The State of Kerala vs K. Ajith & Ors.

s. 321 – Matter pertaining to declining of application for withdrawal made by the public prosecutor u/s. 321 CrPC by Chief Judicial Magistrate and the High Court – Plea that the video recording of the incident was procured from the Electronic Record Room of Assembly without the permission of the Speaker; and that the video recording lacks the certification required for admissibility of evidence – Held: Questions of admissibility of evidence, absent certifications etc., are to be adjudged by the trial court during the stage of trial – It is not the duty of this Court, in an application u/s.

321 to adjudicate upon evidentiary issues and examine the admissibility or sufficiency of evidence – Evidence Act, 1872 – s. 65B.

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

Arts. 105 and 194 – Privileges and immunities of Members of Parliament and MLAs – Interpretation – Scope of – Explained. Art. 194 – Powers, privileges, etc, of the House of Legislatures and of the members and committees thereof – Parliamentary proceedings – Immunity from publication of proceedings of the House – Held: Parliamentary proceedings does not include all activities inside the house – It is only limited to essential functions of members in their official capacity for participation and deliberation in the house – Act of destruction and vandalism not manifestation of freedom of speech and cannot be termed as proceedings of the assembly – Thus, video recording of the incident was not a “proceeding” of the Assembly, which would be protected from legal proceedings u/Art.194(2).

Art. 136 – Jurisdiction under – Exercise of – Matter pertaining to declining of application for withdrawal made by the public prosecutor u/s. 321 CrPC by Chief Judicial Magistrate and the High Court – Interference with – Held: Court not to embark upon a roving enquiry into the facts and evidence of case like this – Interference warranted when findings suffer from a palpable error or perversity. Parliamentary privileges: Nature of the privileges and immunities enjoyed by members of the House of Commons in the United Kingdom – Evolution of, through various phases – Jurisprudential development – Discussed.

Dismissing the appeals, the Court

HELD: 1. The principles which emerge on the withdrawal of a prosecution under Section 321 of the Code of Criminal Procedure, 1973 are:

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

(ii) The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice;

(iii) The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution;

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

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

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

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

(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;

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

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

(vi) While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and

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

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

State of Bihar vs Ram Naresh Pandey & Anr. AIR 1957 SC 389 : [1957] SCR 279; M.N Sankarayaraynan Nair vs P.V Balakrishnan (1972) 1 SCC 318 : [1972] 2 SCR 599; Rajender Kumar Jain vs State through Special Police Establishment and Ors. (1980) 3 SCC 435 : [1980] 3 SCR 982; Yerneni Raja Ramchandar vs State of Andhra Pradesh & Ors. (2009) 15 SCC 604 : [2009]

12 SCR 494; Bairam Muralidhar vs State of Andhra Pradesh (2014) 10 SCC 380 : [2014] 8 SCR 328

– referred to.

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

2.2 Clause 1 of Article 194 recognizes the freedom of speech in the legislature of every State. However, the freedom recognized by clause 1 is subject to the provisions of the Constitution and standing orders regulating the procedure of the State Legislatures. Clause 2 enunciates a rule of immunity which protects a member of the legislature from a proceeding in any court “in respect of anything said or a vote given” in the legislature or in any committee of the legislature. Moreover it provides a shield against any liability for a publication of a report, paper, votes or proceedings by or under the authority of the House. Further, clause 3 of Article 194 provides that in other respects the privileges and immunities are such as defined by law. Until defined by law-there being presently no law on the subject-the privileges and immunities of the members of the House and its committees shall be such as were in existence before Section 26 of the FortyFourth Amendment to the Constitution came into force. According to clause 4, the privileges and immunities also attach to those who have a right to speak in and participate in the proceedings of the House or its committees. [Para 25][813-G-H; 814-A-C]

