Listen to this articleState
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.
FACTS– 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) 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.
ISSUES-
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.