STATE OF KERALA Vs. K. AJITH & ORS. [CRIMINAL APPEAL NO. 697 OF 2021]

DR DHANANJAYA Y CHANDRACHUD, J

28TH JULY 2021

LAW POINT- 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.

BRIEF BACKGROUND

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- accused, who at the time were Members of the Legislative Assembly 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 offences.

On 21 July 2018, an application was filed by the Assistant Public Prosecutor under Section 321 of the Cr.PC seeking sanction to withdraw the case against all the respondent-accused. The case was transferred to the court of the CJM, Thiruvananthapuram. By an order dated 22 September 2020, the CJM declined to give consent to the application of the Prosecutor.

The State of Kerala filed a criminal revision petition before the High Court. The High Court, by its order dated 12 March 2021 dismissed the  petition and affirmed the order of the CJM. The State of Kerala and the respondent-accused have filed independent SLPs against the order of the High Court before the Apex Court.

ISSUE- The question before the Court is centred on the exercise of power by the Public Prosecutor under Section 321 Cr.PC and the exercise  of jurisdiction by the CJM.

ORDER PASSED BY THE COURT OF CHIEF JUDICIAL MAGISTRATE

• Immunity can be claimed by MLAs only in exercise of free speech and voting as held by this Court in P.V. Narasimha Rao vs State. The alleged offence committed by the respondent-accused did not have any nexus with their speech or vote;

• The case against the MLAs was registered at the instance of the Secretary of the Legislative Assembly and thus, it can be assumed that this was within the knowledge of the Speaker of the Assembly. Accordingly, the argument that the case was registered without the permission of the Speaker does not hold ground;

• Although the Government of Kerala had consented to the withdrawal of the prosecution, it is erroneous to suggest that the loss of public property is a loss accruing to the Government. Damage to public property causes a loss to the public exchequer. The alleged offences are of a serious nature; and

• The role of the court under Section 321 is to assess whether the application is made in good faith, in the interests of justice and public policy, and not to stifle the process of law. The application of the Prosecutor fails to inform the court how the withdrawal of prosecution in this case would achieve these objectives.

Thus, it is presumed that the application is filed without good faith and is based on external influence.

ORDER PASSED BY HIGH COURT OF KERELA

The High Court observed that:

• The conduct of the MLAs cannot be deemed to be in furtherance of the functioning of a free democracy, and does not warrant the invocation of the immunities and privileges granted to MLAs;

• There is no provision, either in the Constitution, or in the Rules of Procedure and Conduct of Business in the Kerala Assembly, made pursuant to Article 208(1) of the Constitution, that mandated the police to seek permission or sanction of the Speaker before registering a crime against the MLAs

• Insofar as the prosecution raised arguments regarding inadequacy of evidence for successful conviction of the respondent-accused, the judgment of this Court in Sheonandan Paswan vs State of Bihar & Ors. indicates that such arguments must be raised by the respondent-accused while seeking a discharge before the Magistrate.

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

OBSERVATIONS OF HON’BLE SUPREME COURT

LAW ON WITHDRAWAL OF PROSECUTION

The locus classicus on the interpretation of the powers conferred by Section 321 of the CrPC is the decision of the Constitution Bench in Sheonandan  Paswan  v. State of Bihar. Justice Khalid (speaking for himself and Justice Natarajan) rendered the majority opinion holding that the power of the court to grant consent for a withdrawal petition, is similar to the power under Section 320 of the CrPC to compound offences. The court in both the cases will not have to enquire into the issue of conviction or acquittal of the accused person, and will only need to restrict itself to providing consent through the exercise of jurisdiction in a supervisory manner. It was held that though Section 321 does not provide any grounds for seeking withdrawal, “public policy, interest of administration, inexpediency to proceed with the prosecution for reasons of State, and paucity of evidence” are considered valid grounds for seeking withdrawal. Further, it was held that the court in deciding to grant consent to the withdrawal petition must restrict itself to only determining if the Prosecutor has exercised the power for the above legitimate reasons. All that the court has to see is 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. The court after considering these facets of the case, will have to see whether the application suffers from such improprieties or illegalities as to cause manifest injustice, if consent is given.

The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:

• 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.

• 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.

• The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution.

• 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.

• 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:

• 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.

• 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.

• The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given.

• The grant of consent sub-serves the administration of justice.

• 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.

• 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.

• In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, the 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.

