Holding

The alleged acts of destruction of public property by the MLAs are not covered by parliamentary privilege, and the application for withdrawal of prosecution under Section 321 CrPC was rightly declined.

Summary

During the 2015 Kerala budget presentation, several opposition MLAs climbed onto the Speaker's dais and damaged furniture, leading to a criminal case under IPC sections 427, 447, 34 and the Prevention of Damage to Public Property Act, 1984. The public prosecutor sought to withdraw the prosecution under Section 321 of the CrPC, invoking parliamentary privilege, the need for the Speaker's sanction, and alleged evidentiary deficiencies. The Chief Judicial Magistrate and the Kerala High Court refused consent, holding that the alleged vandalism was not part of the legislators' essential functions and thus not protected by Article 194. On appeal, the Supreme Court affirmed that parliamentary privilege does not shield criminal conduct such as destruction of public property, that no statutory sanction from the Speaker is required, and that the court's role in a Section 321 application is limited to ensuring the prosecutor’s independent, good‑faith judgment and public‑interest considerations. Consequently, the Court dismissed the appeals, upholding the lower courts' refusal to allow withdrawal of the prosecution.

Issues considered

The applicability of parliamentary privilege under Article 194 to acts of vandalism by MLAs inside the legislative assembly.
Whether the Speaker's prior sanction is required to prosecute MLAs for offences committed within the Assembly.
The proper exercise of the court's discretion under Section 321 CrPC in granting or refusing consent to withdraw prosecution.
The relevance of the video recording and its admissibility in the context of a Section 321 application.

Legislation cited

Code of Criminal Procedure, 1973s. 173, s. 197(1), s. 321, s. 34
Constitution of Indias. Article 105, s. Article 136, s. Article 194, s. Article 197(1)
Indian Evidence Act, 1872s. 65B
Indian Penal Code, 1860s. 34, s. 425, s. 427, s. 447
Prevention of Corruption Act, 1988s. 19
Prevention of Damage to Public Property Act, 1984s. 3(1)

Subjects

parliamentary privilegeSection 321 CrPCwithdrawal of prosecutionMLA immunityArticle 194public property damagespeaker sanctionevidence admissibilityconstitutional law

Judgment

774 [2021]REPORTS
SUPREME COURT 6 S.C.R. 774 [2021] 6 S.C.R.

A THE STATE OF KERALA
v.
K. AJITH & ORS.
(Criminal Appeal No. 697 of 2021)
B JULY 28, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973:
C s. 321 – Withdrawal of prosecution – Respondents-MLAs
allegedly disrupted the presentation of the budget by climbing on
to the dais of the Speaker and damaging furniture and articles
causing huge loss – Registration of criminal case at the behest of
the Legislative Secretary u/ss. 447 and 427 r/w s. 34 IPC and s.
3(1) of the Prevention of Damage to Public Property Act, 1984 –
D
Cognizance taken by Chief Judicial Magistrate-CJM upon
submission of the final report u/s 173 CrPC – Application u/s 321
by the public prosecutor seeking sanction to withdraw the case
against the respondents – CJM declined to grant permission to the
public prosecutor to withdraw the prosecution of the respondents
E u/s. 321 – High Court upheld the order – On appeal, held: Privileges
and immunities are not gateways to claim exemptions from the general
law of the land, particularly, 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 elected representatives as the makers and enactors of the law –
F Withdrawal application is based on a fundamental misconception
of the constitutional provisions contained in Art. 194 – 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,
G nor can be equated with the freedom of speech in the legislature,
thus, not covered by the privileges guaranteed under the
Constitution – Allowing the prosecution to be withdrawn would only
show that the elected representatives are exempt from the mandate
of criminal law – Thus, the orders passed by the CJM and the High
Court are upheld – Prevention of Damage to Public Property Act,
H 1984.
774
THE STATE OF KERALA v. K. AJITH & ORS. 775

s. 321 – Withdrawal of prosecution – Exercise of power by A
the Public Prosecutor u/s. 321 – Exercise of jurisdiction by the Chief
Judicial Magistrate – General principles – Formulation of.
s. 321 – Matter pertaining to declining of application for
withdrawal made by the public prosecutor u/s. 321 CrPC by Chief
Judicial Magistrate and the High Court – Plea that the video B
recording of the incident was procured from the Electronic Record
Room of Assembly without the permission of the Speaker; and that
the video recording lacks the certification required for admissibility
of evidence – Held: Questions of 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 this Court, in an application u/s. C
321 to adjudicate upon evidentiary issues and examine the
admissibility or sufficiency of evidence – Evidence Act, 1872 – s.
65B.
s. 197(1) – Sanction of speaker for prosecution against
accused-MLAs – Requirement of – Held: No provisions warranting D
the sanction of the speaker to initiate criminal prosecution either
specific to offence or specific to class – Thus, on facts, prosecution
against accused not vitiated for want of sanction.
Constitution of India:
E
Arts. 105 and 194 – Privileges and immunities of Members of
Parliament and MLAs – Interpretation – Scope of – Explained.
Art. 194 – Powers, privileges, etc, of the House of Legislatures
and of the members and committees thereof – Parliamentary
proceedings – Immunity from publication of proceedings of the F
House – Held: Parliamentary proceedings does not include all
activities inside the house – It is only limited to essential functions
of members in their official capacity for participation and
deliberation in the house – Act of destruction and vandalism not
manifestation of freedom of speech and cannot be termed as
proceedings of the assembly – Thus, video recording of the incident G
was not a “proceeding” of the Assembly, which would be protected
from legal proceedings u/Art.194(2).
Art. 136 – Jurisdiction under – Exercise of – Matter pertaining
to declining of application for withdrawal made by the public
prosecutor u/s. 321 CrPC by Chief Judicial Magistrate and the High H
776 SUPREME COURT REPORTS [2021] 6 S.C.R.

A Court – Interference with – Held: Court not to embark upon a roving
enquiry into the facts and evidence of case like this – Interference
warranted when findings suffer from a palpable error or perversity.
Parliamentary privileges: Nature of the privileges and
immunities enjoyed by members of the House of Commons in the
B United Kingdom – Evolution of, through various phases –
Jurisprudential development – Discussed.
Dismissing the appeals, the Court
HELD: 1. The principles which emerge on the withdrawal
of a prosecution under Section 321 of the Code of Criminal
C Procedure, 1973 are:
(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;

D (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;
E
(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 the
withdrawal of the prosecution is necessary for good and relevant
F
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:
G
(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;

H
THE STATE OF KERALA v. K. AJITH & ORS. 777

(b) The application has been made in good faith, in the A
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; B
(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; C

(vi) 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 D
implicated; and
(vii) In a situation where both the trial judge and the
revisional court have concurred in granting or refusing consent,
this Court while exercising its jurisdiction under Article 136 of
the Constitution would exercise caution before disturbing E
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. [Para 23][811-E-H; 812-A-H] F
Sheonandan Paswan vs State of Bihar & Ors. (1987) 1
SCC 288 : [1987] 1 SCR 702 – followed.
State of Bihar vs Ram Naresh Pandey & Anr. AIR 1957
SC 389 : [1957] SCR 279; M.N Sankarayaraynan Nair
vs P.V Balakrishnan (1972) 1 SCC 318 : [1972] 2 SCR G
599; Rajender Kumar Jain vs State through Special
Police Establishment and Ors. (1980) 3 SCC 435 :
[1980] 3 SCR 982; Yerneni Raja Ramchandar vs State

H
778 SUPREME COURT REPORTS [2021] 6 S.C.R.

A of Andhra Pradesh & Ors. (2009) 15 SCC 604 : [2009]
12 SCR 494; Bairam Muralidhar vs State of Andhra
Pradesh (2014) 10 SCC 380 : [2014] 8 SCR 328
– referred to.
2.1 Articles 105 and 194 of the Constitution provide in
B similar terms for the privileges and immunities of Members of
Parliament and MLAs respectively. [Para 24][813-A-B]
2.2 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
C 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
D 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
E 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. [Para 25][813-G-H; 814-A-C]

F 2.3 At the time of the adoption of the Constitution, clause 3
of Article 194 provided that the privileges, immunities and powers
of a House of the Legislature of a State (and of its members and
committees) shall be such as may from time to time be defined
by the legislature by law, and until so defined, shall be those of
the House of Commons of the Parliament of the United Kingdom
G at the commencement of the Constitution. By Section 34 of the
Forty-Second Amendment to the Constitution, clause (3) of
Article 194 was amended and embodied a transitory provision
under which until the powers, privileges and immunities of a

H
THE STATE OF KERALA v. K. AJITH & ORS. 779

House of the legislature of a State (and of the members and its A
committees) were defined by a law made by the legislature, they
shall be those of the British House of Commons and the privileges
of each House “shall be such as may from time to time be evolved
by such House”. However, Section 34 was not brought into force
by issuing a notification under Section 1(2) of the Constitution
B
(Forty-Second) Amendment Act 1976. Eventually, clause (3) in
its present form was substituted by Section 26 of the Constitution
(Forty-Fourth) Amendment Act 1978 with effect from 20 June
1979. The present position of clause (3) is that: the ultimate
source of the powers, privileges and immunities of a House of a
State Legislature and of the members and committees would be C
determined by way of a legislation; until such legislation is
enacted, the position as it stood immediately before the coming
into force of Section 26 of the Forty-Fourth Amendment Act 1978
would govern; and the amendment to the Constitution introducing
the concept of evolution of privileges and immunities by the House
D
of the legislature never came into force and now stands deleted.
Since the Parliament is yet to enact a law on the subject of
parliamentary privileges, according to Article 194(3) of the
Constitution, the MLAs shall possess privileges that the
members of the House of Commons possessed at the time of
enactment of the Constitution. [Para 26, 29][814-C-G; 817-C] E
2.4 It is evident that 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. F
[Para 32][819-F-G]
R vs Eliot, Holles and Valentine (1629) 3 St Tr 292-
336; Raja Ram Pal vs Hon’ble Speaker, Lok Sabha
(2007) 3 SCC 184:[2007] 1 SCR 317; Bradlaugh vs
Gossett [1884] EWHC 1 (QB); R vs Chaytor and others G
[2010] UKSC 52 – referred to.
Erskine May, Parliamentary Practice, Chapter 17,
Page 281 (24th Ed., Lexis Nexis, 2011); Sir Edward
Coke, Fourth Part Of The Institutes of the Laws of
England 14 (1797) – referred to. H
780 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 3. 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. Neither Parliament nor the State legislatures in India
can assert the power of “self-composition or in other words the
B
power to regulate their own constitution in the manner claimed
by the House of Commons or in the UK”. The decision therefore
emphasizes the doctrine of constitutional supremacy in India
as distinct f rom parliamentary supremacy in the UK.
[Para 42][824-G-H; 825-AB]
C Raja Ram Pal vs Hon’ble Speaker, Lok Sabha (2007) 3
SCC 184 : [2007] 1 SCR 317 – followed.
P.V. Narasimha Rao vs State (CBI/SPE) etc AIR 1998
SC 2120 : [1998] 2 SCR 870; Lokayukta, Justice
Ripusudan Dayal (Retired) and Ors. vs State of Madhya
D Pradesh & Ors. (2014) 4 SCC 473 : [2014] 3 SCR 242
– referred to.
4. In approaching the 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
E of the majority in the Constitution Bench decision in Sheonandan
Paswan’s case. The Court noted that it had been “the declared
policy of this Court not to embark upon a roving enquiry into the
facts and evidence of case like this”, particularly because any
observation on merits or facts and evidence will cause serious
F prejudice to parties at trial. Hence, in approaching the
submissions of the counsel, it is necessary to begin with a caution
and caveat that in evaluating them the Court must not transcend
the limits of its jurisdiction under Article 136. Both the CJM and
the High Court have come to the conclusion that the application
for withdrawal made by the public prosecutor under Section 321
G should not be allowed. The issue is whether these findings suffer
from a palpable error or perversity which would warrant
interference by this Court. [Para 45][823-B-F]
Sheonandan Paswan vs State of Bihar & Ors. (1987) 1
SCC 288 : [1987] 1 SCR 702 – followed.
H
THE STATE OF KERALA v. K. AJITH & ORS. 781

5.1 The conclusion of the High Court to affirm the decision A
of the CJM must be analysed from prism of the law as it has been
enunciated consistently in several decisions before and after the
judgment of the Constitution Bench and of course, in the decision
in Sheonandan Paswan’s case. The second aspect which must be
borne in mind is that the High Court has accepted the fact that
B
no mala fides can be attributed to the application for withdrawal.
It is to be considered whether this is a circumstance which in and
of itself should have resulted in allowing the application for the
grant of permission for withdrawal of the prosecution under
Section 321. The issue on this aspect of the case is whether a
finding that there is no absence of good faith must inexorably C
result in allowing an application under Section 321 bereft of the
other considerations which must underlie such a decision.
[Para 46][827-A-C]
Sheonandan Paswan vs State of Bihar & Ors. (1987) 1
SCC 288 : [1987] 1 SCR 702 – followed. D
5.2 The persons who have been named as the accused in
the FIR in the instant 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 E
either a privilege or an immunity to stand above the sanctions of
the criminal law, which applies equally to all citizens. The purpose
and object of the Prevention of Damage to Public Property Act
1984 was to curb acts of vandalism and damage to public property
including (but not limited to) destruction and damage caused
during riots and public protests. [Para 52][831-E-G] F

Re: Destruction of Public and Private Properties 2009
5 SCC 212 : [2009] 6 SCR 439; Kodungallur Film
Society and Another vs Union of India 2018 10 SCC
713 : [2018] 12 SCR 695 – referred to.
G
5.3 A member of the legislature, the opposition included,
has a right to protest on the floor of the legislature. The right to
do so is implicit in Article 105(1) in its application to Parliament
and Article 194(1) in its application to the State Legislatures.

H
782 SUPREME COURT REPORTS [2021] 6 S.C.R.

