# [1961] 3 S.C.R. 486

- **Citation:** [1961] 3 S.C.R. 486
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Criminal Appeal No. 65of1958
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. MuDBOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1961-3-s-c-r-486-2033
- **Pages:** 9

## Headnote

State Legislature-Member, Powers and Privileges of-:-Publication of questions disallowed by Speaker-Prosecution for defamation
-Immunity-Constitution of India, Art. z94-Indian Penal Code,
z86o (XLV of z86o), ss. 499, 500.
The appellant, who was an elected member of the West
Bengal Legislative Assembly, gave notice of his intention to put
certain questions in the Assembly and on those questions being
disallowed by the Speaker published them in a journal called
Janamat of Ghatal, his own constituency. The first respondent who was then the Sub-Divisional Magistrate of Ghatal and
whose conduct was the subject-matter of some of those questions,
filed a complaint against the appellant and two others, the editor
and the printer and publisher of the J anamat, under ss. 500 and
501 of the Indian Penal Code. The appellant pleaded privilege
and immunity under Art. 194 of the Constitution as a bar to
criminal prosecution. The trial Magistrate as also the High Court
found against him. On appeal by special leave, it was claimed on
his behalf that he had an absolute privilege under Art..194 of the
Constitution to publish the disallowed questions and could not be
prosecuted therefor.
Held, that the claim of immunity under Art. 194 of the
Constitution must be negatived.
Clause (I)·of Art. 194 had no application since the matter was
clearly outside the scope of that clause.
Clause (2) of that Article was also inapplicable since it was
not the case of the appellant that the publication was under the
authority of the Legislative Assembly and it could not also be said
that it came within the expression "anything said or any vote
given" in that clause.
The publication of a disallowed question by a member of the
Assembly does not come within the powers, privileges and
immunities enjoyed by a member of the House of Commons and,
consequently, cl. (3) of Art. 194 also cannot be of any help to the
appellant. The immunity enjoyed by a member of the House of
Commons is clearly confined to speeches made in Parliament and
does not extend to the publication of the debate outside. If he
publishes his.speech, made in the House, separately from the
rest of the proceedings of the House, he is liable for defamation,
in case it is defamatory.
Abingdon's case, Espinasse's Reports, Nisi Prius 1793-1810,
228 and Creevey's case, l Maule and Selwyn's Reports, King's
Bench, 1813-1817, 273, referred !n
3 S.C.R.
SUPREME COURT REPORTS
487
There is no absolute privilege attaching to the publication of
x96x
extracts from the proceedings in the House of Commons and a
-
member, who has absolute privilege in respect of his speech in Dr. ]atish Cha•dr<
the House itself, can claim only a qualified privilege in respect of
Ghosh
it if he causes the same to be published in the public press.
v.
Quaere: Whether publication of parliamentary proceedings,
Hari Sadhan
not authorised by the House, stands on the same footing as the
Mukherjee
publication of proceedings in a court of law.
Wason v. Walter, (1868-69) L.R. 4 Q.B. 73, referred to.
M. S. M. Sharma v. Sri Krishna Sinha, [1959] Supp. l S.C.R.
806, distinguished.
Dr. Suresh Chandra Banerjee v. Punit Goala, (1951) 55 C.W.N.
745, referred to.

## Text

·j(l'ltuary z6.
486
SUPREME COURT REPORTS
[1961)
DR. JATISH CHANDRA GHOSH
'I!,
HAR! SADHAN MUKHERJEE AND OTHERS.
(B. P. SINHA, C.J., s. K. DAS, A. K. SARKAR,
N. RAJAGOPALA AYYANGAR and J. R. MuDBOLKAR,JJ.)
State Legislature-Member, Powers and Privileges of-:-Publication of questions disallowed by Speaker-Prosecution for defamation
-Immunity-Constitution of India, Art. z94-Indian Penal Code,
z86o (XLV of z86o), ss. 499, 500.
The appellant, who was an elected member of the West
Bengal Legislative Assembly, gave notice of his intention to put
certain questions in the Assembly and on those questions being
disallowed by the Speaker published them in a journal called
Janamat of Ghatal, his own constituency. The first respondent who was then the Sub-Divisional Magistrate of Ghatal and
whose conduct was the subject-matter of some of those questions,
filed a complaint against the appellant and two others, the editor
and the printer and publisher of the J anamat, under ss. 500 and
501 of the Indian Penal Code. The appellant pleaded privilege
and immunity under Art. 194 of the Constitution as a bar to
criminal prosecution. The trial Magistrate as also the High Court
found against him. On appeal by special leave, it was claimed on
his behalf that he had an absolute privilege under Art..194 of the
Constitution to publish the disallowed questions and could not be
prosecuted therefor.