2.3 At the time of the adoption of the Constitution, clause 3 of Article 194 provided that the privileges, immunities and powers of a House of the Legislature of a State (and of its members and committees) shall be such as may from time to time be defined by the legislature by law, and until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution. By Section 34 of the Forty-Second Amendment to the Constitution, clause (3) of Article 194 was amended and embodied a transitory provision under which until the powers, privileges and immunities of a House of the legislature of a State (and of the members and its committees) were defined by a law made by the legislature, they shall be those of the British House of Commons and the privileges of each House “shall be such as may from time to time be evolved by such House”. However, Section 34 was not brought into force by issuing a notification under Section 1(2) of the Constitution (Forty-Second) Amendment Act 1976. Eventually, clause (3) in its present form was substituted by Section 26 of the Constitution (Forty-Fourth) Amendment Act 1978 with effect from 20 June 1979. The present position of clause (3) is that: the ultimate source of the powers, privileges and immunities of a House of a State Legislature and of the members and committees would be determined by way of a legislation; until such legislation is enacted, the position as it stood immediately before the coming into force of Section 26 of the Forty-Fourth Amendment Act 1978 would govern; and the amendment to the Constitution introducing the concept of evolution of privileges and immunities by the House of the legislature never came into force and now stands deleted. Since the Parliament is yet to enact a law on the subject of parliamentary privileges, according to Article 194(3) of the Constitution, the MLAs shall possess privileges that the members of the House of Commons possessed at the time of enactment of the Constitution. [Para 26, 29][814-C-G; 817-C]

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

R vs Eliot, Holles and Valentine (1629) 3 St Tr 292336; Raja Ram Pal vs Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184:[2007] 1 SCR 317; Bradlaugh vs Gossett [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 Edward Coke, Fourth Part Of The Institutes of the Laws of England 14 (1797) – referred to.

3. Whenever a claim of privilege or immunity is raised in the context of Article 105(3) or Article 194 (3), the Court is entrusted with the authority and the jurisdiction to determine whether the claim is sustainable on the anvil of the constitutional provision. Neither Parliament nor the State legislatures in India can assert the power of “self-composition or in other words the power to regulate their own constitution in the manner claimed by the House of Commons or in the UK”. The decision therefore emphasizes the doctrine of constitutional supremacy in India as distinct f rom parliamentary supremacy in the UK. [Para 42][824-G-H; 825-AB]

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

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

4. In approaching the task in the exercise of its jurisdiction under Article 136 of the Constitution, the Court must do well to bear in mind the caution which has been expressed in the decision of the majority in the Constitution Bench decision in Sheonandan Paswan’s case. The Court noted that it had been “the declared policy of this Court not to embark upon a roving enquiry into the facts and evidence of case like this”, particularly because any observation on merits or facts and evidence will cause serious prejudice to parties at trial. Hence, in approaching the submissions of the counsel, it is necessary to begin with a caution and caveat that in evaluating them the Court must not transcend the limits of its jurisdiction under Article 136. Both the CJM and the High Court have come to the conclusion that the application for withdrawal made by the public prosecutor under Section 321 should not be allowed. The issue is whether these findings suffer from a palpable error or perversity which would warrant interference by this Court. [Para 45][823-B-F] Sheonandan Paswan vs State of Bihar & Ors. (1987) 1 SCC 288 : [1987] 1 SCR 702 – followed.

5.1 The conclusion of the High Court to affirm the decision of the CJM must be analysed from prism of the law as it has been enunciated consistently in several decisions before and after the judgment of the Constitution Bench and of course, in the decision in Sheonandan Paswan’s case. The second aspect which must be borne in mind is that the High Court has accepted the fact that no mala fides can be attributed to the application for withdrawal. It is to be considered whether this is a circumstance which in and of itself should have resulted in allowing the application for the grant of permission for withdrawal of the prosecution under Section 321. The issue on this aspect of the case is whether a finding that there is no absence of good faith must inexorably result in allowing an application under Section 321 bereft of the other considerations which must underlie such a decision. [Para 46][827-A-C]

