Supreme Court: A Division Bench of Dr D.Y. Chandrachud and M.R. Shah, JJ. upheld the order of the Chief Judicial Magistrate, Thiruvananthapuram, who refused to consent to the application filed by the Public Prosecutor under Section 321 CrPC for withdrawal of a criminal case filed against six MLAs in relation to the ruckus and damage of public property caused by them in an unfortunate incident that occurred in the Kerala Legislative Assembly in March 2015. Earlier, the Kerala High Court too had affirmed the order of the Chief Judicial Magistrate.
All attempts of the accused MLAs seeking to claim immunity under Article 194 of the Constitution of India were rejected by the Supreme Court while observing:
“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.”
On 13-3-2015, the then Finance Minister of Kerala was presenting budget for financial year 2015-16 in the Kerala Legislative Assembly. The accused─Members of Legislative Assembly (leaders of the Left Democratic Front, which was in opposition at that time) disrupted presentation of the budget, climbed over to 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 Legislative Secretary reported the incident and a criminal case under Sections 447 and 427 read with Section 34 IPC and Section 3(1) of the Prevention of Damage to Public Property Act, 1984 was registered against the six accused MLAs. Investigation was completed, final report was submitted, and cognizance was taken by the Additional Chief Judicial Magistrate, Ernakulam.
On 21-7-2018 (when LDF had formed Government in Kerala), the Public Prosecutor filed an application under Section 321 CrPC seeking sanction to withdraw the case against all the accused MLAs. The case was transferred to the court of Chief Judicial Magistrate, Thiruvananthapuram (“CJM”), who declined to give consent to the Public Prosecutor’s application.
After CJM’s refusal, the State of Kerala filed a criminal revision petition before the Kerala High Court. The High Court dismissed the revision petition and affirmed the order of CJM. Aggrieved, the State of Kerala and the accused MLAs approached the Supreme Court.
Analysis and Observations
Withdrawal from prosecution
Discussing Section 321 CrPC (Withdrawal from prosecution), the Court relied on a catena of judicial precedents including the decision of Constitution Bench in Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288, which the Court dubbed as locus classicus on interpretation of powers conferred by Section 321. The principles which emerged from judicial precedents on withdrawal of prosecution under Section 321 were formulated by the Court:
(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 withdrawal of 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 sub-serves the administration of justice, the court would be justified in scrutinising the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and 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, the Supreme Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Supreme Court may interfere in a case where there has been a failure of the trial judge or of the High Court to apply correct principles in deciding whether to grant or withhold consent.
Immunities and privileges of MLAs
Article 194 of the Constitution of India provides for privileges and immunities of MLAs. Article 194(1) recognises freedom of speech in State legislatures. However, this freedom is subject to provisions of the Constitution and standing orders regulating the procedure of State legislatures. Article 194(2) enunciates a rule of immunity which protects an MLA 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.
As per Article 194(3), the present position is that: (i) 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; (ii) Until such legislation is enacted, the position as it stood immediately before the coming into force of Section 26 of the Constitution (44th Amendment) Act, 1978 would govern. Since the Parliament is yet to enact a law on the subject of parliamentary privileges, according to Article 194(3), the MLAs shall possess privileges that the members of the House of Commons possessed at the time of enactment of the Constitution. In such view of the matter, the Court referred to English judgments on whether criminal offences committed within the precincts of the House of Commons are covered under ‘parliamentary privileges’, receiving immunity from prosecution.
The Court found that even in the United Kingdom, 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’.
In the Indian context, the Court relied on Raja Ram Pal v. Speaker, Lok Sabha, (2007) 3 SCC 184 and noted that the principle which emphatically emerges is that whenever a claim of privilege or immunity is raised in the context of Article 194(3), the Court is entrusted with authority and jurisdiction to determine whether the claim is sustainable on the anvil of the constitutional provision. State legislatures in India cannot 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 emphasises the doctrine of constitutional supremacy in India as distinct from parliamentary supremacy in the UK.
Privilege to commit acts of public destruction – an incongruous proposition
Next, the Court discussed the validity of the argument invoking immunities and privileges under Article 194 as a hypothesis for barring legal proceedings for acts of destruction of public property.
Recapitulating the allegations against the accused MLAs, the Court went on to note that there has been a growing recognition and consensus both in the Court and the Parliament that acts of destruction of public and private property in the name of protests should not be tolerated. The Court observed:
“The persons who have been named as the accused in the FIR in the present 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 Court stated that 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. 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 was observed:
“We miss the wood for the trees if we focus on rights without the corresponding duties cast upon elected public representatives.“
In Court’s opinion, 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 was based on a fundamental misconception of the constitutional provisions contained in Article 194. The Public Prosecutor seemed 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. The Court observed:
“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.“
The Court finally held that 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.