A The first clauses of both these Articles contain a mandate that
“there shall be freedom of speech” in Parliament and in the
legislature of every State. Nonetheless, the freedom of speech
which is protected by the first clause is subject to the provisions
of the Constitution and to the rules and standing orders regulating
the procedure of the legislature. The second clause provides
B
immunity against liability “to any proceedings in any court” in
respect of “anything said or any vote given” in the legislature or
any committee. Moreover, no person is to be liable in respect of
the publication by or under the authority of Parliament or of the
House of the State Legislature of any report, paper, votes or
C proceedings. The history of Clause (3) of Article 194 as it originally
stood under which the powers, privileges and immunities of the
members of Parliament and of the State Legislatures were those
which were recognised for Members of the House of Commons
immediately before the enforcement of the Constitution. This
provision was sought to be amended by the Forty Second
D
Amendment and was ultimately amended by the Forty Fourth
Amendment, from which it derives its present form. It recognises
the powers, privilege and immunities as they stood immediately
before the enforcement of Section 26 of the Forty Fourth
Amendment. [Para 53][831-G-H; 832-A-D]
E 5.4 Tracing the history of the privileges and immunities
enjoyed by members of the House of Commons, Erskine May
makes a doctrinal division of the position in the UK into various
phases. However, the stand out feature which emerges from the
privileges and immunities of the members of the House of
F Commons is the absence of an immunity from the application of
criminal law. [Para 54][832-D-F]
5.5 There is a valid rationale for this position. The purpose
of bestowing privileges and immunities to elected members of
the legislature is to enable them to perform their functions without
G hindrance, fear or favour. 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

H
THE STATE OF KERALA v. K. AJITH & ORS. 783

the duty upon which they are about to enter. It is to create an A
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
B
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. In essence, Article
19(1)(a) recognizes an individual right to the freedom of speech C
and expression as vested in all citizens. Articles 105(1) and 194(1)
speak about the freedom of speech in the Parliament and State
Legislatures and in that context must necessarily encompass the
creation of an environment in which free speech can be exercised
within their precincts. The recognition that there shall be freedom
D
of speech in Parliament and the State Legislatures underlines
the need to ensure the existence of conditions in which elected
representatives can perform their duties and functions effectively.
Those duties and functions are as much a matter of duty and trust
as they are of a right inhering in the representatives who are
chosen by the people. [Para 55][832-F-H; 833-A-D] E
R vs Eliot, Holles and Valentine (1629) 3 St Tr 292-
336; Bradlaugh vs Gossett [1884] EWHC 1 (QB); R vs
Chaytor and others [2010] UKSC 52 – referred to.
5.6 Privileges and immunities are not gateways to claim
exemptions from the general law of the land, particularly as in F
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 entire foundation upon which the application for G
withdrawal under Section 321 was moved by the Public Prosecutor
is based on a fundamental misconception of the constitutional
provisions contained in Article 194. The Public Prosecutor seems
to have been impressed by the existence of privileges and

H
784 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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.
[Para 56][833-D-G]
B 5.7 The reliance on P.V Narasimha Rao’s case 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’s case dealt with the interpretation
of the phrase ‘in respect of’ and gave it a wide import. At the
C same time, the majority observed that there must be a nexus
between the act or incident (which in that case was the act of
bribery in the context of the votes cast on a motion of no-
confidence) and the freedom of speech or to vote, which bore a
close nexus to the freedom protected under Article 105(2). The
D case however, did not deal with the ambit of the privilege of
‘freedom of speech’ provided to the members of the House. It
was in Lokayukta, Justice Ripusudan Dayal (Retired)’s case that a
three judge Bench of this Court laid down the law for the
identification of the content of the privileges. It was held that the
members shall only possess such privileges that are essential
E for undertaking their legislative functions. 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
F line of constitutional means, and is thus not covered by
the privileges guaranteed under the Constitution. [Para 57]
[833-G-H; 834-A-D]
P.V. Narasimha Rao vs State (CBI/SPE) etc AIR 1998
SC 2120 : [1998] 2 SCR 870; Lokayukta, Justice
G Ripusudan Dayal (Retired) and Ors. vs State of Madhya
Pradesh & Ors. (2014) 4 SCC 473 : [2014] 3 SCR 242
– referred to.
5.8 The true function of the court when an application under
Section 321 is filed is to ensure that the executive function of the
H
THE STATE OF KERALA v. K. AJITH & ORS. 785

public prosecutor has not been improperly exercised or that it is A
not an attempt to interfere with the normal course of justice for
illegitimate reasons or purposes. The court will grant its consent
if it is satisfied that it sub-serves the administration of justice
and the purpose of seeking it is not extraneous to the vindication
of the law. It is the broad ends of public justice that must guide
B
the decision. The public prosecutor is duty bound to act
independently and ensure that they have applied their minds to
the essential purpose which governs the exercise of the powers.
Whether the public prosecutor has acted in good faith is not in
itself dispositive of the issue as to whether consent should be
given. The court must scrutinize “whether the application is made C
in good faith, in the interest of public policy and justice and not to
thwart or stifle the process of law”. Good faith is one and not the
only consideration. The court must also scrutinize whether an
application suffers from such improprieties or illegalities as to
cause manifest injustice if consent is given. [Para 58][834-D-H]
D
Sheonandan Paswan vs State of Bihar & Ors. (1987) 1
SCC 288 : [1987] 1 SCR 702 – followed.
State of Bihar vs Ram Naresh Pandey & Anr. AIR 1957
SC 389 : [1957] SCR 279 – relied on.
5.9 On the touchstone of these principles, there can be no E
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 F
are stated to have been committed in the instant 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. To allow the
prosecution to be withdrawn in the face of these allegations, in G
respect of which upon investigation a final report has been
submitted under Section 173 of the CrPC and cognizance has
been taken, would amount to an interference with the normal
course of justice for illegitimate reasons. Such an action is clearly
H
786 SUPREME COURT REPORTS [2021] 6 S.C.R.

A extraneous to the vindication of the law to which all organs of the
executive are bound. 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.
The members of the State Legislature have in their character as
B
elected representatives a public trust impressed upon the
discharge of their duties. Allowing the prosecution to be
withdrawn would only result in a singular result, which is that the
elected representatives are exempt from the mandate of criminal
law. This cannot be countenanced as being in aid of the broad
C ends of public justice. [Para 59][835-A-E]
6. Section 197(1) of the CrPC 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.A plain reading of
D 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 Xth Schedule of the Constitution for
E 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.The
submission that the prosecution against the respondent-accused
is vitiated for want of sanction of the Speaker is rejected.
F [Para 63-65][838-F-G; 839-B-C; 840-E-F]
P.V. Narasimha Rao vs State (CBI/SPE) etc AIR 1998
SC 2120 : [1998] 2 SCR 870 ; K. Veeraswami vs Union
of India (1991) 3 SCC 655 : [1991] 3 SCR 189 ; Satish
Chandra vs Speaker, Lok Sabha (2014) 2 SCC 178;
G Ramdas Athawale (5) vs Union of India (2010) 4 SCC
1 : [2010] 3 SCR 1059; Attorney General of Ceylon vs
de Livera [1963] AC 103 – referred to.
7.1 Article 194(2) is divided into two limbs. The first limb
of Article 194(2) which provides the members absolute immunity
H
THE STATE OF KERALA v. K. AJITH & ORS. 787

with respect of anything said or any vote given in the House is a A
manifestation of the freedom of speech provided under Article
194(1). The second limb of Article 194(2) gives the members
immunity in respect of the publication of ‘any report, paper, votes,
or proceedings’ by or under the authority of the house. The legal
immunity to ‘anything said or any vote given’ in the first limb and
B
the ‘publication of a report, paper, votes, or proceedings’ in the
second limb of Article 194(2), flow from the freedom of speech
that is provided under Article 194(1). The exercise of these
manifestations of the freedom of speech – as provided in Article
194(2) – has been provided with express immunity. However,
the only difference between the two limbs of Article 194(2) is C
that the first limb protects the exercise of the freedom, and the
second limb protects the member against the publication of the
said exercise of the freedom. The legal proceedings against the
exercise of the freedom can only be initiated by those aware of
the exercise of freedom, which would mean either those who are
D
present in the House or those who become aware of it when the
speech, vote or the like, is published. While the freedoms
protected by both the limbs are substantively the same, the
second limb is clarificatory in the sense that it prevents ‘any
person’ from initiating proceedings against the exercise of
freedom of speech inside the House when they obtain knowledge E
of the exercise of the said freedom through a publication. Thus,
the immunity provided for the exercise of the manifestations of
the freedom of speech in the second limb of under Article 194(2)
cannot exceed the freedom of speech provided in the first limb
of Article 194(2). That acts of destruction of public property are
F
not privileged under the first limb of Article 194(2). Consequently,
acts of vandalism cannot be said to be manifestations of the
freedom of speech and be termed as “proceedings” of the
Assembly. It was not the intention of the drafters of the
Constitution to extend the interpretation of ‘freedom of speech’
to include criminal acts by placing them under a veil of protest. G
Hence, the Constitution only grants the members the freedom
of speech that is necessary for their active participation in
meaningful deliberation without any fear of prosecution.
[Para 80][848-A-G]
H
788 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 7.2 Moreover, 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. These are essential functions that a member has
to perform in order to discharge her duty to the public as their
B
elected representative. 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
C functions, the meaning of the word ‘proceedings’ must also be
restricted to only include such actions.The submissions of the
appellant are rejected and it is held 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).
[Paras 81, 82][848-G-H; 849-A-C]
D
P.V. Narasimha Rao vs State (CBI/SPE) etc AIR 1998
SC 2120 : [1998] 2 SCR 870 – referred to.
R vs Chaytor and others [2010] UKSC 52;Attorney
General of Ceylon vs de Livera [1963] AC 103
E – referred to.
7.3 The submission that the video recording was not
obtained by the investigating authorities with the sanction of the
Speaker; that the video recording belongs to the Electronic
Record Room of Assembly and as the custodian of the House,
F the permission of the Speaker is necessary to access this video
recording; and that the video recording lacks the certification
required for admissibility of evidence is not relevant and does
not merit consideration by this Court in an application for
withdrawal of prosecution under Section 321 of the CrPC. The
High Court has correctly observed that questions of insufficiency
G 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 this Court, in an application under Section 321 of
the CrPC, to adjudicate upon evidentiary issues and examine
the admissibility or sufficiency of evidence. [Paras 83, 84]
H [849-D-F]
THE STATE OF KERALA v. K. AJITH & ORS. 789

Sheonandan Paswan vs State of Bihar & Ors. (1987) 1 A
SCC 288 : [1987] 1 SCR 702 – followed.
Case Law Reference
[1980] 3 SCR 982 referred to Para 9 (i)
[1972] 2 SCR 599 referred to Para 15 B
[1980] 3 SCR 982 referred to Para 16
[1987] 1 SCR 702 followed Para 17, 45,
46, 58, 84
[2009] 12 SCR 494 referred to Para 21
C
[2014] 8 SCR 328 referred to Para 22
[1998] 2 SCR 870 referred to Para 33, 57
[2007] 1 SCR 317 referred to Para 41
[2014] 3 SCR 242 referred to Para 43, 55, 57 D
[2009] 6 SCR 439 referred to Para 50
[2018] 12 SCR 695 referred to Para 50
[1957] SCR 279 relied on Para 58
[1991] 3 SCR 189 referred to Para 62 E
(2014) 2 SCC 178 referred to Para 65
[2010] 3 SCR 1059 referred to Para 65
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
697 of 2021 F
From the Judgment and Order dated 12.03.2021 of the High Court
of Kerala at Ernakulam in Crl. Revision Petition No.641 of 2020.
With
Criminal Appeal No.698 of 2021
G
K. Gopalakrishna Kurup, Adv. Gen, Ranjit Kumar, Jaideep Gupta,
Sr. Advs., P. Narayanan, Manu V., Jishnu M. L., G. Prakash, Rajagopalan
Nair, P. S. Sudheer, Ms. Anne Mathew, Bharat Sood, Ms. Shruti Jose,
Advs. for the petitioner.
H
790 SUPREME COURT REPORTS [2021] 6 S.C.R.

A Mahesh Jethmalani, V. Chitambares, Sr. Advs., Ravi Sharma,
Shoumendu Mukherji, Nachiketa Joshi, Ms. Bharti Tyagi, Mukul Singh,
Praneet Pranav, Amit Sharma, Bhaskar Gowtham, Ms. Gunjan Mangla,
Ms. Megha Sharma, R. V. Sreejith, Suvin R. Menon, Sayuj Mohandas,
Ramesh Babu M. R., T. Asaf Ali, Advs. for the Respondent.
B The Judgment of the Court was delivered by
DR. DHANANJAYA Y CHANDRACHUD, J.
This judgment has been divided into the following sections to
facilitate analysis:
A Factual Background
C B Submissions of Parties
C Issues and Analysis
C.1 Withdrawal of prosecution
C.2 Immunities and Privileges of MLAs
D C.2.1 Position in the United Kingdom
C.2.2 Position in India
C.3 Privilege to commit acts of public
destruction – An incongruous proposition
C.4 Sanction of Speaker
E
C.5 Claiming privilege and inadmissibility of
video recordings as evidence
C.5.1 Immunity from publication of proceedings of
the House
F C.5.2 Inadmissibility of the video recording as
evidence
A Factual Background
1. Leave granted.
2. The appeals arise out of a judgment of a Single Judge of the
G 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 1 upheld the order of the Chief Judicial
Magistrate2, Thiruvananthapuram declining to grant permission to the
1
“CrPC”
2
H “CJM”
THE STATE OF KERALA v. K. AJITH & ORS. 791
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Public Prosecutor to withdraw the prosecution of the first to sixth A
respondents under Section 321 of the CrPC.
3. 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-accused3, who at the time were Members of
the Legislative Assembly4 belonging to the party in opposition, disrupted B
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 C
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 offences6.
4. On 21 July 2018, an application7 was filed by the Assistant D
Public Prosecutor under Section 321 of the CrPC seeking sanction to
withdraw the case against all the respondent-accused. The Prosecutor
gave the following reasons for withdrawing the prosecution:
(i) Immunities and privileges: The events transpired during a
session of the Legislative Assembly when certain MLAs E
protested against the budget presentation. The ‘protest’ by
the MLAs is protected by the immunities and privileges
under Article 194(3) of the Constitution of India;
(ii) Breach of privilege: A violation of the rights and immunities
granted to MLAs is a breach of privilege and the Legislative F
Assembly is empowered to punish such actions which are
offences against its authority and of disobedience of its
legitimate commands. A breach of privilege is a contempt
of the House, which falls under the exclusive jurisdiction of
the Speaker of the Assembly; G
3
The term “respondent-accused” refers to Respondent Nos 1 to 6 in SLP (Crl) No
4009 of 2021 and the petitioners in SLP (Crl) No 4481 of 2021.
4
“MLA”
5
“IPC”
6
C.C No. 151 of 2018.
7
Crl. MP 2577 of 2019. H
792 SUPREME COURT REPORTS [2021] 6 S.C.R.

A (iii) Sanction of the Speaker: An offence which is committed in
the Assembly, during a session or in its vicinity by MLAs,
cannot be registered by the police without the permission
of the Speaker. Police officers require authorization from
the ‘competent authority’ to investigate a breach of law if it
occurs in the precincts of the Legislative Assembly;
B
(iv) Public Interest: 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
C dignity of the Assembly amongst citizens, thereby affecting
public interest;
(v) Absence of mens rea: According to the charge sheet, the
incident occurred during a protest by the party in opposition
against the presentation of the budget. Thus, it is difficult to
D assess the ‘reus’ of the offence;
(vi) Lack of evidence: The statements of witnesses under
Section 161 of the CrPC are vague and there is an absence
of proper identification of the persons involved and their
participation in the commission of the alleged offence. The
E Investigating Officer has failed to record the statement of
natural eye witnesses, that is, the MLAs who were present
in the Assembly Hall, despite the permission of the Speaker.
Although this casts a doubt on the nature of the investigation
conducted, it nonetheless indicates that the prosecution has
a remote chance to prove its case;
F
(vii) A copy of the video recording of the incident was procured
from the Electronic Control Room of the Legislative
Assembly, without the sanction of the Speaker. The video
footage lacks certification under Section 65B of the Indian
Evidence Act 1872 and the admissibility of this evidence
G would be under challenge in the trial; and
(viii) The Government of Kerala, which owned the property that
was destroyed, had by an order dated 9 February 2018
consented to the withdrawal of the prosecution and hence,
the ‘larger public interest’ would be served if the case is
H withdrawn early.
THE STATE OF KERALA v. K. AJITH & ORS. 793
[DR. DHANANJAYA Y CHANDRACHUD, J.]

5. The case was transferred to the court of the CJM, A
Thiruvananthapuram8. By an order dated 22 September 2020, the CJM
declined to give consent to the application of the Prosecutor for the
following reasons:
(i) Immunity can be claimed by MLAs only in exercise of free
speech and voting as held by this Court in P.V. Narasimha B
Rao vs State (CBI/SPE) etc 9. The alleged offence
committed by the respondent-accused did not have any
nexus with their speech or vote;
(ii) The case against the MLAs was registered at the instance
of the Secretary of the Legislative Assembly and thus, it C
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;
(iii) Although the Government of Kerala had consented to the D
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
E
(iv) 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 F
filed without good faith and is based on external influence.
6. The State of Kerala filed a criminal revision petition10 before
the High Court. The High Court, by its order dated 12 March 2021
dismissed the petition and affirmed the order of the CJM. In doing so,
the High Court rejected the argument of the State that prosecuting the G
MLAs will lower the prestige of the Assembly, and thereby impact public
interest. The High Court observed that:
8
C.C No. 73 of 2019.
9
AIR 1998 SC 2120.
10
Crl. Rev. Pet. No. 641 of 2020. H
794 SUPREME COURT REPORTS [2021] 6 S.C.R.

