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Act of vandalism is against public interest and unacceptable: SC

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; (Para 4)


Criminal Appeal No 697 of 2021@ SLP (Crl) No 4009 of 2021

And Criminal Appeal No 698 of 2021 @SLP (Crl) No 4481 of 2021

Decided on 28th July 2021

The Supreme Court with bench consisting of Justice Dr Dhananjaya Y Chandrachud and M R Shah dismissed the appeal as it found no merits in the case.

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, 1973 upheld the order of the Chief Judicial Magistrate, Thiruvananthapuram declining to grant permission to the Public Prosecutor to withdraw the prosecution of the first to sixth respondents under Section 321 of the CrPC. (Para 2)

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”. The State of Kerala and the respondent-accused have filed independent SLPs against the order of the High Court before this Court.

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; (Para 4)

The submission by the counsel on behalf of the State of Kerala

The actions of the respondent-accused are a manifestation of their right to protest which is a facet of the freedom of speech and expression. Article 194 of the Constitution provides that no proceedings shall be initiated in the court for the exercise of the freedom of speech by MLAs inside the precincts of the Legislative Assembly. Moreover, these actions took place during the course of the budget presentation and bear a close nexus to the right to vote which is protected under Article 194. Further, the video of the incident of 13 March 2015 that was procured from the Electronic Control Room is a publication of the proceedings of the House. Under Article 194(2), no member shall be held liable in respect of publication of any proceedings inside the House; and

The High Court despite finding that no mala fides can be attributed to the petition for withdrawal initiated by the Public Prosecutor, upheld the order of the CJM declining consent for the withdrawal. By doing so, the High Court has exercised an adjudicatory function, reviewing the grounds provided by the Public Prosecutor as opposed to the established principles laid down in Rajendra Kumar Jain (supra) and Sheonandan Paswan (supra) where it has been held that the court can only exercise a supervisory jurisdiction. (Para 9)

The submission by the counsel on behalf of the respondent-accused:

There is a clear difference in the approach of the majority and the minority judgments in Sheonandan Paswan (supra). The judgments of the majority require the court to determine whether the Public Prosecutor has improperly exercised their powers, interfered with the normal course of justice or exercised powers for illegitimate purposes. The minority cuts down the scope of Section 321 by imposing conditions which are not accepted by the majority opinions. While the majority focusses on the function of the Public Prosecutor, the minority dwelt on the purity of the administration of justice. (Para 10)

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.

Based on the above, it is evident that there has been a growing recognition and consensus both in this Court and Parliament that acts of destruction of public and private property in the name of protests should not be tolerated. Incidentally, the Kerala Legislative Assembly also enacted the Kerala Prevention of Damage to Private Property and Payment of Compensation Act 2019 (Act No. 09 of 2019) to complement the central legislation, Prevention of Damage to Public Property Act 1984, with a special focus on private property. (Para 51)

The oath of office which members of Parliament and of the State Legislature have to subscribe requires them to (i) bear true faith and allegiance to the Constitution of India as by law established; (ii) uphold the sovereignty and integrity of India; and (iii) faithfully discharge the duty upon which they are about to enter. It is to create an environment in which they can perform their functions and discharge their duties freely that the Constitution recognizes privileges and immunities. These privileges bear a functional relationship to the discharge of the functions of a legislator. They are not a mark of status which makes legislators stand on an unequal pedestal. It is of significance that though Article 19(1)(a) expressly recognises the right to freedom of speech and expression as inhering in every citizen, both Articles 105(1) and 194(1) emphasise that “there shall be freedom of speech” in Parliament and in the Legislature of a State.

Accordingly, we reject the submissions of the appellant and hold 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). (Para 82)

We do not believe that this submission is relevant and merits consideration by this Court in an application for withdrawal of prosecution under Section 321 of the CrPC. In our opinion, 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 this Court, in an application under Section 321 of the CrPC, to adjudicate upon evidentiary issues and examine the admissibility or sufficiency of evidence. (Para 84)

For the reasons indicated above, we have arrived at the conclusion that there is no merit in the appeals. The appeals shall accordingly stand dismissed. (Para 85)




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