# THE STATE OF KERALA v. K. AJITH & ORS

- **Citation:** [2021] 6 S.C.R. 774
- **Court:** Supreme Court of India
- **Decided:** 2021-07-28
- **Case number:** Criminal Appeal No. 697 of 2021
- **Bench:** Dr. Dhananjaya Y Chandrachud, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-kerala-v-k-ajith-ors-34991
- **Pages:** 76

## Headnote

Code of Criminal Procedure, 1973:
s. 321 - Withdrawal of prosecution - Respondents-MLAs
allegedly disrupted the presentation of the budget by climbing on
to the dais of the Speaker and damaging furniture and articles
causing huge loss - Registration of criminal case at the behest of
the 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 -
Cognizance taken by Chief Judicial Magistrate-CJM upon
submission of the final report u/s 173 CrPC - Application u/s 321
by the public prosecutor seeking sanction to withdraw the case
against the respondents - CJM declined to grant permission to the
public prosecutor to withdraw the prosecution of the respondents
u/s. 321 - High Court upheld the order - On appeal, held: Privileges
and immunities are not gateways to claim exemptions from the general
law of the land, particularly, 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 elected representatives as the makers and enactors of the law -
Withdrawal application is based on a fundamental misconception
of the constitutional provisions contained in Art. 194 - 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,
nor can be equated with the freedom of speech in the legislature,
thus, not covered by the privileges guaranteed under the
Constitution - Allowing the prosecution to be withdrawn would only
show that the elected representatives are exempt from the mandate
of criminal law - Thus, the orders passed by the CJM and the High
Court are upheld - Prevention of Damage to Public Property Act,
1984.
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s. 321 - Withdrawal of prosecution - Exercise of power by
the Public Prosecutor u/s. 321 - Exercise of jurisdiction by the Chief
Judicial Magistrate - General principles - Formulation of.
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 declinin