A (i) 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;
(ii) There is no provision, either in the Constitution, or in the
B 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; and
C (iii) 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. 11
indicates that such arguments must be raised by the
respondent- accused while seeking a discharge before the
D Magistrate.
7. 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
E filed without good faith and on extraneous influence”
8. The State of Kerala and the respondent-accused have filed
independent SLPs against the order of the High Court before this Court.
B Submissions of Parties
F 9. Mr Ranjit Kumar, Senior counsel appearing on behalf of the
State of Kerala made the following submissions in support of the appeals:
(i) The power of the Public Prosecutor to withdraw from the
prosecution for one or more offences of which the accused
is tried can be exercised in furtherance of public justice –
G social, economic, and political as held in Rajendra Kuman
Jain vs State through Special Police Establishment &
Ors.12. The offence that the respondents are accused of
committing occurred during the presentation of the State
11
(1987) 1 SCC 288.
H 12
(1980) 3 SCC 435.
THE STATE OF KERALA v. K. AJITH & ORS. 795
[DR. DHANANJAYA Y CHANDRACHUD, J.]

budget, in the premises of the Legislative Assembly. Their A
actions are manifestations of effective political participation,
and are in furtherance of a political purpose which is a valid
ground for withdrawal of the prosecution in view of the
above decision;
(ii) The court granting permission for withdrawal from B
prosecution performs a supervisory and not an adjudicatory
function. It must not take it upon itself the burden to review
the reasons advanced by the Public Prosecutor but must
only determine if the Public Prosecutor has applied the mind
as a “free agent, uninfluenced by irrelevant and extraneous
considerations”; C

(iii) The High Court while deciding the revision against the order
of the CJM has erroneously relied on the dissent of Chief
Justice Bhagwati in Sheonandan Paswan (supra). The
majority opinion in Sheonandan Paswan (supra) was
authored by Justice Khalid for himself and Justice Natarajan, D
while Justice Venkataramiah authored a separate but
concurring judgment;
(iv) The incident in relation to which the complaint was filed,
took place on the floor of the Kerala Legislative Assembly
during the presentation of the budget by the Finance E
Minister. Since the incident happened inside the House,
prosecution cannot be initiated without the sanction of the
Speaker, who is the presiding officer of the Legislative
Assembly. The dictum in P.V. Narasimha (supra) that the
sanction of the Speaker of the House is required for the F
registration of an offence against any MLA is not restricted
to offences under the Prevention of Corruption Act, 1988;
(v) The genesis of the incident lies in a political protest inside
the House. Certain women MLAs had been physically
assaulted leading to an FIR being registered. There was a G
protest against the Finance Minister during the presentation
of the budget and the incident was a manifestation of that
protest. In this backdrop a decision was taken to bring a
quietus to the incident, and the Government considered it
appropriate to advise the Public Prosecutor to withdraw
the prosecution; H
796 SUPREME COURT REPORTS [2021] 6 S.C.R.

A (vi) 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
B
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
C of the House. Under Article 194(2), no member shall be
held liable in respect of publication of any proceedings inside
the House; and
(vii) The High Court despite finding that no mala fides can be
attributed to the petition for withdrawal initiated by the Public
D 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
E been held that the court can only exercise a supervisory
jurisdiction.
10. Mr Jaideep Gupta, learned Senior counsel appearing on behalf
of the respondent-accused and in support of the appeal in the companion
case, urged that:
F
(i) 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
G 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
H administration of justice;
THE STATE OF KERALA v. K. AJITH & ORS. 797
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(ii) Since the CJM did not apply the correct principles, the High A
Court in the exercise of its revisional jurisdiction under
Section 397 of the CrPC ought to have intervened to correct
the decision; and
(iii) The real test is whether the decision of the Public prosecutor
will destroy the administration of justice. This has to be B
answered in the negative and hence the application for
withdrawal ought to be allowed.
11. On the other hand, Mr Mahesh Jethmalani and Mr V.
Chitambaresh, Senior counsel, and Mr Ramesh Babu, Advocate-On-
Record, appearing on behalf of Respondent Nos 7 and 813, opposed the C
stand of the appellants and the respondent-accused, urging that:
(i) The exercise of the freedom of speech by the MLAs inside
the House does not embrace within it the right to destroy
property. The privileges under Article 194 cannot be used
as a cover for violent actions of members in the precincts D
of the legislative assembly;
(ii) The decision of this court in Lokayukta, Justice
Ripusudan Dayal (Retired) and Ors. vs State of
Madhya Pradesh & Ors.14 holds that a privilege can only
be provided to the extent required so as to allow the members E
to perform their functions without hindrance. A claim of
privilege cannot be used as a shield to circumvent the
application of criminal law since no person enjoys a privilege
against criminal prosecution;
(iii) The observation in P.V Narasimha Rao (supra) on the F
mandatory prior sanction of the Speaker was only made
with specific reference to Section 19 of Prevention of
Corruption Act, 1988.15 Section 19 provides that for the
13
Respondent Nos 7 and 8 were impleaded as parties before the High Court of Kerala
by order dated 12 March 2021 in Crl. M. Appl. 3 of 2021 and Crl. M. Appl. 4 of 2021,
respectively. G
14
(2014) 4 SCC 473.
15
“19. Previous sanction necessary for prosecution.- (1) No court shall take cognizance
of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been
committed by a public servant, except with the previous sanction,—
(a) in the case of a person who is employed in connection with the affairs of the Union
and is not removable from his office save by or with the sanction of the Central
Government, of that Government; H
798 SUPREME COURT REPORTS [2021] 6 S.C.R.

A prosecution of a public servant for offences under the Act,
the sanction of the authority competent to remove the said
person is required. Since no such authority is specified for
MPs, three judges in P.V Narasimha Rao (supra) held
that until Parliament so specifies, the Speaker would be
competent to grant a sanction to prosecute under Section
B
19. The observation cannot be construed to have a general
application to mean that the previous sanction of the Speaker
is required to prosecute the members of the House for any
offence, other than under the Prevention of Corruption Act,
1988;
C (iv) Section 197 of CrPC16 is not applicable to MLAs since
they cannot be removed from office by or with the sanction
of the Government, which is a pre-requisite for the
application of the provision. Even otherwise, the sanction
under Section 197 of the CrPC is not required at the initial
D stage of commencing prosecution but only at a later stage
after cognizance is taken;
(v) The High Court has incorrectly relied on the minority opinion
authored by Justice Bhagwati in Sheonandan Paswan
(supra). However, both Justice Khalid in his majority opinion,
E and Justice Venkataramiah in his concurring opinion held
that this Court must restrain itself from interfering with the
concurrent findings of the lower courts, either accepting or
rejecting the withdrawal petition filed by the Public
Prosecutor. Since the CJM dismissed the withdrawal petition
in the present case and the High Court dismissed the revision
F petition against the order of the CJM, this Court must refrain
from interfering with the concurrent findings of the courts
below under Article 136 of the Constitution; and
(b) in the case of a person who is employed in connection with the affairs of a State and
is not removable from his office save by or with the sanction of the State Government,
G of that Government;
(c) in the case of any other person, of the authority competent to remove him from his
office. […]”.
16
“197. Prosecution of Judges and public servants: (1) When any person who is or was
a Judge or Magistrate or a public servant not removable from his office save by or with
the sanction of the Government is accused of any offence alleged to have been committed
by him while acting or purporting to act in the discharge of his official duty, no Court
H shall take cognizance of such offence except with the previous sanction […]”.
THE STATE OF KERALA v. K. AJITH & ORS. 799
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(vi) In the present case this court must be guided by: (a) the A
concurrent findings on the illegality of the application for
withdrawal; (b) the overriding aspect of public interest; and
(c) the object of the law. The provisions of the legislation
enacted by Parliament for prosecuting damage to public
property make its intent clear. Section 3 of the Prevention
B
of Damage to Public Property Act 1984 provides a minimum
sentence of six months and Section 5 has adopted a special
provision on bail, whereby it is necessary to give prosecution
an opportunity to oppose the application for bail. These
provisions are similar to provisions for bail in the Narcotics
Drugs and Psychotropic Substance Act, 1951, which C
indicate the intention of the Parliament to consider damage
to public property as a grave offence.
C Issues and Analysis
12. Having adverted to the submissions of the parties, we shall
now turn to the issues raised before this Court. The question before this D
Court is centred on the exercise of power by the Public Prosecutor
under Section 321 and the exercise of jurisdiction by the CJM. Before
assessing the submissions of the parties, we find it necessary to discuss
the position of the law on this point.
C.1 Withdrawal of prosecution E
13. Section 321 of the CrPC reads as follows:
“321. Withdrawal from prosecution. The Public Prosecutor or
Assistant Public Prosecutor in charge of a case may, with the
consent of the Court, at any time before the judgment is pronounced,
withdraw from the prosecution of any person either generally or F
in respect of any one or more of the offences for which he is
tried; and, upon such withdrawal,-
(a) if it is made before a charge has been framed, the accused
shall be discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under G
this Code no charge is required, he shall be acquitted in respect of
such offence or offences:
Provided that where such offence-
(i) was against any law relating to a matter to which the executive
power of the Union extends, or H
800 SUPREME COURT REPORTS [2021] 6 S.C.R.

A (ii) was investigated by the Delhi Special Police Establishment
under the Delhi Special Police Establishment Act, 1946 (25 of
1946 ), or
(iii) involved the misappropriation or destruction of, or damage to,
any property belonging to the Central Government, or
B (iv) was committed by a person in the service of the Central
Government while acting or purporting to act in the discharge of
his official duty, and the Prosecutor in charge of the case has not
been appointed by the Central Government, he shall not, unless
he has been permitted by the Central Government to do so, move
C the Court for its consent to withdraw from the prosecution and
the Court shall, before according consent, direct the Prosecutor
to produce before it the permission granted by the Central
Government to withdraw from the prosecution.”
14. The powers under Section 321 of the CrPC have been
D interpreted by this Court on a number of occasions. In State of Bihar
vs Ram Naresh Pandey & Anr.17, a three-judge Bench of this Court
analysed Section 494 of the earlier Code of Criminal Procedure 1898
(similar to Section 321 of the CrPC). Justice B. Jagannadhadas observed
that in granting consent to withdraw a prosecution, the court exercises a
judicial function. However, in doing so, the court need not determine the
E matter judicially. The 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”. This Court also observed
that the Magistrate’s power under Section 494 was to prevent abuse of
F power of the executive. Addressing the question of whether insufficiency
of evidence is a ground for withdrawal of prosecution, the Court held
that :
“9. […] we find it difficult to appreciate why the opinion
arrived at by both the trial court and the Sessions Court
G that the view taken of that material by the Public Prosecutor
viz. that it was meagre evidence on which no conviction
could be asked for, should be said to be so improper that
the consent of the Court under Section 494 of the Code of
Criminal Procedure has to be withheld. Even the private
17
H AIR 1957 SC 389.
THE STATE OF KERALA v. K. AJITH & ORS. 801
[DR. DHANANJAYA Y CHANDRACHUD, J.]

complainant who was allowed to participate in these proceedings A
in all its stages, does not, in his objection petition, or revision petitions,
indicate the availability of any other material or better material.
Nor, could the complainant’s counsel, in the course of arguments
before us inform us that there was any additional material available.
In the situation, therefore, excepting for the view that no order to
B
withdraw should be passed in such cases either as a matter of
law or as a matter of propriety but that the matter should [b]e
disposed of only after the evidence is judicially taken, we apprehend
that the learned Chief Justice himself would not have felt called
upon to interfere with the order of the Magistrate in the exercise
of his revisional jurisdiction.” C
(emphasis supplied)
15. In M.N Sankarayaraynan Nair vs P.V Balakrishnan 18, this
Court held that the powers conferred on the Prosecutor under Section
494 of the Code of Criminal Procedure 1898 are to be exercised in
“furtherance of the object of law”. On the power of the court to grant D
consent, Justice P. Jaganmohan Reddy observed that
“8. […] The Court also while considering the request to grant
permission under the said section should not do so as a necessary
formality — the grant of it for the mere asking. It may do so
only if it is satisfied on the materials placed before it that E
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.” F
(emphasis supplied)
16. In Rajender Kumar Jain vs State through Special Police
Establishment and Ors.19, there was an application for the withdrawal
of the prosecution against Mr George Fernandes, Chairperson of the
Socialist Party of India. Mr Fernandes had been accused of rousing G
resistance against the Emergency imposed in 1975 and of participating
in a conspiracy to do acts which may have resulted in the destruction of
property. After the Emergency was revoked, the Special Public
18
(1972) 1 SCC 318.
19
(1980) 3 SCC 435. H
802 SUPREME COURT REPORTS [2021] 6 S.C.R.

A Prosecutor filed an application under Section 321 of the CrPC ‘in view
of the changed circumstances and public interest’. Given the political
background of the dispute, a two judge bench of this Court, speaking
through Justice O. Chinnappa Reddy highlighted the importance of the
independence of the Public Prosecutor in exercising the power under
Section 321 of the CrPC. In the context of a withdrawal of prosecution
B
where matters of public policy are involved, the Court held that:
“16. In the past, we have often known how expedient and
necessary it is in the public interest for the public prosecutor to
withdraw from prosecutions arising out of mass agitations,
communal riots, regional disputes, industrial conflicts, student unrest
C etc. Wherever issues involve the emotions and there is a
surcharge of violence in the atmosphere it has often been
found necessary to withdraw from prosecutions in order to
restore peace, to free the atmosphere from the surcharge
of violence, to bring about a peaceful settlement of issues
D and to preserve the calm which may follow the storm. To
persist with prosecutions where emotive issues are involved in
the name of vindicating the law may even be utterly counter-
productive. An elected Government, sensitive and responsive to
the feelings and emotions of the people, will be amply justified if
for the purpose of creating an atmosphere of goodwill or for the
E purpose of not disturbing a calm which has descended it decides
not to prosecute the offenders involved or not to proceed further
with prosecution already launched. In such matters who but the
Government can and should decide, in the first instance, whether
it should be baneful or beneficial to launch or continue
F prosecutions. If the Government decides that it would be in the
public interest to withdraw from prosecutions, how is the
Government to go about this task?
17. Under the Code of Criminal Procedure it is the Public
Prosecutor that has to withdraw from the prosecution and it is the
G court that has to give its consent to such withdrawal. […] it is he
that is entrusted with the task of initiating the proceeding for
withdrawal from the prosecution. But, where such large and
sensitive issues of public policy are involved, he must, if
he is right-minded, seek advice and guidance from the
policy- makers. His sources of information and resources are
H of a very limited nature unlike those of the policy-makers. If the
THE STATE OF KERALA v. K. AJITH & ORS. 803
[DR. DHANANJAYA Y CHANDRACHUD, J.]

policy- makers themselves move in the matter in the first A
instance, as indeed it is proper that they should where
matters of momentous public policy are involved, and if they
advise the Public Prosecutor to withdraw from the
prosecution, it is not for the court to say that the initiative
comes from the Government and therefore the Public
B
Prosecutor cannot be said to have exercised a free mind.
Nor can there be any quibbling over words. If ill informed but
well meaning bureaucrats choose to use expressions like “the
Public Prosecutor is directed” or “the Public Prosecutor is
instructed”, the court will not on that ground alone stultify the
larger issue of public policy by refusing its consent on the ground C
that the Public Prosecutor did not act as a free agent when he
sought withdrawal from the prosecution. What is at stake is not
the language of the letter or the prestige of the Public Prosecutor
but a wider question of policy. The court, in such a situation is
to make an effort to elicit the reasons for withdrawal and
D
satisfy itself, that the Public Prosecutor too was satisfied
that he should withdraw from the prosecution for good and
relevant reasons.”
Thus the fact that the withdrawal was initiated by the government
was held not to vitiate the application, so long as the Public Prosecutor
had independently applied his mind. Elaborating on the scope of E
withdrawal on the ground of public justice, and in particular the ambit of
the expression ‘political offence’, the Court held:
“19.[…] For our present purpose it is really unnecessary for us to
enter into a discussion as to what are political offences except in
a sketchy way. It is sufficient to say that politics are about F
Government and therefore, a political offence is one
committed with the object of changing the Government of
a State or inducing it to change its policy. Mahatma Gandhi,
the father of the Nation, was convicted and jailed for offences
against the municipal laws; so was his spiritual son and the first G
Prime Minister of our country.
[…]
21. To say that an offence is of a political character is not to
absolve the offender of the offence. But the question is, is it a
valid ground for the Government to advise the Public Prosecutor H
804 SUPREME COURT REPORTS [2021] 6 S.C.R.