Held, that the claim of immunity under Art. 194 of the
Constitution must be negatived.
Clause (I)·of Art. 194 had no application since the matter was
clearly outside the scope of that clause.
Clause (2) of that Article was also inapplicable since it was
not the case of the appellant that the publication was under the
authority of the Legislative Assembly and it could not also be said
that it came within the expression "anything said or any vote
given" in that clause.
The publication of a disallowed question by a member of the
Assembly does not come within the powers, privileges and
immunities enjoyed by a member of the House of Commons and,
consequently, cl. (3) of Art. 194 also cannot be of any help to the
appellant. The immunity enjoyed by a member of the House of
Commons is clearly confined to speeches made in Parliament and
does not extend to the publication of the debate outside. If he
publishes his.speech, made in the House, separately from the
rest of the proceedings of the House, he is liable for defamation,
in case it is defamatory.
Abingdon's case, Espinasse's Reports, Nisi Prius 1793-1810,
228 and Creevey's case, l Maule and Selwyn's Reports, King's
Bench, 1813-1817, 273, referred !n
3 S.C.R.
SUPREME COURT REPORTS
487
There is no absolute privilege attaching to the publication of
x96x
extracts from the proceedings in the House of Commons and a
-
member, who has absolute privilege in respect of his speech in Dr. ]atish Cha•dr<
the House itself, can claim only a qualified privilege in respect of
Ghosh
it if he causes the same to be published in the public press.
v.
Quaere: Whether publication of parliamentary proceedings,
Hari Sadhan
not authorised by the House, stands on the same footing as the
Mukherjee
publication of proceedings in a court of law.
Wason v. Walter, (1868-69) L.R. 4 Q.B. 73, referred to.
M. S. M. Sharma v. Sri Krishna Sinha, [1959] Supp. l S.C.R.
806, distinguished.
Dr. Suresh Chandra Banerjee v. Punit Goala, (1951) 55 C.W.N.
745, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 65of1958.
Appeal by special leave from the judgment and
order dat.ed April 11, 1956, of the Calcutta High Court
in Criminal Revision No. 1584 of 1955.
N. 0. Chatterjee, Arun Kumar Dutta and D. N.
Mukherjee, for the appellant.
K.B. Bagchi and S.N. Mukherjee, for the respondents.
1961. January 16. The Judgment of the Court was
delivered by
SINHA, C.J.-This appeal by special leave is directed
Sinha C.J.
against the judgment and order of the High Court of
Judicature at Calcutta, dated April 11, 1956, whereby
the appellant's claim of absolute privilege as a member
of the Bengal Legislative Assembly was rejected and
the prosecution launched against him under s. 500,
Indian Penal Code, was allowed to proceed.
The facts of this case are not in doubt or dispute
and may shortly be stated as follows.
The appellant
is a citizen of India and an elected member of the
West Bengal Legislative Assembly.
He is also a
medical practitioner at Ghat.al in the Midnapore District of West Bengal. In January, 1954, the appellant
.gave notice of his intention to ask certain questions in
the Assembly. Those questions were disallowed in
accordance with the rules of procedure for the conduct
of business of the Assembly. In February, 1954, the
appellant was informed that the questions proposed by
him had been disn.llowed. The appellant published
488
SUPREME COURT REPORTS
[1961]
'96'
the questions that, had been disallowed in a local
Dr. Jatish Chandra journal called Janamat, in its issue of February 28,
Gh°'" ·
1955. In July, 1955, the first respondent, whose conv.
duct formed the subject-matter of the questions and
Hari Saa4an
who was then functioning as a Sub-divisional MagisMuhherjee
trate, filed a complaint against the appellant and two
others, the editor, and the printer and publisher resSinha C.J.