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

5.2 The persons who have been named as the accused in the FIR in the instant case held a responsible elected office as MLAs in the Legislative Assembly. In the same manner as any other citizen, they are subject to the boundaries of lawful behaviour set by criminal law. No member of an elected legislature can claim either a privilege or an immunity to stand above the sanctions of the criminal law, which applies equally to all citizens. The purpose and object of the Prevention of Damage to Public Property Act 1984 was to curb acts of vandalism and damage to public property including (but not limited to) destruction and damage caused during riots and public protests. [Para 52][831-E-G]

Re: Destruction of Public and Private Properties 2009

5 SCC 212 : [2009] 6 SCR 439; Kodungallur Film Society and Another vs Union of India 2018 10 SCC

713 : [2018] 12 SCR 695 – referred to.

5.3 A member of the legislature, the opposition included, has a right to protest on the floor of the legislature. The right to do so is implicit in Article 105(1) in its application to Parliament and Article 194(1) in its application to the State Legislatures. The first clauses of both these Articles contain a mandate that “there shall be freedom of speech” in Parliament and in the legislature of every State. Nonetheless, the freedom of speech which is protected by the first clause is subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the legislature. The second clause provides immunity against liability “to any proceedings in any court” in respect of “anything said or any vote given” in the legislature or any committee. Moreover, no person is to be liable in respect of the publication by or under the authority of Parliament or of the House of the State Legislature of any report, paper, votes or proceedings. The history of Clause (3) of Article 194 as it originally stood under which the powers, privileges and immunities of the members of Parliament and of the State Legislatures were those which were recognised for Members of the House of Commons immediately before the enforcement of the Constitution. This provision was sought to be amended by the Forty Second Amendment and was ultimately amended by the Forty Fourth Amendment, from which it derives its present form. It recognises the powers, privilege and immunities as they stood immediately before the enforcement of Section 26 of the Forty Fourth Amendment. [Para 53][831-G-H; 832-A-D]

5.4 Tracing the history of the privileges and immunities enjoyed by members of the House of Commons, Erskine May makes a doctrinal division of the position in the UK into various phases. However, the stand out feature which emerges from the privileges and immunities of the members of the House of Commons is the absence of an immunity from the application of criminal law. [Para 54][832-D-F]

5.5 There is a valid rationale for this position. The purpose of bestowing privileges and immunities to elected members of the legislature is to enable them to perform their functions without hindrance, fear or favour. The oath of office which members of Parliament and of the State Legislature have to subscribe requires them to (i) bear true faith and allegiance to the Constitution of India as by law established; (ii) uphold the sovereignty and integrity of India; and (iii) faithfully discharge the duty upon which they are about to enter. It is to create an environment in which they can perform their functions and discharge their duties freely that the Constitution recognizes privileges and immunities. These privileges bear a functional relationship to the discharge of the functions of a legislator. They are not a mark of status which makes legislators stand on an unequal pedestal. It is of significance that though Article 19(1)(a) expressly recognises the right to freedom of speech and expression as inhering in every citizen, both Articles 105(1) and 194(1) emphasise that “there shall be freedom of speech” in Parliament and in the Legislature of a State. In essence, Article 19(1)(a) recognizes an individual right to the freedom of speech and expression as vested in all citizens. Articles 105(1) and 194(1) speak about the freedom of speech in the Parliament and State Legislatures and in that context must necessarily encompass the creation of an environment in which free speech can be exercised within their precincts. The recognition that there shall be freedom of speech in Parliament and the State Legislatures underlines the need to ensure the existence of conditions in which elected representatives can perform their duties and functions effectively. Those duties and functions are as much a matter of duty and trust as they are of a right inhering in the representatives who are chosen by the people. [Para 55][832-F-H; 833-A-D]

R vs Eliot, Holles and Valentine (1629) 3 St Tr 292336; Bradlaugh vs Gossett [1884] EWHC 1 (QB); R vs Chaytor and others [2010] UKSC 52 – referred to.