A to withdraw from the prosecution? We mentioned earlier that
the Public Prosecutor may withdraw from the prosecution
of a case not merely on the ground of paucity of evidence
but also in order to further the broad ends of public justice
and that such broad ends of public justice may well include
appropriate social, economic and political purposes. It is
B
now a matter of history that the motivating force of the party
which was formed to fight the elections in 1977 was the same as
the motivating force of the criminal conspiracy as alleged in the
order sanctioning the prosecution; only the means were different.
The party which came to power as a result of 1977 elections
C chose to interpret the result of the elections as a mandate of the
people against the politics and the policy of the party led by Shrimati
Gandhi. Subsequent events leading up to the 1980 elections which
reversed the result of the 1977 elections may cast a doubt whether
such interpretation was correct; only history can tell. But, if the
Government of the day interpreted the result of the 1977 elections
D
as a mandate of the people and on the basis of that interpretation
the Government advised the Public Pr[o]secutor to withdraw from
the prosecution, one cannot say that the Public Prosecutor was
activated by any improper motive in withdrawing from the
prosecution nor can one say that the Magistrate failed to exercise
E the supervisory function vested in him in giving his consent.”
(emphasis supplied)
17. 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 (supra). In this case, the Board of
F Directors of the Patna Urban Cooperative Bank was charged with
misdemeanours such as misappropriation of the funds of the bank by
giving multiple loans to the same person under different names and
approving loans for fictitious persons. The Registrar of Cooperative
Societies at the instance of the Reserve Bank of India directed legal
G action to be initiated against the stakeholders. On investigation, statements
were made against Dr Jagannath Mishra, the ex-Chief Minister of Bihar,
and it was alleged that he misused his office and made illegal personal
gains for himself while holding office of the Chief Minister. A charge
sheet was filed and the CJM took cognizance of the matter. However,
before the case could progress further, Dr Mishra once again took oath
H as the Chief Minister of Bihar and a communication was issued by the
THE STATE OF KERALA v. K. AJITH & ORS. 805
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Government that it had decided to withdraw the case. A withdrawal A
application was filed by the Public Prosecutor on grounds of lack of
evidence, implication due to political vendetta, and that the prosecution
would be against public policy and public interest. The CJM gave consent
for the withdrawal, and the High Court affirmed the order of the CJM.
18. When the matter came up before this Court, the appeal was B
dismissed by a 2:1 majority. A review petition was allowed, and the scope
of Section 321 of the CrPC was addressed by a Constitution Bench.
Chief Justice Bhagwati in his minority opinion held that in a case where
a withdrawal petition has been filed on the ground of paucity of evidence,
after the charge sheet has been filed but before the charge has been
framed in a warrant case, the exercise of power by the court granting C
consent is similar to the power of the court to discharge the accused
under Section 239 of the CrPC20. Hence, in such cases, it would not be
competent for the public prosecutor to file a withdrawal petition unless
there is material change in the evidence. The Chief Justice was of the
opinion that the court must take up the exercise of discharge in such D
cases since it would carry greater conviction with the people. He
observed:
“30. The second qualification[..] What the court, therefore, does
while exercising its function under Section 239 is to consider the
police report and the document sent along with it as also any E
statement made by the accused if the court chooses to examine
him. And if the court finds that there is no prima facie case against
the accused the court discharges him. But that is precisely what
the court is called upon to do when an application for withdrawal
from the prosecution is made by the Public Prosecutor on the
ground that there is insufficient or no evidence to support the F
prosecution. There also the court would have to consider the
material placed before it on behalf of the prosecution for the
purpose of deciding whether the ground urged by the Public
Prosecutor for withdrawal of the prosecution is justified or not
and this material would be the same as the material before the G
20
“Section 239: When accused shall be discharged: If, upon considering the police
report and the documents sent with it under section 173 and making such examination,
if any, of the accused as the Magistrate thinks necessary and after giving the prosecution
and the accused an opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge the accused, and record his
reasons for so doing.” H
806 SUPREME COURT REPORTS [2021] 6 S.C.R.

A court while discharging its function under Section 239. If the court
while considering an application for withdrawal on the
ground of insufficiency or absence of evidence to support
the prosecution has to scrutinise the material for the
purpose of deciding whether there is in fact insufficient
evidence or no evidence at all in support of the prosecution,
B
the court might as well engage itself in this exercise while
considering under Section 239 whether the accused shall
be discharged or a charge shall be framed against him. It is
an identical exercise which the court will be performing
whether the court acts under Section 239 or under Section
C 321. If that be so, we do not think that in a warrant case
instituted on a police report the Public Prosecutor should
be entitled to make an application for withdrawal from the
prosecution on the ground that there is insufficient or no
evidence in support of the prosecution. “
D (emphasis supplied)
19. 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
E 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
F 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:
“73 […]When an application under Section 321 CrPC is made, it
G is not necessary for the court to assess the evidence to discover
whether the case would end in conviction or acquittal. To contend
that the court when it exercises its limited power of giving consent
under Section 321 has to assess the evidence and find out whether
the case would end in acquittal or conviction, would be to rewrite
H Section 321 CrPC and would be to concede to the court a power
THE STATE OF KERALA v. K. AJITH & ORS. 807
[DR. DHANANJAYA Y CHANDRACHUD, J.]

which the scheme of Section 321 does not contemplate. The A
acquittal or discharge order under Section 321 are not the same
as the normal final orders in criminal cases. The conclusion will
not be backed by a detailed discussion of the evidence in the case
of acquittal or absence of prima facie case or groundlessness in
the case of discharge. All that the court has to see is whether
B
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. In this case, on a reading of the application C
for withdrawal, the order of consent and the other attendant
circumstances, I have no hesitation to hold that the application for
withdrawal and the order giving consent were proper and strictly
within the confines of Section 321 CrPC.
[…] D
78. The section gives no indication as to the grounds on which the
Public Prosecutor may make the application, or the considerations
on which the court is to grant its consent. The initiative is that of
the Public Prosecutor and what the court has to do is only to give
its consent and not to determine any matter judicially. The judicial
E
function implicit in the exercise of the judicial discretion
for granting the consent would normally mean that the court
has to satisfy itself 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.” F
(emphasis supplied)
The Court also held that while granting or denying consent to a
withdrawal petition, the court is not to review the purported grounds
warranting withdrawal that the public prosecutor has provided, but must
only make sure that it is for a legitimate purpose, initiated without mala G
fides.
20. Both, Justice Khalid in his majority opinion and Justice
Venkataramiah (as the learned Chief Justice then was) in his concurring
opinion, held that this Court must be circumspect in interfering with the
concurrent findings of the courts below, allowing or dismissing the
H
808 SUPREME COURT REPORTS [2021] 6 S.C.R.

A withdrawal petition. Highlighting that this Court is not a court of facts
and evidence it was observed:
“89. An order passed under Section 321 comes to this Court by
special leave, under Article 136 of the Constitution of India. The
appeal before us came thus. It has been the declared policy of
B this Court not to embark upon a roving enquiry into the facts and
evidence of cases like this or even an order against discharge.
This Court will not allow itself to be converted into a court
of facts and evidence. This Court seldom goes into
evidence and facts. That is as it should be. Any departure
from this salutary self-imposed restraint is not a healthy
C practice and does not commend itself to me. It is necessary
for this Court to remember that as an apex court, any
observation on merits or on facts and evidence of a case
which has to go back to the courts below will seriously
prejudice the party affected and it should be the policy of
D this Court not to tread upon this prohibited ground and
invite unsavoury but justifiable criticism. Is this Court to
assess the evidence to find out whether there is a case for acquittal
or conviction and convert itself into a trial court? Or is this Court
to order a retrial and examination of hundred witnesses to find out
whether the case would end in acquittal or conviction? Either of
E these conclusions in the case is outside the scope of Section 321.
This can be done only if we rewrite Section 321.”
(emphasis supplied)
21. The decision in Sheonandan Paswan (supra) has held the
F ground since then. An instance of its application was when this Court
dealt with the withdrawal of prosecution of an MLA for offences involving
misappropriation of public money. In Yerneni Raja Ramchandar vs
State of Andhra Pradesh & Ors.21, the appellant, an MLA, was accused
of fabricating hospital records to repeatedly claim medical reimbursement
for a sum of Rs. 2,89,489, Rs. 1,33,939, and Rs. 1,22,825 from the
G Government. Amounts of Rs. 289,489, Rs. 60,000 and Rs. 60,000 were
sanctioned by the Government time and again in response to these
requests. Charges of misappropriation were levelled against him. Since
the appellant was an MLA, the matter was referred to the Ethics
Committee of the Legislative Assembly, where the appellant tendered
H 21
(2009) 15 SCC 604.
THE STATE OF KERALA v. K. AJITH & ORS. 809
[DR. DHANANJAYA Y CHANDRACHUD, J.]

an apology and refunded Rs. 60,000 to the Government. Pursuant to A
this, the Ethics Committee recommended a withdrawal of the prosecution
against the appellant. The State Government also issued an order requiring
the District Collector to direct the Prosecutor to withdraw the case.
Multiple applications for withdrawal of prosecution were made, which
were dismissed by the Magistrate. These, however, were ultimately
B
allowed by the High Court. In refusing to allow the withdrawal of the
prosecution against the appellant, this Court opined that in view of decision
in Sheonandan Paswan (supra), the power of judicial review of the
High Court was limited. It could have only interfered if there was an
error of law committed by the Magistrate. Further, the Court also
considered the implication of the disciplinary action taken by the Ethics C
Committee of the Legislative Assembly on the withdrawal of prosecution
under Section 321 of the CrPC. Justice SB Sinha, speaking for the two-
judge Bench, held that
“15. The Ethics Committee of the legislature of the State of Andhra
Pradesh was empowered to deal with the disciplinary action or D
otherwise which may be taken against the Members of the
Legislative Assembly. A criminal case against a Member of the
Legislative Assembly, ordinarily, should be allowed to be continued
on its own merit, particularly, in the light of the facts of the present
matter wherein the High Court had refused to interfere at the
earlier stages of the proceedings. We have also noticed E
hereinbefore that the High Court, in fact, had not only been
monitoring the investigation, but also directed the learned trial Judge
to complete the trial within a period of three months. The action
on the part of the State to issue the said government order despite
the earlier orders of the High Court must be considered keeping F
in view the said factual matrix.
[…]
18. The government order was issued even according to the State
in terms of the recommendations made by the Ethics Committee
alone. […] The Ethics Committee had no jurisdiction to make G
such recommendations. If the State had acted on the basis
of recommendations made by a body who had no role to
play, its action would be vitiated in law, recommendations
of the Ethics Committee being unauthorised, the action of
the State would attract the doctrine of malice in law. H
810 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 19. Even otherwise, the action on the part of the State, in our
opinion, suffers from malice on fact as well. The State is the
protector of law. When it deals with a public fund, it must act in
terms of the procedure established by law. In respect of public
fund, the doctrine of public trust would also be applicable
so far as the State and its officers are concerned. It could
B
not, save and except for very strong and cogent reasons,
have issued the said government order despite the orders
of the High Court.”
(emphasis supplied)
22. In offences involving the violation of public trust by executive
C or legislative authorities, this Court has evaluated the gravity of the
offence and the impact of the withdrawal of prosecution on public life.
In Bairam Muralidhar vs State of Andhra Pradesh22, the Prosecutor
was seeking a withdrawal of the prosecution against a police officer
who had been accused of demanding a bribe in exchange of not implicating
D a particular individual for an offence of kidnapping and for reducing the
charges against the individual’s son. The police officer was accused of
offences under Sections 7 and 13(1) of the Prevention of Corruption
Act 1988. An application under Section 321 of the CrPC was filed by
the Prosecutor based on the fact that the Government had issued an
order for withdrawal of prosecution against the officer given his
E meritorious service and directed that his case be placed before the
Administrative Tribunal for disciplinary proceedings. This Court affirmed
the concurrent findings of the High Court and the Trial Court and rejected
the application for withdrawal. Justice Dipak Misra (as he then was),
speaking on behalf of the two judge Bench, held that
F “19. In the case at hand, as the application filed by the Public
Prosecutor would show that he had mechanically stated about
the conditions precedent, it cannot be construed that he has really
perused the materials and applied his independent mind solely
because he has so stated. The application must indicate
perusal of the materials by stating what are the materials
G he has perused, may be in brief, and whether such
withdrawal of the prosecution would serve public interest
and how he has formed his independent opinion. As we
perceive, the learned Public Prosecutor has been totally
guided by the order of the Government and really not
H 22
(2014) 10 SCC 380.
THE STATE OF KERALA v. K. AJITH & ORS. 811
[DR. DHANANJAYA Y CHANDRACHUD, J.]

applied his mind to the facts of the case. The learned trial A
Judge as well as the High Court has observed that it is a case
under the Prevention of Corruption Act. They have taken note of
the fact that the State Government had already granted sanction.
It is also noticeable that the Anti- Corruption Bureau has found
there was no justification of withdrawal of the prosecution.
B
[…]
22. We have referred to these authorities only to show that
in the case at hand, regard being had to the gravity of the
offence and the impact on public life apart from the nature
of application filed by the Public Prosecutor, we are of the
considered opinion that view expressed by the learned trial C
Judge as well as the High Court cannot be found fault with.
We say so as we are inclined to think that there is no ground to
show that such withdrawal would advance the cause of justice
and serve the public interest. That apart, there was no independent
application of mind on the part of the learned Public Prosecutor, D
possibly thinking that the court would pass an order on a mere
asking.”
(emphasis supplied)
23. The principles which emerge from the decisions of this Court
on the withdrawal of a prosecution under Section 321 of the CrPC can E
now be formulated:
(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 F
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;
G
(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 the withdrawal of the prosecution is necessary
for good and relevant reasons; H
812 SUPREME COURT REPORTS [2021] 6 S.C.R.

A (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:
B (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
C 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
(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
E which the public prosecutor is duty bound to maintain;
(vi) 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
F matters involving public funds and the 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, this
Court while exercising its jurisdiction under Article 136 of
G 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.
H
THE STATE OF KERALA v. K. AJITH & ORS. 813
[DR. DHANANJAYA Y CHANDRACHUD, J.]

C.2 Immunities and Privileges of MLAs A
24. Articles 105 and 194 of the Constitution provide in similar
terms for the privileges and immunities of Members of Parliament23 and
MLAs respectively. Article 194 of the Constitution is extracted below:
“194. Powers, privileges, etc, of the House of Legislatures and of
the members and committees thereof B

(1) Subject to the provisions of this Constitution and to the rules
and standing orders regulating the procedure of the Legislature,
there shall be freedom of speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable C
to any proceedings in any court in respect of anything said
or any vote given by him in the Legislature or any
committee thereof, and no person shall be so liable in
respect of the publication by or under the authority of a
House of such a Legislature of any report, paper, votes or
proceedings. D
(3) In other respects, the powers, privileges and immunities of a
House of the Legislature of a State, and of the members and the
committees of a House of such Legislature, shall be such as may
from time to time be defined by the Legislature by law, and, until
so defined, shall be those of that House and of its members and E
committees immediately before the coming into force of Section
26 of the Constitution forty fourth Amendment Act, 1978.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation
to persons who by virtue of this Constitution have the right to
speak in, and otherwise to take part in the proceedings of a House F
of the Legislature of a State or any committee thereof as they
apply in relation to members of that Legislature.”
(emphasis supplied)
25. Clause 1 of Article 194 recognizes the freedom of speech in
the legislature of every State. However, the freedom recognized by clause G
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

22
(2014) 10 SCC 380. H
814 SUPREME COURT REPORTS [2021] 6 S.C.R.