Sanction of Speaker
The Court then dealt with the argument that sanction of the Speaker of the House is required for prosecuting MLAs for occurrences within the precincts of the Assembly. The contention that prosecution against the accused MLAs was vitiated for want of sanction of the Speaker, was rejected by the Court.
Explaining and distinguishing several judgments relied upon by the accused MLAs, the Court noted that none of them lend support to the argument that the sanction of the Speaker ought to have been obtained. The appellants next relied on Section 197 CrPC (Prosecution of Judges and public servants). Section 197(1) 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.
On this, the Court stated that a plain reading of Section 197 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. Further, sanction under Section 197 is only required before cognizance is taken by a court, and not for the initiation of the prosecution.
Claiming privilege and inadmissibility of video recordings as evidence
A video recording of the incident concerned that occurred on 13-3-2015 in the Kerala Legislative Assembly was procured by investigating authorities from the Electronic Control Room of the House.
Immunity from publication of proceedings of the House
The appellants submitted that the incident occurred on floor of the House and was a ‘proceeding’ of the House. According to Article 194(2), no legal proceedings can be initiated against any member in respect of the publication, by or under the authority of the House, of any report, paper, votes or proceedings.
The Court recorded that for the second limb of Article 194(2) to be applicable, three elements must be present: first, there must be 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.
It was discussed by the Court that although broadcasting of proceedings was not initially visualised within the meaning of the word ‘publication’, the meaning of the term ‘publication’ has evolved in contemporary parlance. Broadcasting of proceedings is also a form of publication which serves the purpose of disseminating information to the public.
The Court then turned to the question whether the alleged proceedings were published by or ‘under the authority of the House’. The video recording of the incident was seized from the Electronic Control Room. Various local and national news channels carried telecasts of snippets of the incident of 13-3-2015 on the very same day. The Instructions on Broadcasting and Telecasting of Governor’s Address and Assembly Proceedings issued by the Kerala Legislative Assembly in 2002, permit broadcasting of proceedings after obtaining prior permission of the Speaker for recording. Therefore, if permission for recording the proceedings is provided to news channels, then broadcast would usually be a publication ‘under the authority of the House’. However, Clause 7 of the 2002 Instructions denies permission to record any interruption/disorder during the address.
Since the 2002 Instructions grant permission for recording of proceedings subject to conditions such as that mentioned in Clause 7, any recording that contravenes the conditions stipulated is not a recording ‘under the authority of the House’. The Court observed:
“When the recording of such an incident is itself without authority, the publication/broadcasting of it would also have no authority of the House. Thus, though the video recording of the incident that was broadcast in the local and national news channels would fall within the purview of the word ‘publication’, it did not have the authority of the House to be recorded, and thus the members cannot be granted immunity.“
In addition to this, the video recording that was procured from the Electronic Control Room of the Assembly was 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 broadcast/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.
The Court then considered whether the incident that transpired on 13-3-2015 was a ‘proceeding’ under Article 194(2) bestowing the accused MLAs with absolute immunity. Referring to various provisions of the Constitution, the Court concluded that the word ‘proceedings’ does not include all the activities inside the House within its meaning. 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. The Court was of the opinion that:
“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.“
Accordingly, the Court held that the video recording of the incident was NOT a ‘proceeding’ of the Assembly, which could be protected from legal proceedings under Article 194(2).
Inadmissibility of the video recording as evidence
Appellants argued that the video recording was obtained by investigating authorities without the sanction of the Speaker. It was submitted that the video recording belongs to the Electronic Record Room of the Assembly and as the custodian of the House, permission of the Speaker was necessary to access the video recording. It was also submitted that the video recording lacked certification under Section 65-B of the Evidence Act, 1872 required for admissibility of evidence.
In Court’s opinion, these submissions were irrelevant in an application for withdrawal of prosecution under Section 321 CrPC. Questions of insufficiency of evidence, admissibility of evidence absent certifications, etc. are to be adjudged by the trial court during the stage of trial.
The Supreme Court found no merit in the appeal and held that the Chief Judicial Magistrate was justified in declining consent for withdrawal of the prosecution under Section 321 CrPC. [State of Kerala v. K. Ajith, 2021 SCC OnLine SC 510, decided on 28-7-2021]
Tejaswi Pandit, Senior Editorial Assistant has reported this brief.