5.6 Privileges and immunities are not gateways to claim exemptions from the general law of the land, particularly as in this case, the criminal law which governs the action of every citizen. To claim an exemption from the application of criminal law would be to betray the trust which is impressed on the character of elected representatives as the makers and enactors of the law. The entire foundation upon which the application for withdrawal under Section 321 was moved by the Public Prosecutor is based on a fundamental misconception of the constitutional provisions contained in Article 194. The Public Prosecutor seems to have been impressed by the existence of privileges and immunities which would stand in the way of the prosecution. Such an understanding betrays the constitutional provision and proceeds on a misconception that elected members of the legislature stand above the general application of criminal law. [Para 56][833-D-G]

5.7 The reliance on P.V Narasimha Rao’s case to argue that the action of the respondent-accused inside the House was a form of ‘protest’ which bears a close nexus to the freedom of speech, and thus, is covered by Article 194(2) is unsatisfactory. The majority in P.V Narasimha Rao’s case dealt with the interpretation of the phrase ‘in respect of’ and gave it a wide import. At the same time, the majority observed that there must be a nexus between the act or incident (which in that case was the act of bribery in the context of the votes cast on a motion of noconfidence) and the freedom of speech or to vote, which bore a close nexus to the freedom protected under Article 105(2). The case however, did not deal with the ambit of the privilege of ‘freedom of speech’ provided to the members of the House. It was in Lokayukta, Justice Ripusudan Dayal (Retired)’s case that a three judge Bench of this Court laid down the law for the identification of the content of the privileges. It was held that the members shall only possess such privileges that are essential for undertaking their legislative functions. An alleged act of destruction of public property within the House by the members to lodge their protest against the presentation of the budget cannot be regarded as essential for exercising their legislative functions. The actions of the members have trodden past the line of constitutional means, and is thus not covered by the privileges guaranteed under the Constitution. [Para 57] [833-G-H; 834-A-D]

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

5.8 The true function of the court when an application under Section 321 is filed is to ensure that the executive function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. The court will grant its consent if it is satisfied that it sub-serves the administration of justice and the purpose of seeking it is not extraneous to the vindication of the law. It is the broad ends of public justice that must guide the decision. The public prosecutor is duty bound to act independently and ensure that they have applied their minds to the essential purpose which governs the exercise of the powers. Whether the public prosecutor has acted in good faith is not in itself dispositive of the issue as to whether consent should be given. The court must scrutinize “whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law”. Good faith is one and not the only consideration. The court must also scrutinize whether an application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given. [Para 58][834-D-H]

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

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

5.9 On the touchstone of these principles, there can be no manner of doubt that the CJM was justified in declining consent for the withdrawal of the prosecution under Section 321. The acts complained of which are alleged to constitute offences punishable under Sections 425, 427 and 447 of the IPC and under Section 3(1) of the Prevention of Damage of Public Property Act 1984 are stated to have been committed in the instant case on the floor of the State Legislature. Committing acts of destruction of public property cannot be equated with either the freedom of speech in the legislature or with forms of protest legitimately available to the members of the opposition. To allow the prosecution to be withdrawn in the face of these allegations, in respect of which upon investigation a final report has been submitted under Section 173 of the CrPC and cognizance has been taken, would amount to an interference with the normal course of justice for illegitimate reasons. Such an action is clearly extraneous to the vindication of the law to which all organs of the executive are bound. Hence, the mere finding of the High Court that there is no absence of good faith would not result in allowing the application as a necessary consequence, by ignoring the cause of public justice and the need to observe probity in public life. The members of the State Legislature have in their character as elected representatives a public trust impressed upon the discharge of their duties. Allowing the prosecution to be withdrawn would only result in a singular result, which is that the elected representatives are exempt from the mandate of criminal law. This cannot be countenanced as being in aid of the broad ends of public justice. [Para 59][835-A-E]

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

P.V. Narasimha Rao vs State (CBI/SPE) etc AIR 1998 SC 2120 : [1998] 2 SCR 870 ; K. Veeraswami vs Union of India (1991) 3 SCC 655 : [1991] 3 SCR 189 ; Satish Chandra vs Speaker, Lok Sabha (2014) 2 SCC 178; Ramdas Athawale (5) vs Union of India (2010) 4 SCC

1 : [2010] 3 SCR 1059; Attorney General of Ceylon vs de Livera [1963] AC 103 – referred to.