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
B
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
C proceedings of the House or its committees.
26. At the time of the adoption of the Constitution, clause 3 of
Article 194 provided that the privileges, immunities and powers of a
House of the Legislature of a State (and of its members and committees)
shall be such as may from time to time be defined by the legislature by
D law, and until so defined, shall be those of the House of Commons of the
Parliament of the United Kingdom at the commencement of the
Constitution. By Section 34 of the Forty- Second Amendment to the
Constitution, clause (3) of Article 194 was amended and embodied a
transitory provision under which until the powers, privileges and
immunities of a House of the legislature of a State (and of the members
E and its committees) were defined by a law made by the legislature, they
shall be those of the British House of Commons and the privileges of
each House “shall be such as may from time to time be evolved by such
House”. However, Section 34 was not brought into force by issuing a
notification under Section 1(2) of the Constitution (Forty-Second)
F Amendment Act 1976. Eventually, clause (3) in its present form was
substituted by Section 26 of the Constitution (Forty-Fourth) Amendment
Act 1978 with effect from 20 June 197924. The present position of clause
(3) is that:

24
Section 26 of the Constitution (Forty-fourth Amendment) Act 1978, w.e.f. 20 June
G 1979, read as follows:
“26. In article 194 of the Constitution, in clause (3), for the words “shall be those of the
House of commons of the Parliament of the United Kingdom and of its members and
committees, at the commencement of this Constitution”, the words, figures and brackets
“shall be those of that House and of its members and committees immediately before
the coming into force of section 26 of the Constitution (Forty fourth Amendment) Act
H 1978” shall be substituted.”
THE STATE OF KERALA v. K. AJITH & ORS. 815
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(i) The ultimate source of the powers, privileges and immunities A
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 Forty-Fourth Amendment Act 1978 would govern; and B
(iii) The amendment to the Constitution introducing the concept
of evolution of privileges and immunities by the House of
the legislature never came into force and now stands
deleted.
C.2.1 Position in the United Kingdom C
27. Now, in this backdrop, it would be necessary to assess at the
outset the nature of the privileges and immunities referable to the House
of Commons in the United Kingdom. Erskine May’s Parliamentary
Practice25, provides a comprehensive statement of law, indicating the
phases through which Parliamentary privilege evolved in the UK. D
First phase
The first phase of the conflict between Parliament and the courts
was “about the relationship between the lex parliament and the common
law of England”. In this view, the House of Parliament postulated that
“they alone were the judges of the extent and application of their own E
privileges, not examinable by any court or subject to any appeal”. The
first phase of the conflict, has been described thus:
“The earlier views of the proper spheres of court and Commons
were much influenced by political events and the constitutional
changes to which they gave rise. Coke in the early seventeenth F
century regarded the law of Parliament as a particular law, distinct
from the common law. For that reason “judges ought not to give
any opinion of a matter of Parliament, because it is not to be
decided by the common laws but secundum legem et
consuetudinem parliament 26.”
G
However, even during this period, “elements of the opposing view
that – decision of Parliament on matters of privilege can be called in
25
ERSKINE MAY, PARLIAMENTARY PRACTICE, Chapter 17, page 281 (24th
Ed., Lexis Nexis, 2011).
26
SIR EDWARD COKE, FOURTH PART OF THE INSTITUTES OF THE LAWS
OF ENGLAND 14 (1797). H
816 SUPREME COURT REPORTS [2021] 6 S.C.R.

A question in other courts, that the lex parliament is part of the common
law and known to the courts, and that resolutions at either House
declaratory of privilege will not bind the courts- are found at almost as
early a date, and they gained impetus as time went by”.
Second phase
B Erskine May tells us that in the second phase of the nineteenth
century:
“…some of the earlier claims to jurisdiction made in the name of
privilege by the House of Commons were untenable in a court of
law: that the law of Parliament was part of the general law, that
C its principles were not beyond the judicial knowledge of the judges,
and that the duty of the common law to define its limits could no
longer be disputed. At the same time, it was established that there
was a sphere in which the jurisdiction of the House of Commons
was absolute and exclusive.”
D Third phase
In the early and mid-twentieth century:
“In general, the judges have taken the view that when a
matter is a proceeding of the House, beginning and
terminating within its own walls, it is obviously outside the
E jurisdiction of the courts, unless criminal acts are involved.
Equally clearly, if a proceeding of the House results in action
affecting the rights of persons exercisable outside the House, the
person who published the proceedings or the servant who executed
the order (for example) will be within the jurisdiction of the courts,
F who may inquire whether the act complained of is duly covered
by the order, and whether the privilege claimed by the House
does, as pleaded, justify the act of the person who executed the
order.”
(emphasis supplied)
G In the later twentieth century, the House of Commons came to a
significant conclusion about the limits of the phrase and the protection
afforded to proceedings in Parliament.
28. The privileges of the British House of Commons at the
commencement of the Constitution as embodied in clause (3) of Article
H 194 as it then stood has significant consequences. First, the nature and
THE STATE OF KERALA v. K. AJITH & ORS. 817
[DR. DHANANJAYA Y CHANDRACHUD, J.]

extent of the privileges enjoyed by the members was to be decided by A
the courts and not by the legislature, following the English principle that
the courts have the power to determine whether the House possessed a
particular privilege. Second, the courts had the power to determine
whether any of the privileges of the British House of Commons that
existed at the date of the commencement of the Constitution, had become
B
inconsistent with the provisions of the Constitution.
29. As mentioned above, since the Parliament is yet to enact a
law on the subject of parliamentary privileges, according to Article 194(3)
of the Constitution, the MLAs shall possess privileges that the members
of the House of Commons possessed at the time of enactment of the
C
Constitution. It is thus imperative that we refer to judgments of the United
Kingdom on whether criminal offences committed within the precincts
of the House of Commons are covered under ‘parliamentary privileges’,
receiving immunity from prosecution.
30. In R vs Eliot, Holles and Valentine27, Sir John Eliot and his
D
fellows in the House of Commons protested against the Armenian
movement in the English Church in the House. During the course of the
protest, three members of the House used force to hold the Speaker
down, preventing him from adjourning the House. They were charged
for seditious speech and assault. The court of King’s Bench rejected the
argument of the members that only the House had the exclusive jurisdiction E
to examine their conduct, and imposed fined and sentenced them to
imprisonment. The House of Lords reversed the judgment of the King’s
Bench on the writ of error. One of the errors specified was that the
charge of seditious speech and assault on the Speaker should not have
been disposed of by the same judgment. It was observed that while the
F
former was within the exclusive jurisdiction of the House, the latter could
‘perhaps’ be tried by the courts. It was not expressly and categorically
stated that the assault inside the House could only be tried by the House.
31. In Bradlaugh vs Gossett,28 an elected member of the House
of Commons prevented the Speaker from administering oath.
G
Subsequently, the Sergeant-at-Arms exerted physical force to remove
the member from the precincts of the House. The elected member
initiated action against the Sergeant and the same was dismissed. Justice

27
(1629) 3 St Tr 292-336.
28
[1884] EWHC 1 (QB). H
818 SUPREME COURT REPORTS [2021] 6 S.C.R.

A Stephen in his concurring judgment observed that the House –similar to
a private person – has an exercisable right to use force to prevent a
trespasser from entering the House, and authorise others to carry out its
order. In that context he observed:
“The only force which comes in question in this case is, such
B force as any private man might employ to prevent a trespass on
his own land. I know of no authority for the proposition that
an ordinary crime committed in the House of Commons
would be withdrawn from the ordinary course of criminal
justice”.
C (emphasis supplied)
Justice Stephen sought to differentiate ‘ordinary crimes’ from
‘crimes’. By the former, he referred to criminal offences that are
committed within the precincts of the House, but bear no nexus to the
effective participation in essential parliamentary functions.
D 32. In R vs Chaytor and others29, the UK Supreme Court was
dealing with four accused persons who were charged with false
accounting in relation to parliamentary expenses and had claimed
immunity from legal proceedings as it infringed their parliamentary
privilege. Against them, disciplinary proceedings were initiated by the
E House. Article 9 of the Bill of Rights 1689 provides that the freedom of
speech and debates or proceedings in the Parliament must not be
questioned by any court or place outside Parliament. The question before
the Court was what constituted “proceedings in Parliament”. Lord Phillips
observed that:

F “83. The House does not assert an exclusive jurisdiction to
deal with criminal conduct, even where this relates to or
interferes with proceedings in committee or in the House.
Where it is considered appropriate the police will be invited
to intervene with a view to prosecution in the courts.
Furthermore, criminal proceedings are unlikely to be possible
G without the cooperation of Parliament. Before a prosecution can
take place it is necessary to investigate the facts and obtain
evidence.”
(emphasis supplied)

H 29
[2010] UKSC 52 .
THE STATE OF KERALA v. K. AJITH & ORS. 819
[DR. DHANANJAYA Y CHANDRACHUD, J.]

The Law Lord further held that the submission of claims is A
incidental to the administration of the parliament and not proceedings
of the parliament:
“90. Where the House becomes aware of the possibility that
criminal offences may have been committed by a Member in
relation to the administration of the business of Parliament in B
circumstances that fall outside the absolute privilege conferred
by article 9, the considerations of policy to which I have referred
at para 61 above require that the House should be able to refer
the matter to the police for consideration of criminal proceedings,
or to cooperate with the police in an inquiry into the relevant facts.
That is what the House has done in relation to the proceedings C
brought against the three defendants.”
Referring to the distinction made by Justice Stephen in Bradlaugh
(supra), Lord Lodger observed:
“118. That remains the position to this day. I have therefore no D
doubt that, if the offences with which the appellants are charged
are to be regarded as “ordinary crimes”, then – even assuming
that they are alleged to have been committed entirely within the
precincts of the House – the appellants can be prosecuted in the
Crown Court. The only question, therefore, is whether there
is any aspect of the offences which takes them out of the E
category of “ordinary crime” and into the narrower category
of conduct in respect of which the House would claim a
privilege of exclusive cognizance.”
(emphasis supplied)
F
From the above cases it is evident that 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.
G
C.2.2 Position in India
33. The immunity available to the MPs under Article 105(2) of
the Constitution from liability to “any proceedings in any court in respect
of anything said or any vote given by him in Parliament” (similar to
Article 194(2) of the Constitution in case of MLAs) became the subject
H
820 SUPREME COURT REPORTS [2021] 6 S.C.R.

A matter of the decision of the Constitution Bench in P. V. Narasimha
Rao (supra). The judgment of the Constitution Bench, which consisted
of Justice SC Agrawal, Justice GN Ray, Justice AS Anand, Justice SP
Bharucha and Justice S Rajendra Babu, comprised of three opinions.
The first opinion was by Justice SC Agrawal (on behalf of himself and
Dr Justice AS Anand), the second by Justice SP Bharucha (on behalf of
B
himself and Justice S Rajendra Babu) and the third, by Justice GN Ray.
34. In understanding the judgment of the Constitution Bench, it
becomes necessary at the outset to dwell on the decision of Justice GN
Ray. In the course of his judgment, Justice GN Ray agreed with the
reasoning of Justice SC Agrawal that
C
(i) An MP is a public servant under Section 2(c) of the
Prevention of Corruption Act 1988; and
(ii) Since there is no authority to grant sanction for the
prosecution of an MP under Section 19(1) of the Prevention
D of Corruption Act 198830, the Court can take cognizance of
the offences mentioned in Section 19(1) in the absence of
sanction. However, before filing a charge sheet in respect
of an offence punishable under Sections 7, 10, 11, 12 and
15 against an MP in a criminal court, the prosecuting agency
must obtain the sanction of the Chairman of the Rajya Sabha
E or the Speaker of the Lok Sabha as the case may be.
35. Therefore, on the first aspect, while understanding the context
and text of the decision, it is important to bear in mind that Section 19(1)
of the PC Act specifically mandates sanction for prosecution of a public
servant, a description which is fulfilled by an MP. However, there being
F no authority competent to grant sanction for the prosecution of a Member
of Parliament, Justice SC Agrawal, speaking for himself and Dr Justice
AS Anand, held that:
“3. Since there is no authority competent to remove a Member of
Parliament and to grant sanction for his prosecution under Section
G 19(1) of the Prevention of Corruption Act, 1988, the court can
take cognizance of the offences mentioned in Section 19(1) in the
absence of sanction but till provision is made by Parliament in that
regard by suitable amendment in the law, the prosecuting agency,
before filing a charge-sheet in respect of an offence punishable
30
H “PC Act”
THE STATE OF KERALA v. K. AJITH & ORS. 821
[DR. DHANANJAYA Y CHANDRACHUD, J.]

under Sections 7, 10, 11, 13 and 15 of the 1988 Act against a A
Member of Parliament in a criminal court, shall obtain the
permission of the Chairman of the Rajya Sabha/Speaker of the
Lok Sabha, as the case may be.”
Justice GN Ray as noted earlier agreed with the above formulation.
36. However, it is necessary to appreciate the factual context of B
the case before dealing with the interpretation of Article 105(3) of the
Indian Constitution. On 26 July 1993, a Motion of No Confidence was
moved in the Lok Sabha against the minority government of Shri P V
Narasimha Rao. The support of fourteen members was needed to defeat
the No Confidence Motion. The Motion was sought on 28 July 1993. C
251 members voted in support, while 265 voted against the Motion. It
was alleged that certain MPs agreed to and did receive bribes from
certain other MPs. A prosecution was launched against the bribe givers
and the bribe takers and cognizance was taken by the Special Judge,
Delhi.
D
37. 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.
On the interpretation of Article 105(3), the judgment of Justice SP
Bharucha, speaking for himself and Justice Rajendra Babu, received E
the concurrence of Justice GN Ray. The charge against the bribe givers,
who were MPs, was in regard to the commission of offences punishable
under the PC Act or the abetment of those offences. Justice SP Bharucha
in the course of his judgment held that Article 105(2) protects an MP
against proceedings in court “that relate to, or concern, or have a F
connection or nexus with anything said or a vote given, by him in
Parliament”. The judgment of the majority on this aspect held:
“136. It is difficult to agree with the learned Attorney General
that though the words “in respect of” must receive a broad
meaning, the protection under Article 105(2) is limited to court G
proceedings that impugn the speech that is given or the vote that
is cast or arises thereout or that the object of the protection would
be fully satisfied thereby. The object of the protection is to enable
Members to speak their mind in Parliament and vote in the same
way, freed of the fear of being made answerable on that account
in a court of law. It is not enough that Members should be protected H
822 SUPREME COURT REPORTS [2021] 6 S.C.R.

