28 Jul 2121

If it serves the administration of justice and in the interest of public policy, then the permission for withdrawal can be granted under Section 321 of the Code of Criminal Procedure, 1973 - Supreme Court of India

Case : The State of Kerala vs. K. Ajith & Ors. Criminal Appeal No. 697 of 2021 @ SLP (Crl) No. 4009 of 2021 with Criminal Appeal No. 698 of 2021 @SLP Crl No. 4481 of 2021

Court : Supreme Court of India

Bench : Justice Dr Dhananjaya Y Chandrachud and Justice M. R. Shah

Decided on : 28 Jul 2121

Relevant Statutes

Article 105 and 194 of the Constitution of India

Section 321 of Code of Criminal Procedure 1973

Brief Facts and Procedural History

1. The then Finance Minister was presenting the budget in the Kerala Legislative Assembly on 13 March 2015. The accused’s were the Members of the Legislative  Assembly belonging to the opposition party who disrupted the presentation of the budget and further 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 Legislative Secretary reported the incident to the Museum Police Station and the case was registered under Sections 447 and 427 read with Section 34 of the Indian Penal Code 1860 and Section 3(1) of the Prevention of Damage to Public Property Act 1984. After completion of the investigation, cognizance was taken by the Additional CJM, Ernakulam.

2. Afterwards, an application was filed by the Assistant Public  Prosecutor under Section 321 of the Code of Criminal Procedure 1973 and seeks sanction to withdraw the case against all the accused. Further, The Government of Kerala which owned the destroyed property gave consent to the withdrawal of the prosecution. Later, the case was transferred to the court of the CJM, Thiruvananthapuram who declined to give consent to the application of the Prosecutor by order 22 September 2020. The State of Kerala filed a criminal revision petition before the High Court. The High Court dismissed the petition and affirmed the order of the CJM by order dated 12 March 2021. Lastly, The State of Kerala and the have filed independent SLPs against the order of the High Court before this Court. 

The Issue of the Case

Whether 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 the trial?

The Observations of the Court

1. The Honourable Supreme Court referred one Judgment i.e. M.N. Sankarayaraynan Nair vs. P.V.  Balakrishnan, 1972(1) SCC 435, It was held that while granting permission under Section 321 of the Code of Criminal Procedure 1973, there should be sufficient materials before the Court and it serves the administration of justice. The Honourable High Court referred to another judgment i.e. Sheonandan Paswan vs. State of Bihar & Ors., 1987 (1) SCC 288, The Court has to scrutinize materials for the purpose of deciding whether there was insufficient evidence or no evidence in support of the prosecution and also make sure that it is for a legitimate purpose and initiated without mala fides. The public policy, interest of administration and inexpediency to proceed with the prosecution for reasons of the state are the valid grounds for withdrawal.

2. The Honourable High Court referred to another judgment i.e. Lokayukta Justice, Ripusudan Dayal (Retired) and Ors. vs. State of Madhya Pradesh & Ors, 2014(4) SCC 473, It was observed that the privileges are available only up to as they are essential for the members to carry out legislative functions. The Honourable Supreme Court observed and referred the legislature made for the purpose of prevention of damage to the public property i.e. The Prevention of Damage to Public Property Act 1984 and stated that No elected legislature can claim either a privilege or immunity to stand above the sanctions of criminal law.

3. The Honourable Supreme Court observed that the application filed under Section 321 of the Code of Criminal Procedure 1973 was based on the fundamental misconception of the constitutional provisions contained in Article 194 of the Constitution of India that an elected member of the legislature stands above the general application of criminal law. The Honourable Supreme Court observed that there must be a nexus between act or incident and freedom of speech under Article 105(2) of the Constitution of India. The Honourable Supreme Court observed that the act of the destruction of public property within the house by the members cannot be regarded as essential for exercising their legislative functions and is also not covered by the privileges granted under the Indian Constitution.

4. The Honourable Supreme Court observed that on the basis of a mere finding of the High Court that there is good faith does not result in allowing the application by ignoring the public justice. The Honourable Supreme Court held that the prosecution against the accused is vitiated for want of sanction stands rejected. The Honourable High Court observed though the video conferencing of the incident in local or national channels falls under the purview of the word ‘Publications’ it was not broadcast for dissemination to the public. So it was not the publication of the House and therefore does not enjoy the protection of immunity under Article 194 (2) of the Indian Constitution. The Honourable Supreme Court observed that the word ‘proceedings’ under Article 194(2) of the Constitution of India and held the video recording of the incident is not a proceeding.

The Decision Held by the Court

The Appel is hereby dismissed and held that the High Court has rightly given the findings.

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