pectively of the journal aforesaid. The petition of
complaint alleged . that the appellant had made and
published scandalous imputations against him intending them to be read by members of the public, that
those imputations were false and unfounded and had
been made with the definite intention of harming or
with the knowledge or having reason to believe that
they would harm the reputation of the complainant
and that the complainant felt greatly aggrieved and
harmed in mind and reputation. He also alleged that
being a Government servant, the complainant had to
obtain the necessary permission from the Government
for instituting legal proceedings for the vindication of
his character as a public servant and that accounted
for the delay in filing the petition of complaint. The
petition of complaint charged the appellant with an
offence under s. 500 of the Indian Penal Code and the
second and third accused, who have been cited as respondents 2 and 3 in this Court, under s. 501 of the
Indian Penal Code. After several adjournments, the
petitioner raised, by way of preliminary objection to
the criminal prosecution, the question of his ab8olute
privilege and immunity from prosecution under the
provision of the Constitution. The learned Magistrate
by his order dated October 11, 1955, overruled the
objection and held that the privilege claimed by the
accused was not an unqualified one. . He relied on a
judgment of the Calcutta High Court in the case of
Dr. Buresh Chandra Banerjee v. Punit Goala (1) in support of his conclusion that the first accused before
him, now appellant, was not entitled to the privilege
and immunity claimed by him.
Thereafter, the
appellant moved the High Court under Art. 228 of the
Constitution fir having the case withdrawn to the
(1) (1951)'
'.N. 745·
I
-I
3 S.C.R.
SUPREME COURT REPORTS
489
High Court for determination of the constitutional
'96I
question raised by him by way of defence, but that D 1 1-:-;:Cha!sd
application was dismissed by a Bench of the High '· ·;~osh
14
Court on November 9, 1955, presumably on the ground
v.
that the case did not involve any substantial question
Hari Sadhaa
of law as to the interpretation of the Constitution.
Mukherjee
Not daunted by the ad verse order aforesaid of the
Sinha c.J.
Bench of the High Court, the petitioner again moved
the High Court and obtained a rule on several grounds
including the question of the proceedings being barred
by the provisions of Art. 194 of the Constitution. The
learned Single Judge, who dealt with the case on this
occasion, noticed the position that strictly speaking
the constitutional question could not be allowed to be
reagitated in view of the Bench decision aforesaid.
But the learned Judge all the same dealt with the
points raised by the appellant including the question
arising under Art. 194 of the Constitution.
The
learned Judge dismissed the application holding that
a member of the LegislativeAssembly had no absolute
privilege in respect of the questions sought to be
asked by him, which had been disallowed but he had
published them all the same. It was also pointed out
that the questions had never been asked in the House
and that, therefore, could not be said to form part of
the proceedings of the House. He further held that
the publication in the journal at the instance of the
appellant could .. by no means be said to have been
under the authority of the House.
The appellant
moved the learned Judge for a certificate under
Art. 132( 1) of the Constitution, but that application
was also refused on the ground that the case did not
involve any substantial question of law as respects
the interpretation of the Constitution. The appellant
then moved this Court and obtained special leave to
appeal from the judgment of the High Court refusing
the claim of privilege. He also obtained stay of further proceedings in the Court of the Magistrate. The
hearing of the appeal wae ordered to be expedited.
That order was passed on October l, 1956, but notwithstanding the order of expedition, the case came to be
heard only four years later,
6•
490
SUPREME COURT REPORTS
[1961]
I96I
In this Conrt, it has been contended on behalf of
Dr
~-Ch d the appellant tliat the learned Judge below had erred
· Ja~~osh an rain his interpretation of the provisions of Art. 194 of
v.
the Constitution and that on a proper construction of
Hari Sadhan
those provisions it should have been held (1) that
Mukh"j"
questions sought to be asked by a member of a Legislative Assembly, even though disallowed by the
Sinha C.J.
S
k
,.
d
f h
d
f
pea er, iorme part o t e procee ings o the House,
and, as such, their publication would not attract the
provisions of the Indian Penal Code; (2) the provisions
of Art. 194 should be liberally construed in favour of
persons like elected members of the Assembly who are
rendering public service not only by making speeches
and asking questions in the Assembly, but also by
publishing them in tbe public press with a view to
apprising the country and particularly the constituency of what had been happening in the House. In
other words, it was claimed that there was an absolute
privilege in favour of a member and that, therefore, he
could not be prosecuted for having published the questions ho sought to put, but had been disallowed by the
Speaker.
Do the provisions of Art. 194 of the Constitution
lend any support to the contentions aforesaid raised on
behalf of the appellant? The first clause of Art. 194
does not call for any comment in this case because no
question as regards freedom of speech in the Legislature of a State has been raised. Clause (2) of .the
Article has, firstly, laid down a bar against any proceedings, ci vii or criminal against any member of a
Legislature of a State in respect of anything said or
any vote given by him in the Legislature or any Committee thereof; and secondly, that no person shall be
liable in a civil or criminal proceeding in respect of the
pa:blication of any report, paper, votes or proceedings
under the authority of a House of such a Legislature.