A against civil action and criminal proceedings, the cause of action
of which is their speech or their vote. To enable Members to
participate fearlessly in parliamentary debates, Members
need the wider protection of immunity against all civil and
criminal proceedings that bear a nexus to their speech or
vote. It is for that reason that a Member is not “liable to any
B
proceedings in any court in respect of anything said or any vote
given by him”. Article 105(2) does not say, which it would have if
the learned Attorney General were right, that a Member is not
liable for what he has said or how he has voted. While imputing
no such motive to the present prosecution, it is not difficult to
C envisage a Member who has made a speech or cast a vote that is
not to the liking of the powers that be being troubled by a
prosecution alleging that he had been party to an agreement and
conspiracy to achieve a certain result in Parliament and had been
paid a bribe.”
D (emphasis supplied)
38. Justice SC Agrawal and Dr Justice AS Anand reached a
contrary conclusion on the subject:
“98. On the basis of the aforesaid discussion we arrive at the
following conclusion:
E
1. A Member of Parliament does not enjoy immunity under Article
105(2) or under Article 105(3) of the Constitution from being
prosecuted before a criminal court for an offence involving offer
or acceptance of bribe for the purpose of speaking or by giving
his vote in Parliament or in any committees thereof.
F
2. A Member of Parliament is a public servant under Section 2(c)
of the Prevention of Corruption Act, 1988.
3. Since there is no authority competent to remove a Member of
Parliament and to grant sanction for his prosecution under Section
19(1) of the Prevention of Corruption Act, 1988, the court can
G
take cognizance of the offences mentioned in Section 19(1) in the
absence of sanction but till provision is made by Parliament in that
regard by suitable amendment in the law, the prosecuting agency,
before filing a charge-sheet in respect of an offence punishable
under Sections 7, 10, 11, 13 and 15 of the 1988 Act against a
H
THE STATE OF KERALA v. K. AJITH & ORS. 823
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Member of Parliament in a criminal court, shall obtain the A
permission of the Chairman of the Rajya Sabha/Speaker of the
Lok Sabha, as the case may be.”
39. The view of Justice SC Agrawal and Dr Justice AS Anand on
the construction of Article 105 (2) and Article 105(3) was however the
minority view since Justice GN Ray had concurred with the view of B
Justice SP Bharucha and Justice Rajendra Babu on this aspect. Analyzing
the decision of the majority led by the judgment of Justice SP Bharucha,
the stand out feature is this: the charge against the alleged bribe takers
was that they were party to a criminal conspiracy in pursuance of which
they had agreed to accept bribes to defeat the No Confidence Motion
on the floor of the House. In pursuance of the conspiracy, it was alleged C
that the bribe-givers had passed on bribes to the alleged bribe takers. It
was in this context that the judgment noted:
“134…The nexus between the alleged conspiracy and bribe and
the no-confidence motion is explicit. The charge is that the alleged
bribe-takers received the bribes to secure the defeat of the no- D
confidence motion.”
40. Thus, the Court observed that the connection between the
alleged conspiracy, the bribe and the No Confidence Motion was explicit,
and came to the conclusion that the alleged bribe takers received the
bribe to manipulate their votes to secure the defeat of the No Confidence E
Motion. It was in this context that the Court observed that the expression
“in respect of” under Article 105(2) must receive a broad meaning and
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. F
41. 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 Sabha31. The case has become known
in popular lore as the “cash for query case”, where a sting operation on
a private channel depicted certain MPs accepting money either directly G
or through middlemen as consideration for raising questions in the House.
Similarly, another channel carried a telecast alleging improper conduct
of an MP in relation to the implementation of the MPLADS Scheme.
Following an enquiry by the committees of the House, these MPs were
31
(2007) 3 SCC 184. H
824 SUPREME COURT REPORTS [2021] 6 S.C.R.

A expelled. This led to the institution of writ petitions challenging the
expulsion. In that context, the issues which were for determination were:
“1. Does this Court, within the constitutional scheme, have the
jurisdiction to decide the content and scope of powers, privileges
and immunities of the legislatures and its Members?
B 2. If the first question is answered in the affirmative, can it be
found that the powers and privileges of the legislatures in India, in
particular with reference to Article 105, include the power of
expulsion of their Members?
3. In the event of such power of expulsion being found, does this
C Court have the jurisdiction to interfere in the exercise of the said
power or privilege conferred on Parliament and its Members or
committees and, if so, is this jurisdiction circumscribed by certain
limits?”
Chief Justice Y K Sabharwal speaking for the majority (Justice C
D K Thaker concurring) held that:
“62. In view of the above clear enunciation of law by Constitution
Benches of this Court in case after case, there ought not be any
doubt left that whenever Parliament, or for that matter any State
Legislature, claims any power or privilege in terms of the provisions
E contained in Article 105(3), or Article 194(3), as the case may be,
it is the Court which has the authority and the jurisdiction
to examine, on grievance being brought before it, to find
out if the particular power or privilege that has been claimed
or asserted by the legislature is one that was contemplated
F by the said constitutional provisions or, to put it simply, if it
was such a power or privilege as can be said to have been
vested in the House of Commons of the Parliament of the
United Kingdom as on the date of commencement of the
Constitution of India so as to become available to the Indian
Legislatures.”
G (emphasis supplied)
42. 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
H on the anvil of the constitutional provision. The Constitution Bench held
THE STATE OF KERALA v. K. AJITH & ORS. 825
[DR. DHANANJAYA Y CHANDRACHUD, J.]

that neither Parliament nor the State legislatures in India can assert the A
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 therefore emphasizes the doctrine of constitutional
supremacy in India as distinct from parliamentary supremacy in the UK.
43. A three judge Bench of this Court has made a distinction B
between legislative functions and non-legislative functions of the members
of the House for determination of the scope of the privileges. In
Lokayukta, Justice Ripusudan Dayal (Retired) (supra), the
petitioner initiated action against certain officers of the State Legislative
Assembly for indulging in corruption relating to construction work and
initiated criminal proceedings against the officials. In turn, the Speaker C
of the House issued a letter to the petitioner alleging breach of privilege,
against which the petitioner filed a writ petition before this Court. Allowing
the petition, Chief Justice P. Sathasivam speaking for a three-Judge Bench
observed that privileges are available only as far as they are essential
for the members to carry out their legislative functions. He held that the D
scope of the privileges must be determined based on the need for them.
The Court observed:
“51. The scope of the privileges enjoyed depends upon
the need for privileges i.e. why they have been provided
for. The basic premise for the privileges enjoyed by the E
Members is to allow them to perform their functions as
Members and no hindrance is caused to the functioning of
the House. The Committee of Privileges of the Tenth Lok Sabha,
noted the main arguments that have been advanced in favour of
codification, some of which are as follows:..[…]
F
52. It is clear that the basic concept is that the privileges
are those rights without which the House cannot perform
its legislative functions. They do not exempt the Members
from their obligations under any statute which continues to
apply to them like any other law applicable to ordinary
citizens. Thus, enquiry or investigation into an allegation of G
corruption against some officers of the Legislative Assembly
cannot be said to interfere with the legislative functions of the
Assembly. No one enjoys any privilege against criminal
prosecution.”
(emphasis supplied) H
826 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 44. Having detailed the position of law above, the next section
would discuss the validity of the argument invoking the immunities and
privileges under Article 194 as a hypothesis for barring legal proceedings
for acts of destruction of public property in the present case.
C.3 Privilege to commit acts of public destruction – an
B incongruous proposition
45. The essence of this case is whether the application made by
the Public Prosecutor under Section 321 of the CrPC falls within the
interpretative understanding of Section 321 of the CrPC as elucidated
by the decisions of this Court. The CJM held that the application could
C not be allowed and the High Court in the exercise of its revisional
jurisdiction affirmed the finding of the CJM. 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). The Court noted that it had been “the
D declared policy of this Court not to embark upon a roving enquiry into
the facts and evidence of case like this”, particularly because any
observation on merits or facts and evidence will cause serious prejudice
to parties at trial. Hence, in approaching the submissions of the counsel,
it is necessary to begin with a caution and caveat that in evaluating them
E the Court must not transcend the limits of its jurisdiction under Article
136. Both the CJM and the High Court have come to the conclusion that
the application for withdrawal made by the public prosecutor under Section
321 should not be allowed. The issue is whether these findings suffer
from a palpable error or perversity which would warrant interference
by this Court.
F
46. We must at the outset clear two grounds raised by the
appellants. First, the High Court in the course of its decision has cited
the observations in the minority opinion of Chief Justice Bhagwati in
Sheonandan Paswan (supra) treating them to be the view of the court.
Undoubtedly, the judgment of the learned Chief Justice expresses a
G minority opinion. The majority view is reflected in the judgement of Justice
V Khalid (speaking for himself and Justice S Natarajan) and in the
concurring opinion of Justice E S Venkataramiah. However, before we
accede to the submission of the appellants to displace the judgment of
the High Court on this count we must advert to whether it is consistent
H with the decision of the majority in Sheonandan Paswan (supra). The
THE STATE OF KERALA v. K. AJITH & ORS. 827
[DR. DHANANJAYA Y CHANDRACHUD, J.]

conclusion of the High Court to affirm the decision of the CJM must, A
therefore, be analysed from prism of the law as it has been enunciated
consistently in several decisions before and after the judgment of the
Constitution Bench and of course, in the decision in Sheonandan Paswan
(supra). The second aspect which must be borne in mind is that the
High Court has accepted the fact that no mala fides can be attributed to
B
the application for withdrawal. We will consider whether this is a
circumstance which in and of itself should have resulted in allowing the
application for the grant of permission for withdrawal of the prosecution
under Section 321. The issue on this aspect of the case is whether a
finding that there is no absence of good faith must inexorably result in
allowing an application under Section 321 bereft of the other considerations C
which must underlie such a decision.
47. Shorn of detail, the allegations against the accused need to be
recapitulated. At the material time in March 2015, the respondent-accused
were elected members of the State Legislative Assembly belonging to
the party in opposition. On 13 March 2015, when the Finance Minister D
was presenting the annual budget, the MLAs in question are alleged to
have disrupted the presentation of the budget. To them is attributed the
acts of climbing on to the dais of the Speaker and damaging furniture
and articles including the Speaker’s chair, computer, mic, emergency
lamp and an electric panel amounting to a loss of Rs.2,20,093. Following
this incident, Crime No. 236 of 2015 was registered at the behest of the E
Legislative Secretary of the State Assembly for offences punishable
under Sections 42732 and 44733 read with Section 34 of the IPC and
Section 3(1) of the Prevention of Damage to Public Property Act 1984.
A final report under Section 173 of the CrPC was submitted by the
police and cognizance was taken by the CJM. F
48. The Prevention of Damage to Public Property Act 1984 was
enacted by Parliament “to provide for prevention of damage to public
property and for matters connected therewith”. Section 2(b) defines the
expression ‘public property’ thus:
32
“427. Mischief causing damage to the amount of fifty rupees.—Whoever commits
G
mischief and thereby causes loss or damage to the amount of fifty rupees or upwards,
shall be punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both”.
33
“447. Punishment for criminal trespass.—Whoever commits criminal trespass shall
be punished with imprisonment of either description for a term which may extend to
three months, or with fine which may extend to five hundred rupees, or with both”. H
828 SUPREME COURT REPORTS [2021] 6 S.C.R.

A “(b) “public property” means any property, whether immovable
or movable (including any machinery) which is owned by, or in
the possession of, or under the control of—
(i) the Central Government; or
(ii) any State Government; or
B (iii) any local authority; or (iv) any corporation established by, or
under, a Central, Provincial or State Act; or
(v) any company as defined in section 617 of the Companies Act,
1956 (1 of 1956); or
(vi) any institution, concern or undertaking which the Central
C
Government may, by notification in the Official Gazette, specify
in this behalf:
Provided that the Central Government shall not specify any
institution, concern or undertaking under this sub-clause unless
such institution, concern or undertaking is financed wholly or
D substantially by funds provided directly or indirectly by the Central
Government or by one or more State Governments, or partly by
the Central Government and partly by one or more State
Governments.”
The Statement of Objects and Reasons contains the rationale for
E the Ordinance which was promulgated by the President on the subject,
which was enacted as a statute:
“With a view to curb acts of vandalism and damage to public
property including destruction and damage caused during riots
and public commotion, a need was felt to strengthen the law to
F enable the authorities to deal effectively with cases of damage to
public property. Accordingly, the President promulgated on 28th
January, 1984, the Prevention of Damage to Public Property
Ordinance, 1984 (No. 3 of 1984).”
Section 3 which has been invoked in the present case is in the
G following terms:
“3. Mischief causing damage to public property.—
(1) Whoever commits mischief by doing any act in respect of any
public property, other than public property of the nature referred
to in sub-section (2), shall be punished with imprisonment for a
H term which may extend to five years and with fine.
THE STATE OF KERALA v. K. AJITH & ORS. 829
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(2) Whoever commits mischief by doing any act in respect of any A
public property being—
(a) any building, installation or other property used in connection
with the production, distribution or supply of water, light, power or
energy;
(b) any oil installations; B

(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of tele-communications,
or any building, installation or other property used in connection C
therewith, shall be punished with rigorous imprisonment for a term
which shall not be less than six months, but which may extend to
five years and with fine:
Provided that the court may, for reasons to be recorded in its
judgment, award a sentence of imprisonment for a term of less D
than six months.”
The expression “mischief” is defined in Section 2(a) to have the
meaning which is ascribed to it in Section 42534 of the IPC:

34
“425. Mischief.—Whoever with intent to cause, or knowing that he is likely to E
cause, wrongful loss or damage to the public or to any person, causes the destruction of
any property, or any such change in any property or in the situation thereof as destroys
or diminishes its value or utility, or affects it injuriously, commits “mischief””.
Explanation 1.—It is not essential to the offence of mischief that the offender should
intend to cause loss or damage to the owner of the property injured or destroyed. It is
sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or
damage to any person by injuring any property, whether it belongs to that person or F
not.
Explanation 2.—Mischief may be committed by an act affecting property belonging to
the person who commits the act, or to that person and others jointly.
(a) A voluntarily burns a valuable security belonging to Z intending to cause wrongful
loss to Z. A has committed mischief.
(b) A introduces water in to an ice-house belonging to Z and thus causes the ice to melt,
G
intending wrongful loss to Z. A has committed mischief.
(c) A voluntarily throws into a river a ring belonging to Z, with the intention of thereby
causing wrongful loss to Z. A has committed mischief.
(d) A, knowing that his effects are about to be taken in execution in order to satisfy a
debt due from him to Z, destroys those effects, with the intention of thereby preventing
Z from obtaining satisfaction of the debt, and of thus causing damage to Z. A has
committed mischief. H
830 SUPREME COURT REPORTS [2021] 6 S.C.R.

A “(a) “mischief” shall have the same meaning as in section 425 of
the Indian Penal Code (45 of 1860);”
The ingredients of Section 425 are:
(i) causing destruction of any property (a) with an intent to
cause; or (b) knowing of the likelihood to cause wrongful
B loss or damage to the public or to any person; or
(ii) any change in the property or its situation which destroys
or diminishes its value or utility or affects it injuriously.
49. The Prevention of Damage to Public Property Act 1984 seeks
C to penalise inter alia the commission of mischief (as defined in Section
425 of the IPC) by doing any act in respect of public property. Sub-
Section (1) of Section 3 makes the offence punishable with imprisonment
for a term which may extend to five years and with fine. Sub-Section
(2) covers certain specific installations in the case of which an act of
mischief carries a minimum term of imprisonment of six months but
D which may extend to five years and a fine. Section 535 embodies a special
provision for bail. Section 636 makes it clear that the law is in addition to
and not in derogation of any other law for the time being in force.
50. The gravity of the offence involving a destruction of public
property was considered by this Court in Re: Destruction of Public
E and Private Properties37, where it took suo motu cognizance to remedy
the large-scale destruction of public and private properties in agitations,
(e) A having insured a ship, voluntarily causes the same to be cast away, with the
intention of causing damage to the underwriters. A has committed mischief.
(f) A causes a ship to be cast away, intending thereby to cause damage to Z who has lent
F money on bottomry on the ship. A has committed mischief.
(g) A, having joint property with Z in a horse, shoots the horse, intending thereby to
cause wrongful loss to Z. A has committed mischief.
(h) A causes cattle to enter upon a field belonging to Z, intending to cause and knowing
that he is likely to cause damage to Z’s crop. A has committed mischief.
35
“5. Special provisions regarding bail.—No person accused or convicted of an offence
punishable under section 3 or section 4 shall, if in custody, be released on bail or on his
G own bond unless the prosecution has been given an opportunity to oppose the
application for such release.”
36
“6. Saving.—The provisions of this Act shall be in addition to, and not in derogation
of, the provisions of any other law for the time being in force, and nothing contained in
this Act shall exempt any person from any proceeding (whether by way of investigation
or otherwise) which might apart from this Act, be instituted or taken against him.”
37
H 2009 5 SCC 212.
THE STATE OF KERALA v. K. AJITH & ORS. 831
[DR. DHANANJAYA Y CHANDRACHUD, J.]

bandhs, hartals and other forms of ‘protest’. The Court formed two A
committees chaired by Justice KT Thomas (former judge of this Court)
and Mr Fali S Nariman, Senior counsel and adopted the recommendations
of both the committees in laying down specific guidelines for investigation
and prosecution of offences involving destruction of public property,
assessment of damages and determination of compensation in cases
B
involving destruction of property. In the more recent decision
Kodungallur Film Society and Another vs Union of India38, this
Court noted that the guidelines in Re: Destruction of Public and
Private Properties (supra) have been considered by the Union of
India and a draft Bill for initiating legislative changes along the lines of
the recommendations is under consideration. The Court also issued C
guidelines on preventive measures to curb mob violence, determining
compensation and fixing liability for offences, and in regard to the
responsibility of police officials for investigation of such crimes.
51. 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 D
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. E

52. 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 F
immunity to stand above the sanctions of the criminal law, which applies
equally to all citizens. The purpose and object of the Act of 1984 was to
curb acts of vandalism and damage to public property including (but not
limited to) destruction and damage caused during riots and public protests.
53. A member of the legislature, the opposition included, has a G
right to protest on the floor of the legislature. The right to do so is implicit
in Article 105(1) in its application to Parliament and Article 194(1) in its
application to the State Legislatures. The first clauses of both these
Articles contain a mandate that “there shall be freedom of speech” in
38
2018 10 SCC 713. H
832 SUPREME COURT REPORTS [2021] 6 S.C.R.