IMMUNITIES AND PRIVILEGES OF MLAS

Articles 105 and 194 of the Constitution provide in similar terms for the privileges and immunities of Members of Parliament and MLAs respectively.

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 Forty- Fourth 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.

POSITION IN INDIA

The immunity available to the MPs under Article 105(2) (similar to Article 194(2) of the Constitution in case of MLAs) became the subject matter of the decision of the Constitution Bench in P. V. Narasimha Rao (supra). Before the Constitution Bench, a question was raised as to whether the legal proceedings against the said MPs would be protected under the privileges and immunities granted under Article 105(3) of the Constitution “in respect of anything said or any vote given” by an MP. The Court observed that the expression “in respect of” under Article 105(2) must receive a broad meaning and Article 105(2) protects an MP against proceedings in court “that relate to, or concern, or have a connection or nexus with anything said or a vote given, by him in Parliament. The alleged conspiracy and bribe had a nexus to and were in respect of those votes and that the proposed inquiry in the criminal proceedings was in regard to their votes in the motion of no-confidence.

The next judgment which is of significance in the evolution of this body of law is the decision of the Constitution Bench in Raja Ram Pal vs  Hon’ble Speaker, Lok  Sabha. The principle which emphatically emerges from this judgment  is  that  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. The Constitution Bench held that neither Parliament  nor  the  State legislatures in India can assert this power. The decision therefore emphasizes  the doctrine of constitutional supremacy  in  India  as  distinct  from  parliamentary supremacy in the UK.

In approaching this 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 (supra).

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 reliance placed by the appellants on P.V Narasimha Rao (supra) 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  (supra)  dealt  with  the interpretation of the phrase ‘in respect of’ and gave it a wide import.

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.

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 present 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. 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

SANCTION OF SPEAKER

The appellants have relied on P.V. Narasimha Rao (supra) to argue that the prior sanction of the Speaker, as the presiding officer of the House, is necessary to initiate a prosecution against the members of the House for the commission of an offence inside the House. The Court in PV Narasimha Rao (supra) distinguished the instance of a criminal charge instituted against an MP from that instituted against a member of the judiciary. It held that it  is important that the sanction of the Chief Justice of India is required before the initiation of a complaint against a judge to safeguard the independence of the judiciary, and that the position of an MP is not akin to the position of a judge

The appellants have further relied on Section 197(1) of the CrPC in support of their submission for requiring a prior  sanction  of  the  Speaker  for  prosecuting  MLAs/MPs for offences committed within the  House. 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 X 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.

INADMISSIBILITY OF VIDEO RECORDINGS AS EVIDENCE

The withdrawal petition filed by the Public Prosecutor,  states  that  the  video  footage was obtained without the consent of the Speaker of the House  and  thus  lacks certification under Section 65B of the Indian Evidence Act 1872.

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. As held by the Constitution Bench of this Court in Sheonandan Paswan (supra), it is not the duty of the Court, in an application under Section 321 of the CrPC, to adjudicate upon evidentiary issues and examine the admissibility or sufficiency of evidence.

IMMUNITY FROM PUBLICATION OF PROCEEDINGS OF THE HOUSE

Appellants sought to take recourse of the second limb of Article 194(2), to claim that legal proceedings are barred against respondent-accused for the incident, as it allegedly formed part of the ‘proceedings’ of the House, which were published under the authority of the House.

For the second limb of Article 194(2)  to  be  applicable, the  following three elements must  be  present-  first, there  must  be  a publication; second, the  publication  must  be by or under the authority of the House; and third, the publication  must  relate  to  a report, paper, vote or proceedings

The video recording that was procured from the Electronic Control Room of the Assembly is not a copy of the broadcast of the incident in the local or national television but was a part of the internal records of the Assembly. Thus, the stored video footage of the incident was not published, for dissemination to the public. Since it was not a “publication” of the House, it does not enjoy the protection of immunity under Article 194(2) of the Constitution. In both Articles 194(4) and 212(1) it is evident that the word ‘proceedings’ does not include all the activities inside the House within its meaning.

On application of the interpretative principle of noscitur a sociis, the phrase ‘proceedings’ takes color 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.

Accordingly, the video recording of the incident was not a “proceeding” of the Assembly, which would be protected  from  legal  proceedings  under  Article 194(2).

DECISION

There is no merit in the appeals. The appeals shall accordingly stand dismissed.