7.1 Article 194(2) is divided into two limbs. The first limb of Article 194(2) which provides the members absolute immunity with respect of anything said or any vote given in the House is a manifestation of the freedom of speech provided under Article 194(1). The second limb of Article 194(2) gives the members immunity in respect of the publication of ‘any report, paper, votes, or proceedings’ by or under the authority of the house. The legal immunity to ‘anything said or any vote given’ in the first limb and the ‘publication of a report, paper, votes, or proceedings’ in the second limb of Article 194(2), flow from the freedom of speech that is provided under Article 194(1). The exercise of these manifestations of the freedom of speech – as provided in Article 194(2) – has been provided with express immunity. However, the only difference between the two limbs of Article 194(2) is that the first limb protects the exercise of the freedom, and the second limb protects the member against the publication of the said exercise of the freedom. The legal proceedings against the exercise of the freedom can only be initiated by those aware of the exercise of freedom, which would mean either those who are present in the House or those who become aware of it when the speech, vote or the like, is published. While the freedoms protected by both the limbs are substantively the same, the second limb is clarificatory in the sense that it prevents ‘any person’ from initiating proceedings against the exercise of freedom of speech inside the House when they obtain knowledge of the exercise of the said freedom through a publication. Thus, the immunity provided for the exercise of the manifestations of the freedom of speech in the second limb of under Article 194(2) cannot exceed the freedom of speech provided in the first limb of Article 194(2). That acts of destruction of public property are not privileged under the first limb of Article 194(2). Consequently, acts of vandalism cannot be said to be manifestations of the freedom of speech and be termed as “proceedings” of the Assembly. It was not the intention of the drafters of the Constitution to extend the interpretation of ‘freedom of speech’ to include criminal acts by placing them under a veil of protest. Hence, the Constitution only grants the members the freedom of speech that is necessary for their active participation in meaningful deliberation without any fear of prosecution. [Para 80][848-A-G]

7.2 Moreover, the word ‘proceedings’ in Article 194(2) follows the words ‘any report, paper, votes’. Reports, papers and votes are actions that are undertaken by the members of the Assembly in their official capacity for participation and deliberation in the House. These are essential functions that a member has to perform in order to discharge her duty to the public as their elected representative. On application of the interpretative principle of noscitur a sociis, the phrase ‘proceedings’ takes colour from the words surrounding it. Since the words associated with the phrase ‘proceedings’ refer to actions that are exercised by the members in their official capacity, in furtherance of their official functions, the meaning of the word ‘proceedings’ must also be restricted to only include such actions.The submissions of the appellant are rejected and it is held that the video recording of the incident was not a “proceeding” of the Assembly, which would be protected from legal proceedings under Article 194(2). [Paras 81, 82][848-G-H; 849-A-C]

P.V. Narasimha Rao vs State (CBI/SPE) etc AIR 1998 SC 2120 : [1998] 2 SCR 870 – referred to.

R vs Chaytor and others [2010] UKSC 52;Attorney General of Ceylon vs de Livera [1963] AC 103

– referred to.

7.3 The submission that the video recording was not obtained by the investigating authorities with the sanction of the Speaker; that the video recording belongs to the Electronic Record Room of Assembly and as the custodian of the House, the permission of the Speaker is necessary to access this video recording; and that the video recording lacks the certification required for admissibility of evidence is not relevant and does not merit consideration by this Court in an application for withdrawal of prosecution under Section 321 of the CrPC. The High Court has correctly observed that questions of insufficiency of evidence, admissibility of evidence absent certifications etc., are to be adjudged by the trial court during the stage of trial. It is not the duty of this Court, in an application under Section 321 of the CrPC, to adjudicate upon evidentiary issues and examine the admissibility or sufficiency of evidence. [Paras 83, 84] [849-D-F]

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