A Parliament and in the legislature of every State. Nonetheless, the freedom
of speech which is protected by the first clause is subject to the provisions
of the Constitution and to the rules and standing orders regulating the
procedure of the legislature. The second clause provides immunity against
liability “to any proceedings in any court” in respect of “anything said or
any vote given” in the legislature or any committee. Moreover, no person
B
is to be liable in respect of the publication by or under the authority of
Parliament or of the House of the State Legislature of any report, paper,
votes or proceedings. We have earlier traced the history of Clause (3)
of Article 194 as it originally stood under which the powers, privileges
and immunities of the members of Parliament and of the State
C Legislatures were those which were recognised for Members of the
House of Commons immediately before the enforcement of the
Constitution. This provision, as we have seen, was sought to be amended
by the Forty Second Amendment and was ultimately amended by the
Forty Fourth Amendment, from which it derives its present form. It
recognises the powers, privilege and immunities as they stood immediately
D
before the enforcement of Section 26 of the Forty Fourth Amendment.
54. Tracing the history of the privileges and immunities enjoyed
by members of the House of Commons, Erskine May makes a doctrinal
division of the position in the UK into various phases. However, the
stand out feature which emerges from the privileges and immunities of
E the members of the House of Commons is the absence of an immunity
from the application of criminal law. This jurisprudential development
began in Sir John Elliot (supra), was developed by Justice Stephen in
Bradlaugh (supra), and cemented by the UK Supreme Court in Chaytor
(supra).
F 55. There is a valid rationale for this position. 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. This has been emphasized by the three judge Bench in
Lokayukta, Justice Ripusudan Dayal (supra). The oath of office
G 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
H Constitution recognizes privileges and immunities. These privileges bear
THE STATE OF KERALA v. K. AJITH & ORS. 833
[DR. DHANANJAYA Y CHANDRACHUD, J.]

a functional relationship to the discharge of the functions of a legislator. A
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
B
State. In essence, Article 19(1)(a) recognizes an individual right to the
freedom of speech and expression as vested in all citizens. Articles 105(1)
and 194(1) speak about the freedom of speech in the Parliament and
State Legislatures and in that context must necessarily encompass the
creation of an environment in which free speech can be exercised within
their precincts. The recognition that there shall be freedom of speech in C
Parliament and the State Legislatures underlines the need to ensure the
existence of conditions in which elected representatives can perform
their duties and functions effectively. Those duties and functions are as
much a matter of duty and trust as they are of a right inhering in the
representatives who are chosen by the people. We miss the wood for
D
the trees if we focus on rights without the corresponding duties cast
upon elected public representatives.
56. 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 E
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
is based on a fundamental misconception of the constitutional provisions
contained in Article 194. The Public Prosecutor seems to have been F
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.
G
57. 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. At the same time, H
834 SUPREME COURT REPORTS [2021] 6 S.C.R.

A the majority observed that there must be a nexus between the act or
incident (which in that case was the act of bribery in the context of the
votes cast on a motion of no-confidence) and the freedom of speech or
to vote. It was emphasised that the bribe was given to manipulate the
votes of the MPs and thus, it bore a close nexus to the freedom protected
under Article 105(2). The case however, did not deal with the ambit of
B
the privilege of ‘freedom of speech’ provided to the members of the
House. It was in Lokayukta, Justice Ripusudan Dayal (Retired)
(supra) that a three judge Bench of this Court laid down the law for the
identification of the content of the privileges. It was held that the members
shall only possess such privileges that are essential for undertaking their
C legislative functions. 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.
D
58. The test which has been laid down in the decisions of this
Court commencing with Ram Naresh Pandey (supra) in 1957, spanning
decisions over the last 65 years is consistent. The true function of the
court when an application under Section 321 is filed is to ensure that the
executive function of the public prosecutor has not been improperly
E exercised or that it is not an attempt to interfere with the normal course
of justice for illegitimate reasons or purposes. The court will grant its
consent if it is satisfied that it sub-serves the administration of justice
and the purpose of seeking it is not extraneous to the vindication of the
law. It is the broad ends of public justice that must guide the decision.
F The public prosecutor is duty bound to act independently and ensure that
they have applied their minds to the essential purpose which governs the
exercise of the powers. Whether the public prosecutor has acted in
good faith is not in itself dispositive of the issue as to whether consent
should be given. This is clear from the judgment in Sheonandan Paswan
(supra). In paragraph 73 of the judgment, Justice V Khalid has
G specifically observed that the court must scrutinize “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”. Good faith is one
and not the only consideration. The court must also scrutinize whether
an application suffers from such improprieties or illegalities as to cause
H manifest injustice if consent is given.
THE STATE OF KERALA v. K. AJITH & ORS. 835
[DR. DHANANJAYA Y CHANDRACHUD, J.]

59. On the touchstone of these principles, there can be no manner A
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
B
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. To allow the prosecution to be withdrawn in
the face of these allegations, in respect of which upon investigation a
final report has been submitted under Section 173 of the CrPC and C
cognizance has been taken, would amount to an interference with the
normal course of justice for illegitimate reasons. Such an action is clearly
extraneous to the vindication of the law to which all organs of the
executive are bound. Hence, the mere finding of the High Court that
there is no absence of good faith would not result in allowing the application
D
as a necessary consequence, by ignoring the cause of public justice and
the need to observe probity in public life. The members of the State
Legislature have in their character as elected representatives a public
trust impressed upon the discharge of their duties. Allowing the
prosecution to be withdrawn would only result in a singular result, which
is that the elected representatives are exempt from the mandate of E
criminal law. This cannot be countenanced as being in aid of the broad
ends of public justice.
60. We shall now deal with two other arguments raised by the
appellants and the respondent-accused : First, whether the sanction of
the Speaker of the House is required for prosecuting MLAs for F
occurrences within the precincts of the Assembly and second, whether
the members are protected by privilege under Article 194(2) which is
available in case of publication of proceedings that take place inside the
House.
C.4 Sanction of Speaker G
61. The Speaker of the legislative assembly is appointed under
Article 178 of the Constitution. The Speaker is the presiding officer of
the House, and has complete autonomy to make decisions on the
functioning of the house and maintenance of decorum of the House.
Chapter IV of the Rules of Procedure and Conduct of Business in the H
836 SUPREME COURT REPORTS [2021] 6 S.C.R.

A Kerala Legislative Assembly39 states that the Speaker presides over the
House, decides on the sittings and adjournments of the House, and makes
arrangements for carrying out the smooth conduct of the business of the
House.
62. The appellants have relied on P.V. Narasimha Rao (supra)
B 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. We are
unable to accept this submission. The decision of this Court in P.V.
Narasimha Rao (supra) and the factual background within which it
arose has been discussed earlier. In that case MPs were accused of
C committing offences under the PC Act. Section 19 of the PC Act
specifically provides that cognisance of offences committed by a public
servant under Sections 7, 10, 11, 13 and 15 can only be taken with the
prior sanction of the authority competent to remove a public servant
from office40. In light of this section, the majority in P.V. Narasimha
D Rao (supra) (Justice S C Agarwal speaking for himself and Dr Justice
A S Anand with Justice G N Ray concurring on this point) held that
since MPs are public servants, prior sanction is required to initiate a
prosecution against them. The Court also held that since there is no
authority competent to remove an MP, the power to grant a sanction to
prosecute an MP would reside in the Speaker of the House. The
E observations of the Constitution Bench regarding prior sanction were
made with specific reference to Section 19 of the PC Act and cannot be
construed to imply a broader proposition of law that sanction is a pre-
requisite for initiating a prosecution against the members of the House,
in this case of the Kerala Legislative Assembly for any offences
F committed within the House. In fact, this contention was raised before
the Constitution Bench in P.V. Narasimha Rao (supra) but was rejected.
It was argued, relying on the decision in K. Veeraswami vs Union of
39
“Kerala Assembly Rules”.
40
“19. (1) No court shall take cognizance of an offence punishable under sections 7, 10,
G 11, 13 and 15 alleged to have been committed by a public servant, except with the
previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013
(1 of 2014)]— (a) in the case of a person who is employed in connection with the
affairs of the Union and is not removable from his office save by or with the sanction
of the Central Government, of that Government; (b) in the case of a person who is
employed in connection with the affairs of a State and is not removable from his office
save by or with the sanction of the State Government, of that Government; (c) in the
H case of any other person, of the authority competent to remove him from his office.”
THE STATE OF KERALA v. K. AJITH & ORS. 837
[DR. DHANANJAYA Y CHANDRACHUD, J.]

India,41 that the no criminal proceedings can be launched against an A
MLA without receiving the sanction of the Speaker. In Veeraswami
(supra), the appellant was the Chief Justice of the Madras High Court
when he was charged with criminal misconduct under the Prevention of
Corruption Act, 1947. It was laid down that a criminal case cannot be
registered against a judge of the High Court or the Supreme Court unless
B
the Chief Justice of India is consulted. Justice Shetty (for himself and
Justice Venkatachalliah) observed thus:
“60….Secondly, the Chief Justice being the head of the judiciary
is primarily concerned with the integrity and impartiality of the
judiciary. Hence it is necessary that the Chief Justice of India is
not kept out of the picture of any criminal case contemplated C
against a Judge. He would be in a better position to give his opinion
in the case and consultation with the Chief Justice of India would
be of immense assistance to the government in coming to the
right conclusion. We therefore, direct that no criminal case
shall be registered under Section 154, CrPC against a Judge D
of the High Court, Chief Justice of High Court or Judge of
the Supreme Court unless the Chief Justice of India is
consulted in the matter. Due regard must be given by the
government to the opinion expressed by the Chief Justice. If the
Chief Justice is of opinion that it is not a fit case for
proceeding under the Act, the case shall not be registered. E
If the Chief Justice of India himself is the person against whom
the allegations of criminal misconduct are received the government
shall consult any other Judge or Judges of the Supreme Court.
There shall be similar consultation at the stage of examining
the question of granting sanction for prosecution and it shall F
be necessary and appropriate that the question of sanction
be guided by and in accordance with the advice of the Chief
Justice of India. Accordingly the directions shall go to the
government. These directions, in our opinion, would allay the
apprehension of all concerned that the Act is likely to be misused
by the executive for collateral purpose.” G

(emphasis supplied)
The Court in PV Narasimha Rao (supra) distinguished the
instance of a criminal charge instituted against an MP from that instituted
41
(1991) 3 SCC 655. H
838 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 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:
“176. It is convenient now to notice a submission made by Mr
B Sibal based upon Veeraswami case [(1991) 3 SCC 655 : 1991
SCC (Cri) 734 : (1991) 3 SCR 189] . He urged that just as this
Court had there directed that no criminal prosecution should be
launched against a Judge of a High Court or the Supreme Court
without first consulting the Chief Justice of India, so we should
direct that no criminal prosecution should be launched against a
C Member of Parliament without first consulting the Speaker. As
the majority judgment makes clear, this direction was
considered necessary to secure the independence of the
judiciary and in the light of the “apprehension that the
executive being the largest litigant is likely to abuse the
D power to prosecute the Judges”. Members of Parliament
do not stand in a comparable position. They do not have to
decide day after day disputes between the citizen and the
executive. They do not need the additional protection that
the Judges require to perform their constitutional duty of
decision-making without fear or favour.”
E
(emphasis supplied)
63. It is clear from the above discussion that the decision of this
Court in P.V. Narasimha Rao (supra) does not lend support to the
argument of the appellants that the sanction of the Speaker ought to
have been obtained. The appellants have further relied on Section 197(1)
F 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. Section 197(1) of the CrPC 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
G the Government is received. The provision reads as under:
“197. Prosecution of Judges and public servants:
(1) When any person who is or was a Judge or Magistrate or a
public servant not removable from his office save by or with
the sanction of the Government is accused of any offence
H alleged to have been committed by him while acting or purporting
THE STATE OF KERALA v. K. AJITH & ORS. 839
[DR. DHANANJAYA Y CHANDRACHUD, J.]

to act in the discharge of his official duty, no Court shall take A
cognizance of such offence except with the previous
sanction-…”
(emphasis supplied)
64. 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 B
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 Xth 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 C
not for the initiation of the prosecution.
65. The appellants have relied on Satish Chandra vs Speaker,
Lok Sabha42 to urge that the powers of the Speaker to control and
regulate the House encompasses the power of sanction for initiation of
proceedings against members of the Assembly. We find that the dictum D
in Satish Chandra (supra) also does not come to the aid of the appellants.
In Satish Chandra (supra), a petition was instituted before this Court
under Article 32 of the Constitution seeking a direction to the Speaker of
the Lok Sabha and the Chairman of the Rajya Sabha to withhold the
payment of salary, perquisites and privileges of MPs disrupting the House E
and to try them under the PC Act if they continue to avail of them. The
reliefs sought included their disqualification from membership of the
House and debarment from contesting future elections. The prayer was
essentially to direct the Speaker of the House on the manner of conduct
of the proceedings. It was in this context that the two judge bench of this
court consisting of Chief Justice P Sathasivam and Justice Ranjana P F
Desai dismissed the petition relying on Ramdas Athawale (5) vs Union
of India43 where it was held:
“He (the speaker) is the interpreter of its rules and procedure,
and is invested with the power to control and regulate the course
of debate and maintain order.” G
In Ramdas Athawale (supra), the question for consideration was
whether the decision of the Speaker directing resumption of the sitting
of the House can be subject to judicial review. Therefore, in both Ramdas
42
(2014) 2 SCC 178.
43
(2010) 4 SCC 1. H
840 SUPREME COURT REPORTS [2021] 6 S.C.R.