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[2021] 6 S.C.R.
[2021] 6 S.C.R. 774
774
THE STATE OF KERALA
v.
K. AJITH & ORS.
(Criminal Appeal No. 697 of 2021)
JULY 28, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973:
s. 321 - Withdrawal of prosecution - Respondents-MLAs
allegedly disrupted the presentation of the budget by climbing on
to the dais of the Speaker and damaging furniture and articles
causing huge loss - Registration of criminal case at the behest of
the 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 -
Cognizance taken by Chief Judicial Magistrate-CJM upon
submission of the final report u/s 173 CrPC - Application u/s 321
by the public prosecutor seeking sanction to withdraw the case
against the respondents - CJM declined to grant permission to the
public prosecutor to withdraw the prosecution of the respondents
u/s. 321 - High Court upheld the order - On appeal, held: Privileges
and immunities are not gateways to claim exemptions from the general
law of the land, particularly, 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 elected representatives as the makers and enactors of the law -
Withdrawal application is based on a fundamental misconception
of the constitutional provisions contained in Art. 194 - 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,
nor can be equated with the freedom of speech in the legislature,
thus, not covered by the privileges guaranteed under the
Constitution - Allowing the prosecution to be withdrawn would only
show that the elected representatives are exempt from the mandate
of criminal law - Thus, the orders passed by the CJM and the High
Court are upheld - Prevention of Damage to Public Property Act,
1984.
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s. 321 - Withdrawal of prosecution - Exercise of power by
the Public Prosecutor u/s. 321 - Exercise of jurisdiction by the Chief
Judicial Magistrate - General principles - Formulation of.
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
THE STATE OF KERALA v. K. AJITH & ORS.
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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;
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(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
THE STATE OF KERALA v. K. AJITH & ORS.
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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
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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.
THE STATE OF KERALA v. K. AJITH & ORS.
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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 from 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.
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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.
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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
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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
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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
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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
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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
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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]
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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]
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Sheonandan Paswan vs State of Bihar & Ors. (1987) 1
SCC 288 : [1987] 1 SCR 702 - followed.
Case Law Reference
[1980] 3 SCR 982
referred to
Para 9 (i)
[1972] 2 SCR 599
referred to
Para 15
[1980] 3 SCR 982
referred to
Para 16
[1987] 1 SCR 702
followed
Para 17, 45,
46, 58, 84
[2009] 12 SCR 494
referred to
Para 21
[2014] 8 SCR 328
referred to
Para 22
[1998] 2 SCR 870
referred to
Para 33, 57
[2007] 1 SCR 317
referred to
Para 41
[2014] 3 SCR 242
referred to
Para 43, 55, 57
[2009] 6 SCR 439
referred to
Para 50
[2018] 12 SCR 695
referred to
Para 50
[1957] SCR 279
relied on
Para 58
[1991] 3 SCR 189
referred to
Para 62
(2014) 2 SCC 178
referred to
Para 65
[2010] 3 SCR 1059
referred to
Para 65
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
697 of 2021
From the Judgment and Order dated 12.03.2021 of the High Court
of 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, Rajagopalan
Nair, P. S. Sudheer, Ms. Anne Mathew, Bharat Sood, Ms. Shruti Jose,
Advs. for the petitioner.
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Mahesh 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.
The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into the following sections to
facilitate analysis:
A
Factual Background
B
Submissions of Parties
C
Issues and Analysis
C.1
Withdrawal of prosecution
C.2
Immunities and Privileges of MLAs
C.2.1
Position in the United Kingdom
C.2.2
Position in India
C.3
Privilege to commit acts of public
destruction - An incongruous proposition
C.4
Sanction of Speaker
C.5
Claiming privilege and inadmissibility of
video recordings as evidence
C.5.1
Immunity from publication of proceedings of
the House
C.5.2
Inadmissibility of the video recording as
evidence
A Factual Background
1. Leave granted.
2. The appeals arise out of a judgment of a Single Judge of the
High Court of Kerala dated 12 March 2021. The High Court in the
exercise of its revisional jurisdiction under Section 397 of the Code of
Criminal Procedure, 19731 upheld the order of the Chief Judicial
Magistrate2, Thiruvananthapuram declining to grant permission to the
1 "CrPC"
2 "CJM"
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Public Prosecutor to withdraw the prosecution of the first to sixth
respondents under Section 321 of the CrPC.
3. On 13 March 2015, the then Finance Minister was presenting
the budget for the financial year 2015-2016 in the Kerala Legislative
Assembly. The respondent-accused3, who at the time were Members of
the Legislative Assembly4 belonging to the party in opposition, disrupted
the presentation of the budget, climbed over to the Speaker's dais and
damaged furniture and articles including the Speaker's chair, computer,
mike, emergency lamp and electronic panel, causing a loss of Rs.
2,20,093/-. The incident was reported to the Museum Police Station by
the Legislative Secretary. Crime No. 236 of 2015 was registered under
Sections 447 and 427 read with Section 34 of the Indian Penal Code
18605 and Section 3(1) of the Prevention of Damage to Public Property
Act 1984. On the completion of the investigation, the final report under
Section 173 of the CrPC was submitted and cognizance was taken by
the Additional CJM, Ernakulam of the said offences6.
4. On 21 July 2018, an application7 was filed by the Assistant
Public Prosecutor under Section 321 of the CrPC seeking sanction to
withdraw the case against all the respondent-accused. The Prosecutor
gave the following reasons for withdrawing the prosecution:
(i)
Immunities and privileges: The events transpired during a
session of the Legislative Assembly when certain MLAs
protested against the budget presentation. The 'protest' by
the MLAs is protected by the immunities and privileges
under Article 194(3) of the Constitution of India;
(ii)
Breach of privilege: A violation of the rights and immunities
granted to MLAs is a breach of privilege and the Legislative
Assembly is empowered to punish such actions which are
offences against its authority and of disobedience of its
legitimate commands. A breach of privilege is a contempt
of the House, which falls under the exclusive jurisdiction of
the Speaker of the Assembly;
3 The term "respondent-accused" refers to Respondent Nos 1 to 6 in SLP (Crl) No
4009 of 2021 and the petitioners in SLP (Crl) No 4481 of 2021.
4 "MLA"
5 "IPC"
6 C.C No. 151 of 2018.
7 Crl. MP 2577 of 2019.
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(iii)
Sanction of the Speaker: An offence which is committed in
the Assembly, during a session or in its vicinity by MLAs,
cannot be registered by the police without the permission
of the Speaker. Police officers require authorization from
the 'competent authority' to investigate a breach of law if it
occurs in the precincts of the Legislative Assembly;
(iv)
Public Interest: The freedoms granted to MLAs are
necessary for the functioning of democracy and are subject
to the powers of the Speaker or the criminal courts with
the sanction of the Speaker. The continuance of the trial of
the MLAs absent the sanction of the Speaker lowers the
dignity of the Assembly amongst citizens, thereby affecting
public interest;
(v)
Absence of mens rea: According to the charge sheet, the
incident occurred during a protest by the party in opposition
against the presentation of the budget. Thus, it is difficult to
assess the 'reus' of the offence;
(vi)
Lack of evidence: The statements of witnesses under
Section 161 of the CrPC are vague and there is an absence
of proper identification of the persons involved and their
participation in the commission of the alleged offence. The
Investigating Officer has failed to record the statement of
natural eye witnesses, that is, the MLAs who were present
in the Assembly Hall, despite the permission of the Speaker.
Although this casts a doubt on the nature of the investigation
conducted, it nonetheless indicates that the prosecution has
a remote chance to prove its case;
(vii)
A copy of the video recording of the incident was procured
from the Electronic Control Room of the Legislative
Assembly, without the sanction of the Speaker.