It is not contended that the publication complained
against in this case was under the authority of the
Legislative Assembly of vVest Bengal. So the second
part of the second clause of Art. 194 cannot be pressed
in aid of the appellant's contention. As regards the
first p,.rt of the second clause, can it be said that the
publication, which forms the subject-matter of the
,
8 S.C.R.
SUPREME COURT REPORTS
491
prosecution in this case, can c0me within the purview
1961
of" anything said or any vote given" by a member of n. 1 -:--h-c• d
h L . 1 .
A
bl
? Th
b .
h ~. "'" ·•• '"
t e eg1s ative ssem y .
e answer must e m t e
Ghosh
negative. It is, therefore, manifest that cl. (2) of Art.
•·
194 is equally of no assistance to the appellant.
Harl S•dh••
Naturally, therefore, reliance was placed in the course
Mukherju
of arguments in this Court on the provisions of cl. (3)
of Art. 194. Does the publication of a disallowed quesSinha C.J.
tion by a member of an Assembly come within the
powers, privileges and immunities of the mew bers of
the House ? The answer to this question depends upon
finding out what are the powers, privileges and immunities of the members of the House of Commons of
the Parliament of the United Kingdom at the commencement of the Constituti-On. This Court in the case
of M. S. M. Sharma v. Shri Sri Krishna Sinha (1) has
considered in great detail those immunities with respect
to tl:te publication of a portion of a speech which was
directed by the Speaker to be expunged from the proceedings of the House. This Court has held that the
publication of such a portion of the proceedings is not
within the privilege attaching to the publication of a
faithful report of the proceedings of a House of the
State Legislature. That case was not concerned with
the penal law of the country. In that case the Court
was concerned with ascertaining the powers of the
Assembly to punish for contempt of the House with
reference to the privileges and immunities of a House
of the Legislature of a State. Hence, that decision does
not assist us in determining the present controversy.
1f we turn to the legal position in England with
reference to the House of Commons, it is clear that the
immunity of a member of the House of Commons is in
respect of the speeches ma.de by him in Parliament,
but it does not e;xtend to the publication of the debate
outside Pa.rJiamen.t, If a member of a House .of
Commons publishes his speech made in the House
separately from the rest of the proceedings in the
House, he will be liable for defamatipn if his speech
contains matters defamatory of any person. In the
celebrated case of R. v. Lord Abingdon('), Lord Kenyon
had decided that a spetich which had been maoo in
\1) (1959) Suppl. 1 S.C.R. 8o6.
(2) \179<1) I Esp. 2i6; 170 E.Jil.. '31·
492
SUPREME COURT REPORTS
[1961]
rg6r
the House of Lords was not privileged if published
Dr. Jatish Chandra separately from the. rest of the. debate. In May's
Gho•h
Parliamentary Practwe, 16th Ed1t10n, by Lord Camv.
pion, occur the following statements in respect of the
HariSad/lan
two well-known cases of Abingdon (') and Oreevey,
Mukherj"
Journal of the House of Commons (1812-13) 704 :-
Sinha C.j.
" Abingdon's case (').-An information was filed
against Lord Abingdon for a libel.
He had accused
his attorney of improper professional conduct., in a
speech delivered in the Bouse of Lords, which he
afterwards published in several newspapers at his
own expense. Lord Abingdon pleaded his own case
in the Court of King's Bench, and contended that
he had a right to print what he ha.d, by the Law of
Parliament, a right to speak; but Lord Kenyon said
that a. member of Parliament ha.d certainly a right
to publish his speech, but that speech should not be
ma.de a vehicle of slander against a11y individual; if
it was, it was a libel.
The Court. gave judgment
that his lordship should be imprisoned for three
months, pay a fine of £ 100, a.nd find security for
his good behaviour.
Oreevey's case (2), 1813.-Mr. Creevey, a member of
the House of Commons, had made a charge against
an individual in the House, and incorrect reports of
his speech having appeared in several newspapers,
Mr. Creevey sent a correct report to the editor of a
newspaper, with a request that he would publish it.
Upon an information filed against him, the jury
found the defendant guilty of libel, and the King's
Bench refused an application for a new trial (See
Lord Ellenborough's judgment in Rex v. Greevey {2)).
Mr. Creevey, who had been fined £100, complained
to the House of the proceedings of the King's Bench;
but the House refused to admit that they were a
breach of privilege."
