliamentary duties. The only thing that it will inhibit isthe making of dishonest claims.

62. Thus precedent, the views of Parliament and policy all point inthe same direction. Submitting claims for allowances andFexpenses does not form part of, nor is it incidental to, thecore or essential business of Parliament, which consists ofcollective deliberation and decision making. The submissionof claims is an activity which is an incident of the administrationof Parliament; it is not part of the proceedings in Parliament. I amsatisfied that Saunders J and the Court of Appeal were right toGreject the defendants’ reliance on article 9.”

(emphasis supplied)

According to Chaytor (supra), the activities undertaken withinthe House are classified into two categories - essential functions andnon-essential functions. The essential function of the House is collectiveH

deliberation and decision making. For an act in the House to be providedimmunity from legal proceedings, it must either be an essential functionor must affect the exercise of an essential function of the House.

78. This meaning provided to the phrase ‘parliamentaryproceedings’ in Chaytor (supra) and de Livera (supra) finds supportin the text of the Constitution of India. At this stage, we find it imperativeto refer to other provisions of the Constitution that mention the phrase‘proceedings’ in reference to the legislative assembly. Article 194(4)states that the provisions of Articles 194(1), (2) and (3) shall also applyto anybody who takes part in the ‘proceedings’ of the House. Article212(1) states that the validity of the ‘proceedings’ in the State Assemblyshall not be called in question on the ground of irregularity of theprocedure. In both Articles 194(4) and 212(1) it is evident that the word‘proceedings’ does not include all the activities inside the House withinits meaning. If the act of the respondent-accused is considered as a‘proceeding’ on the ground that the alleged destruction of public propertyheld nexus with the budget speech, then it would mean that if non-member who is called before the Assembly to depose would also beprotected by Article 194(4), if they commit similar act as that of therespondent-accused. Similarly, the reference to ‘proceedings’ in Article212(1) can only mean specific actions such as the passing of Bill.What is, however, evident from the above discussion is that the word‘proceedings’ will take within it the meaning that is contextuallyappropriate.

79. To understand the meaning of the word ‘proceedings’ in Article194(2), it is necessary that we look at the context of the provision. Article194(1) states that the members of the House shall have freedom ofspeech in the legislature. The freedom of speech that is provided to themembers is subject to the provisions of the Constitution and other standingorders. It was held in P.V. Narasimha Rao (supra) that the freedom ofspeech provided to the members of the House is absolute and independentof Article 19 of the Constitution, and that the freedom of speech of themembers inside the House cannot be restricted by the reasonablerestrictions provided in Article 19(2) of the Constitution. Thus, althoughthe members of the House are restricted from discussing the conduct ofa Judge of the Supreme Court or High Court in the discharge of theirduties, but they cannot be precluded from undertaking any discussion onthe grounds of violation of Article 19(2) of the Constitution.

A80. Article 194(2), as mentioned above, is divided into two limbs.The first limb of Article 194(2) which provides the members absoluteimmunity with respect of anything said or any vote given in the House isa manifestation of the freedom of speech provided under Article 194(1).The second limb of Article 194(2) gives the members immunity in respectof the publication of ‘any report, paper, votes, or proceedings’ by orBunder the authority of the house. The legal immunity to ‘anything said orany vote given’ in the first limb and the ‘publication of report, paper,votes, or proceedings’ in the second limb of Article 194(2), flow fromthe freedom of speech that is provided under Article 194(1). The exerciseof these manifestations of the freedom of speech – as provided in ArticleC194(2) – has been provided with express immunity. However, the onlydifference between the two limbs of Article 194(2) is that the first limbprotects the exercise of the freedom, and the second limb protects themember against the publication of the said exercise of the freedom.The legal proceedings against the exercise of the freedom can only beinitiated by those aware of the exercise of freedom, which would meanDeither those who are present in the House or those who become awareof it when the speech, vote or the like, is published. While the freedomsprotected by both the limbs are substantively the same, the second limbis clarificatory in the sense that it prevents ‘any person’ from initiatingproceedings against the exercise of freedom of speech inside the HouseEwhen they obtain knowledge of the exercise of the said freedom througha publication. Thus, the immunity provided for the exercise of themanifestations of the freedom of speech in the second limb of underArticle 194(2) cannot exceed the freedom of speech provided in thefirst limb of Article 194(2). As held above, that acts of destruction ofpublic property are not privileged under the first limb of Article 194(2).FConsequently, acts of vandalism cannot be said to be manifestations ofthe freedom of speech and be termed as “proceedings” of the Assembly.It was not the intention of the drafters of the Constitution to extend theinterpretation of ‘freedom of speech’ to include criminal acts by placingthem under veil of protest. Hence, the Constitution only grants theGmembers the freedom of speech that is necessary for their activeparticipation in meaningful deliberation without any fear of prosecution.

81. Moreover, the word ‘proceedings’ in Article 194(2) followsthe words ‘any report, paper, votes’. Reports, papers and votes are actionsthat are undertaken by the members of the Assembly in their officialHcapacity for participation and deliberation in the House. These are

essential functions that member has to perform in order to dischargeher duty to the public as their elected representative. On application ofthe interpretative principle of noscitur sociis, the phrase ‘proceedings’takes colour from the words surrounding it. Since the words associatedwith the phrase ‘proceedings’ refer to actions that are exercised by themembers in their official capacity, in furtherance of their official functions,the meaning of the word ‘proceedings’ must also be restricted to onlyinclude such actions.

82. Accordingly, we reject the submissions of the appellant andhold that the video recording of the incident was not “proceeding” ofthe Assembly, which would be protected from legal proceedings underArticle 194(2).

C.5.2 Inadmissibility of the video recording as evidence

83. Mr Ranjit Kumar, learned Senior counsel, has urged before usthat the video recording was not obtained by the investigating authoritieswith the sanction of the Speaker. He has submitted that the video recordingbelongs to the Electronic Record Room of Assembly and as the custodianof the House, the permission of the Speaker is necessary to access thisvideo recording. It was also submitted that the video recording lacks thecertification required for admissibility of evidence.

84. We do not believe that this submission is relevant and meritsconsideration by this Court in an application for withdrawal of prosecutionunder Section 321 of the CrPC. In our opinion, the High Court hascorrectly observed that questions of insufficiency of evidence, admissibilityof evidence absent certifications etc., are to be adjudged by the trialcourt during the stage of trial. As held by the Constitution Bench of thisCourt in Sheonandan Paswan (supra), it is not the duty of this Court, inan application under Section 321 of the CrPC, to adjudicate uponevidentiary issues and examine the admissibility or sufficiency of evidence.

85. For the reasons indicated above, we have arrived at theconclusion that there is no merit in the appeals. The appeals shallaccordingly stand dismissed.

86. Pending application(s), if any, stand disposed of.

Nidhi Jain

Appeals dismissed.