Kerala Assembly Ruckus Case: Sanction under Section 197 CrPC for prosecution of public servant is only required before cognizance is taken by a court and not for the initiation of the prosecution: SC

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State of Kerala V K Ajith and ors

Criminal Appeal No.697 OF 2021 with SLP (Crl) Nos. 4009, Decided on July 28, 2021

BENCH- Dr DY Chandrachud and M R Shah, JJ.

FACTSOn 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) at that 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/-. Legislative Secretary reported the incident and a criminal case was registered under Sections 447 and 427 read with Section 34 of the Indian Penal Code 1860 and Section 3(1) of the Prevention of Damage to Public Property Act 1984 against the six MLAs. 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. 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, who declined to give consent to the Public Prosecutor’s application.

The present appeals arise out of a judgment of a Single Judge of the High Court of Kerala dated 12 March 2021by which 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 six respondents under Section 321 of the CrPC. The State of Kerala and the respondent (accused) have filed independent SLPs against the order of the High Court before this Court.


1.      What is the position of law on the point of exercising power by the Public Prosecutor under section 321, CrPC and exercising jurisdiction by the Chief Judicial Magistrate?

Held- The Supreme Court held that 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. In furtherance, the Court observed that in granting consent to withdraw a prosecution, the court of CJM exercises a judicial function. However, in doing so, the court need not determine the matter judicially.

The Supreme Court observed that Court only needs to be satisfied that the executive 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 Supreme Court also observed that the Magistrate’s power under Section 321 is to prevent abuse of power of the executive. While addressing the question on the power of the court to grant consent, court observed that it may do so only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain.

2.      Whether invocation of immunities and privileges under Article 194 be validated as a hypothesis for barring legal proceedings for acts of destruction of public property?

Held- The Supreme 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. Acts of destruction of public and private property in the name of protests should not be tolerated. In Supreme 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 Supreme 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.

3.      Whether prior sanction of the Speaker, as the presiding officer of the House, necessary to initiate a prosecution against the members of the House for the commission of an offence inside the House?

Held– The Supreme Court held that a plain reading of Section 197 of the CrPC clarifies that provision 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 Tenth 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.

In opinion of the Supreme Court, the High Court has correctly observed several more 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 the Supreme Court to adjudicate upon evidentiary issues and examine the admissibility or sufficiency of evidence in an application under Section 321 of the CrPC. For the reasons indicated above, the court has arrived at the conclusion that there is no merit in the appeals. The appeals shall accordingly stand dismissed.

Cases referred: Sheonandan Paswan v. State of Bihar(1987) 1 SCC 288, Raja Ram Pal v. Speaker of Lok Sabha(2007) 3 SCC 184.

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