It is clear on a reference to the law in England in
respect of the privileges and immunities of tbe House
of Commons that there is no absolute privilege attaching to the publication of extracts from proceedings in
the House of Commons. So far as a member of the House
of Commons is concerned, be has· an absolute privilege
(I) (1794) I Esp. ••6; 170 E.R. 337. (2) (1813) r M. & S. 273; 10; E.R. 10z.
'!
3 S.C.R.
SlTPREME COlTRT REPORTS
. 493
in respect of what he has spoken within the four walls
,961
of the House, but there is only a qualified pFivilege in
-
his favour even in respect of what he has himself said Dr. Jalish Chandra
in the House, if he causes the same to be published in the
Ghosh
public press. The case of publication of proceedings of
Hari ~adhan
Parliament, not under the authority of the House,
MukMrj"
stands on the same footing as the publication of proceedings in courts of justice. That was made clear by
Sinha C.J.
Cockburn, C.J., in the case of Wason v. Walter(').
Explaining why the publication of a single spEech i11
the proceedings in the House would not be absolutely
privileged, the learned Chief Justice observed:-
"It is to be observed that the analogy between
the case of reports of proceedings of courts o'f justice
and those of proceedings in Parliament being
complete, all the limitations placed on the one to
prevent injustice to individuals will necessarily
attach on the other; a garbled or partial report, or
of detached parts of proceedings, published with
intent to injure individuals, will equally be disentitled to protection."
So long as Parliament does not crystallise the legal
position by its own legislation, the privileges, powers
and immunities of a House of a State Legislature or
Parliament or of its members are the same as those of
the House of Commons, as stated above. In the
present case the appellant sought to put certain questions bearing upon the conduct of the complainant, the
first respondent, in this case.
According to r. 27 of
the Assembly Procedural Rules, certain conditions
have to be fulfilled in order that a question may be
admissible. Amongst other requirements of the rule,
one of the conditions is that it must not contain any
imputation or imply a charge of a personal character.
Rule 29 of those rules authorises the Speaker to decide
on the admissibility of a question with reference to the
provisions of the rules and lays down that the Speaker
" shall disallow any question when, in his opinion, it is
an abuse of the right of questioning, or is in contravention of those provisions. " In view of the conclusion
we have already reached, namely, that there is no
absolute privilege, even in favour of a member of the
LPgislature, in respect of a publication not of the entire
63
(1) (1868) L.R. 4 Q.B. 73, 94.
494
SUPREME COlJRT REPORTS
[1961)
'96'
proceedings, but of extracts from them, it is not necesD ]·•~-Cha d sary for us to decide the question whether disallowed
"·
~isnn ra
,
b
"d
Ghosh
,quest10ns can e sa1 to form part of the proceedings
v.
of a House of Legislature.
Ha,; Sadhan
In this connection, it is also relevant to note that
Mukherjae
we are concerned in this case with a criminal prosecution for defamation. The law of defamation has been
Sinha C.J.
dealt with in ss. 499 and 500 of the Indian Penal Code.
Section 499 contains a nuμiber of exceptions. Those
specified exceptions lay down what is not defamation.
The fourth exception says that it is not defamation to
publish a substantially true report of the proceedings
of a court of justice, but does not make any such
concession in respect of proceedings of a House of
Legislature or Parliament. The question naturally
a.rises how far the rule in Wason's case (1) can be
applied to criminal prosecutions in India, but a.s this
aspect of the controversy was not canvassed a.t the
Bar, we· need not say anything about it, as it is not
necessary for the decision of this case.
The legal position is undisputed that unless the
appellant can make out a.n absolute privilege, in his
own favour, fa respect of the publication which is the
subject-matter of th~ charge in this case, the prosecution against him cannot be qua.shed. As we have
held, that he has no such absolute privilege, in agreement with the High Court, he must take his trial and
enter upon his defence, such a.s he may have. As the
evidence pro and con has not been recorded in full,
the iirguments a.t the Bar had naturally to be confined
to the purely legal question of the absolute privilege
claimed. It need hardly be· added that we do not
express any opinion on the merits of the controversy
which will now be gone into by the learned Magistrate
before whom the case has been pending a.II these
yea.rs.
For the reasons given above, it must be held that
there is, no mer~t in .this appeal: It is. accordingly
dismissed. The pendmg prosecution, which has been
held up for so long, it is expected, will now be proceeded with without any a.voidable delay.
Appeal diamiaaed,
---
(1) (1868) L.R. 4 Q,B, 13•
/