A Athawale (supra) and Satish Chandra (supra), the Court was faced
with the question of judicial review of the actions of the Speaker of the
House. In both the cases the Court limited its power to review so as to
not interfere in the ordinary functioning and conduct of the House in
pursuance of Article 122(2) which states that the Speaker’s power to
regulate the proceedings and conduct of business is final and binding. It
B
would be a stretch however, to argue that these observations of the
Court grant the Speaker a carte blanche to decide if and when criminal
proceedings should be initiated against MLAs. The State of Kerala, unlike
the State of Maharashtra has not amended the relevant provisions of the
CrPC warranting the sanction of the Speaker for the initiation of criminal
C proceedings against MLA’s. The Code of Criminal Procedure
(Maharashtra Amendment) Act, 2015 was enacted amending Sections
156 and 190 of the CrPC. The amended provisions state that no Magistrate
can order investigation and take cognizance for an offence alleged to
have been committed by any person who is or was a pubic servant,
‘while acting or purporting to act in discharge of his official duties’ ,
D
without the previous sanction of the sanctioning authority. Moreover,
even in such a case sanction is necessary when the act was while acting
or purporting to act in the discharge of official duties. When no provisions
warranting the sanction of the Speaker-either specific to the offence
(such as the PC Act) or specific to the class (such as the Maharashtra
E Amendment Act, 2015) are enacted, the argument of the appellant stands
on fragile grounds. For the above mentioned reasons, the contention that
the prosecution against the respondent-accused is vitiated for want of
sanction of the Speaker is rejected.
C.5 Claiming privilege and inadmissibility of video
F recordings as evidence
66. During the course of his submissions, Mr Ranjit Kumar, learned
Senior counsel for the appellants, referred to a video recording of the
incident that occurred on 13 March 2015. The video was procured by
the investigating authorities from the Electronic Control Room of the
G House. The video recording also finds mention in the withdrawal petition
filed by the Public Prosecutor, where the 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. In this regard, Mr Ranjit Kumar has made two distinct
submissions, which require our consideration:
H
THE STATE OF KERALA v. K. AJITH & ORS. 841
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(i) The incident occurred on the floor of the House, and is a 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. Based
on this, the video which recorded the incident is a publication
B
of the proceedings of the House and no MLA can face
legal action for these proceedings; and
(ii) The video recording of the incident belongs to the House
and a copy of the video footage could not have been obtained
without the sanction of the Speaker, who is the custodian
C
of the House. In addition to this, the video recording also
lacks certification under Section 65B of the Indian Evidence
Act 1872. Without the video recording, there is insufficient
evidence available with the prosecution to succeed in a trial
against the respondent- accused. It is urged that in light of
this, a withdrawal of prosecution of this case is warranted. D
67. We shall deal with each of these submissions in turn.
C.5.1 Immunity from publication of proceedings of the House
68. Article 194(1) of the Constitution provides that there shall be
freedom of speech in the Legislature of every State. Clause 2 of Article E
194, specifically provides that no member of the State Legislature shall
be liable for any legal proceedings in respect of anything said or any
vote given by him in the Legislature or any committee thereof, and no
person shall be so liable in respect of the publication by or under the
authority of a House of such a Legislature of any report, paper, votes or F
proceedings. Mr Ranjit Kumar has 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.
G
69. 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.
H
842 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 70. The first question to be addressed in this regard is the meaning
of the phrase ‘publication’ under Article 194(2) of the Constitution. The
Oxford Dictionary defines the term ‘publication’ as the “act of printing a
book, a magazine etc. and making it available to the public.” Thus, in
common parlance, publication refers to print media. At the time of
enactment of the Constitution, the members of the Constituent Assembly
B
would not have envisioned the possibility of broadcasting of the
proceedings of the House through the aid of technology as it exists at
present. The discussions in the Constituent Assembly leading up to the
adoption of the Constitution and the debates were recorded in a typed
format and published. In line with the Constituent Assembly (Legislative)
C Rules of Procedure and Conduct of Business, which were in force till
the adoption of the Constitution, the Lok Sabha and Rajya Sabha also
adopted Rules of Procedure and Conduct of Business. Rule 379 of the
Lok Sabha Rules records that the Secretary-General shall prepare a full
report of the proceedings of the House and publish it in such form and
D manner as the Speaker directs. Similar rules have been adopted by various
State Legislatures, including the Kerala Legislative Assembly which
adopted the Kerala Assembly Rules. Rule 306 of the Kerala Assembly
Rules is pari materia to Rule 379 of the Lok Sabha Rules. Thus, when
the Constitution was enacted, the phrase ‘publication’ was intended to
mean the publication of proceedings in the printed format.
E
71. With the advent of technology, proceedings of Parliament and
the Legislative Assembly are broadcast for public viewership, with an
aim to promote accessibility to debates in the legislative body.
Correspondingly, the Union and State Governments enacted legislation
and issued instructions to regulate the field of broadcasting of legislative
F proceedings. In 1977, the Parliamentary Proceedings (Protection of
Publication) Act, 197744 was enacted. Section 3 of the Act states that no
person shall be liable to any civil or criminal proceeding for a substantially
true publication in a newspaper of the proceedings in the House, unless
the publication is not for public good. Section 4 of the Act extended the
G protection to broadcasting of these proceedings. Subsequently, the
Constitution was amended by the Constitution (Forty fourth) Amendment
Act, 1978 to include Article 361A. Article 361A amplifies the protection
provided in the 1977 Act. Article 361A reads as follows:

H 44
“1977 Act”
THE STATE OF KERALA v. K. AJITH & ORS. 843
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“361-A . Protection of publication of proceedings of Parliament A
and State Legislatures.—(1) No person shall be liable to any
proceedings, civil or criminal, in any court in respect of the
publication in a newspaper of a substantially true report of any
proceedings of either House of Parliament or the Legislative
Assembly, or, as the case may be, either House of the Legislature,
B
of a State, unless the publication is proved to have been made
with malice: Provided that nothing in this clause shall apply to the
publication of any report of the proceedings of a secret sitting of
either House of Parliament or the Legislative Assembly, or, as the
case may be, either House of the Legislature, of a State.
(2) Clause (1) shall apply in relation to reports or matters C
broadcast by means of wireless telegraphy as part of any
programme or service provided by means of a broadcasting
station as it applies in relation to reports or matters
published in a newspaper.
Explanation.—In this article, “newspaper” includes a news agency D
report containing material for publication in a newspaper.”
(emphasis supplied)
In May 2002, the Kerala Legislative Assembly issued Instructions
on Broadcasting and Telecasting of Governor’s Address and Assembly E
Proceedings45 pursuant to Rule 306 of the Kerala Assembly Rules. Thus,
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, though not in the form of print,
which serves the same purpose of disseminating information to the public F
as publication in the printed format.
72. We now turn to the second ingredient of Article 194(2), which
is 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 G
channels carried telecasts of snippets of the incident of 13 March 2015
on the very same day. The 2002 Instructions permit broadcasting of
proceedings after obtaining the prior permission of the Speaker for
recording. Therefore, if permission for recording the proceedings has
45
“2002 Instructions” H
844 SUPREME COURT REPORTS [2021] 6 S.C.R.

A been provided to the news channels, then the 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. Clause 7 states:
“7. Cameras should not record any interruption/disorder or walk-
B out during the Address. In case of any such eventuality the cameras
shall be focussed only on the dignitary.”
Since the 2002 Instructions grant permission for the recording of
the proceedings subject to conditions such as that mentioned in clause 7,
any recording that contravenes the conditions stipulated is not a recording
C ‘under the authority of the House’. 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
D be granted immunity.
73. In addition to this, it is also worth mentioning that 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.
E Thus, the stored video footage of the incident was not broadcast, or in
other words, 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.
74. Though the argument of the appellants can be rejected at this
F stage, we find it necessary to deal with the third ingredient - that is
whether the incident that transpired on 13 March 2015 was a ‘proceeding’
under Article 194(2), thus bestowing the appellants with absolute immunity.
75. Erskine May defines the phrase ‘parliamentary proceedings’
as follows:
G
“The primary meaning of proceedings, as a technical parliamentary
term, which it had at least as early as the seventeenth century, is
some formal action, usually a decision, taken by the House
in its collective capacity. While business which involves actions
and decisions of the House are clearly proceedings, debate is an
H intrinsic part of that process which is recognised by its
THE STATE OF KERALA v. K. AJITH & ORS. 845
[DR. DHANANJAYA Y CHANDRACHUD, J.]

inclusion in the formulation of article IX. An individual A
Member takes part in a proceeding usually by speech, but
also by various recognized forms of formal action, such as
voting, giving notice of a motion, or presenting a petition
or report from a committee, most of such actions being time
saving substitutes for speaking”46
B
(emphasis supplied)
76. In Attorney General of Ceylon vs de Livera47, Section 14
of the Bribery Act of Ceylon (as Sri Lanka was then called) was in
question before the Judicial Committee of the Privy Council. Section 14
states that an inducement or reward to a member of the House of C
Representatives for doing or forbearing to do any act ‘in his capacity as
such member’ is an offence. While interpreting the phrase ‘in his capacity
as such member’, Viscount Radcliffe referred to Article 9 of the Bill of
Rights 1689 which provides parliamentary privilege. The judgment notes:
“What has come under inquiry on several occasions is the extent D
of the privilege of a member of the House and the complementary
question, what is a ‘proceeding in Parliament’? This is not the
same question as that now before the Board, and there is no
doubt that the proper meaning of the words ‘proceedings
in Parliament’ is influenced by the context in which they
appear in article 9 of the Bill of Rights; but the answer given E
to that somewhat more limited question depends upon a very similar
consideration, in what circumstances and in what situations
is a member of the House exercising his ‘real’ or ‘essential’
function as a member? For, given the proper anxiety of the
House to confine its own or its members’ privileges to the F
minimum infringement of the liberties of others, it is
important to see that those privileges do not cover activities
that are not squarely within a member’s true function.”
(emphasis supplied)
Thus, the test that was laid down for identification of activities G
that fall within the meaning of the word ‘parliamentary proceedings’
was whether the activity/function was a real or essential function of the
member.
46
Supra note 25 at 235.
47
[1963] AC 103. H
846 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 77. In Chaytor (supra), the question before the UK Supreme
Court was the interpretation of the phrase “proceedings in Parliament”.
Elucidating on the meaning of the expression, it was held:
“47. The jurisprudence to which I have referred is sparse and
does not bear directly on the facts of these appeals. It supports
B the proposition, however, that the principal matter to which article
9 is directed is freedom of speech and debate in the Houses of
Parliament and in parliamentary committees. This is where the
core or essential business of Parliament takes place. In
considering whether actions outside the Houses and
committees fall within parliamentary proceedings because
C of their connection to them, it is necessary to consider the
nature of that connection and whether, if such actions do
not enjoy privilege, this is likely to impact adversely on
the core or essential business of Parliament.
48. If this approach is adopted, the submission of claim forms for
D allowances and expenses does not qualify for the protection of
privilege. Scrutiny of claims by the courts will have no adverse
impact on the core or essential business of Parliament, it
will not inhibit debate or freedom of speech. Indeed it will
not inhibit any of the varied activities in which Members of
E Parliament indulge that bear in one way or another on their
parliamentary duties. The only thing that it will inhibit is
the making of dishonest claims.
62. Thus precedent, the views of Parliament and policy all point in
the same direction. Submitting claims for allowances and
F expenses does not form part of, nor is it incidental to, the
core or essential business of Parliament, which consists of
collective deliberation and decision making. The submission
of claims is an activity which is an incident of the administration
of Parliament; it is not part of the proceedings in Parliament. I am
satisfied that Saunders J and the Court of Appeal were right to
G reject the defendants’ reliance on article 9.”
(emphasis supplied)
According to Chaytor (supra), the activities undertaken within
the House are classified into two categories - essential functions and
non-essential functions. The essential function of the House is collective
H
THE STATE OF KERALA v. K. AJITH & ORS. 847
[DR. DHANANJAYA Y CHANDRACHUD, J.]

deliberation and decision making. For an act in the House to be provided A
immunity from legal proceedings, it must either be an essential function
or must affect the exercise of an essential function of the House.
78. This meaning provided to the phrase ‘parliamentary
proceedings’ in Chaytor (supra) and de Livera (supra) finds support
in the text of the Constitution of India. At this stage, we find it imperative B
to refer to other provisions of the Constitution that mention the phrase
‘proceedings’ in reference to the legislative assembly. Article 194(4)
states that the provisions of Articles 194(1), (2) and (3) shall also apply
to anybody who takes part in the ‘proceedings’ of the House. Article
212(1) states that the validity of the ‘proceedings’ in the State Assembly
shall not be called in question on the ground of irregularity of the C
procedure. 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. If the act of the respondent-accused is considered as a
‘proceeding’ on the ground that the alleged destruction of public property
held a nexus with the budget speech, then it would mean that if a non- D
member who is called before the Assembly to depose would also be
protected by Article 194(4), if they commit a similar act as that of the
respondent-accused. Similarly, the reference to ‘proceedings’ in Article
212(1) can only mean specific actions such as the passing of a Bill.
What is, however, evident from the above discussion is that the word
‘proceedings’ will take within it the meaning that is contextually E
appropriate.
79. To understand the meaning of the word ‘proceedings’ in Article
194(2), it is necessary that we look at the context of the provision. Article
194(1) states that the members of the House shall have freedom of
speech in the legislature. The freedom of speech that is provided to the F
members is subject to the provisions of the Constitution and other standing
orders. It was held in P.V. Narasimha Rao (supra) that the freedom of
speech provided to the members of the House is absolute and independent
of Article 19 of the Constitution, and that the freedom of speech of the
members inside the House cannot be restricted by the reasonable G
restrictions provided in Article 19(2) of the Constitution. Thus, although
the members of the House are restricted from discussing the conduct of
a Judge of the Supreme Court or High Court in the discharge of their
duties, but they cannot be precluded from undertaking any discussion on
the grounds of violation of Article 19(2) of the Constitution.
H
848 SUPREME COURT REPORTS [2021] 6 S.C.R.

A 80. Article 194(2), as mentioned above, is divided into two limbs.
The first limb of Article 194(2) which provides the members absolute
immunity with respect of anything said or any vote given in the House is
a manifestation of the freedom of speech provided under Article 194(1).
The second limb of Article 194(2) gives the members immunity in respect
of the publication of ‘any report, paper, votes, or proceedings’ by or
B
under the authority of the house. The legal immunity to ‘anything said or
any vote given’ in the first limb and the ‘publication of a report, paper,
votes, or proceedings’ in the second limb of Article 194(2), flow from
the freedom of speech that is provided under Article 194(1). The exercise
of these manifestations of the freedom of speech – as provided in Article
C 194(2) – has been provided with express immunity. However, the only
difference between the two limbs of Article 194(2) is that the first limb
protects the exercise of the freedom, and the second limb protects the
member against the publication of the said exercise of the freedom.
The legal proceedings against the exercise of the freedom can only be
initiated by those aware of the exercise of freedom, which would mean
D
either those who are present in the House or those who become aware
of it when the speech, vote or the like, is published. While the freedoms
protected by both the limbs are substantively the same, the second limb
is clarificatory in the sense that it prevents ‘any person’ from initiating
proceedings against the exercise of freedom of speech inside the House
E when they obtain knowledge of the exercise of the said freedom through
a publication. Thus, the immunity provided for the exercise of the
manifestations of the freedom of speech in the second limb of under
Article 194(2) cannot exceed the freedom of speech provided in the
first limb of Article 194(2). As held above, that acts of destruction of
public property are not privileged under the first limb of Article 194(2).
F
Consequently, acts of vandalism cannot be said to be manifestations of
the freedom of speech and be termed as “proceedings” of the Assembly.
It was not the intention of the drafters of the Constitution to extend the
interpretation of ‘freedom of speech’ to include criminal acts by placing
them under a veil of protest. Hence, the Constitution only grants the
G members the freedom of speech that is necessary for their active
participation in meaningful deliberation without any fear of prosecution.
81. Moreover, 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
H capacity for participation and deliberation in the House. These are
THE STATE OF KERALA v. K. AJITH & ORS. 849
[DR. DHANANJAYA Y CHANDRACHUD, J.]

essential functions that a member has to perform in order to discharge A
her duty to the public as their elected representative. 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,
B
the meaning of the word ‘proceedings’ must also be restricted to only
include such actions.
82. 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). C

C.5.2 Inadmissibility of the video recording as evidence
83. Mr Ranjit Kumar, learned Senior counsel, has urged before us
that the video recording was not obtained by the investigating authorities
with the sanction of the Speaker. He has submitted that the video recording D
belongs to the Electronic Record Room of Assembly and as the custodian
of the House, the permission of the Speaker is necessary to access this
video recording. It was also submitted that the video recording lacks the
certification required for admissibility of evidence.
84. We do not believe that this submission is relevant and merits E
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 F
an application under Section 321 of the CrPC, to adjudicate upon
evidentiary issues and examine the admissibility or sufficiency of evidence.
85. 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. G
86. Pending application(s), if any, stand disposed of.

Nidhi Jain Appeals dismissed.

H