Chartered Accountant Finance: [aaykarbhavan] Fw: Fwd: Lawyersclubindia Update : 28/02/2014 & JUdgment

Posted on 27 February 2014 by Vineet Kumar

Court

Supreme Court of India

Brief

The three judge bench comprising of Chief Justice of India, P.Sathasivam, Justice Ranjan Gogoi and Justice Shiva Kirti Singh quashed the 'breach of privilege' notices issued by Madhya Pradesh Assembly Secretariat to the Lokayukta for breach of privilege for summoning its Secretary for probe on a complaint of corruption. The judgment cleared the question of immunity and expanded the scope of investigative powers conferred upon the Lokayukta by inclusion of staff of Speaker and Deputy Speaker within its purview. Highlights of the judgment: The officers working under the office of the Speaker are also public servants within the meaning of Section 2(g) of the Lokayukt Act and within the meaning of Section 2 (c) of the Prevention of Corruption Act, 1988 and, therefore, the Lokayukt and his officers are entitled and duty bound to make inquiry and investigation into the allegations made in any complaint filed before them. It is made clear that privileges are available only insofar as they are necessary in order that House may freely perform its functions. For the application of laws, particularly, the provisions of the Lokayukt Act, and the Prevention of Corruption Act, 1988, the jurisdiction of the Lokayukt or the Madhya Pradesh Special Police Establishment is for all public servants (except the Speaker and the Deputy Speaker of the Madhya Pradesh Vidhan Sabha for the purposes of the Lokayukt Act) and no privilege is available to the officials and, in any case, they cannot claim any privilege more than an ordinary citizen to whom the provisions of the said Acts apply. Privileges do not extend to the activities undertaken outside the House on which the legislative provisions would apply without any differentiation. In the present case, the action taken by the petitioners is within the powers conferred under the above statutes and, therefore, the action taken by the petitioners is legal. Further, initiation of action for which the petitioners are legally empowered, cannot constitute breach of any privilege.

Citation

The Bengal Immunity Company Limited vs. The State of Bihar and Others, [1955] 2 SCR 603 East India Commercial Co., Ltd., Calcutta and Another vs. The Collector of Customs, Calcutta, [1963] 3 SCR 338 Raja Ram Pal vs. Hon'ble Speaker, Lok Sabha and Others, (2007) 3 SCC 184 A. Kunjan Nadar vs. The State, AIR 1955 Travancore-Cochin 154

Judgement

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 613 OF 2007

Justice Ripusudan Dayal (Retd.) & Ors. .... Petitioner (s)

Versus

State of M.P. & Ors. .... Respondent(s)

J U D G M E N T

P.Sathasivam, CJI.

1) The present writ petition, under Article 32 of the

Constitution of India, has been filed by the petitioners

challenging the validity of certain letters issued by Mr. Qazi

Aqlimuddin – Secretary, Vidhan Sabha (Respondent No.4

herein) on various dates against them with regard to a case

registered by the Special Police Establishment (SPE) of the

Lokayukt Organisation, against the officials of the Vidhan

Sabha Secretariat as well as against the concerned officials

of the Capital Project Administration-the Contractor

Page 1

Company alleging irregularity in the construction work

carried out in the premises of Vidhan Sabha.

2) It is relevant to mention that Petitioner No.1 herein was

the Lokayukt of the State of Madhya Pradesh appointed

under the provisions of the Madhya Pradesh Lokayukt Evam

Uplokayukt Act, 1981 (hereinafter referred to as "the

Lokayukt Act"). Petitioner No.2 was the Legal Advisor, a

member of the Madhya Pradesh Higher Judicial Service on

deputation with the Lokayukt and Petitioner Nos. 3 to 5 were

the officers of Madhya Pradesh Special Police Establishment.

3) The petitioners herein claimed that the said letters

violate their fundamental rights under Articles 14, 19 and 21

of the Constitution of India and are contrary to Article 194(3)

and prayed for the issuance of a writ, order or direction(s)

quashing the said letters as well as the complaints filed by

Respondent Nos. 5, 6 (since expired), 7, 8 and 9 herein.

4) Brief facts

Page 2

(a) An anonymous complaint was received on 21.06.2005

in the office of the Lokayukt stating that a road connecting

the Vidhan Sabha with Vallabh Bhawan, involving an

expenditure of about Rs. 2 crores, was being constructed

without inviting tenders and complying with the prescribed

procedure. It was also averred in the said complaint that

with a view to regularize the above-said works, the officers

misused their official position and got the work sanctioned to

the Capital Project Administration in violation of the rules

which amounts to serious financial irregularity and misuse of

office. It was also mentioned in the said complaint that in

order to construct the said road, one hundred trees had been

cut down without getting the permission from the concerned

department. The said complaint was registered as E.R.

No.127 of 2005. During the inquiry, the Deputy Secretary,

Housing and Environment Department, vide letter dated

18.08.2005 stated that the work had been allotted to the

lowest tenderer and the trees were cut only after obtaining

the requisite permission from the Municipal Corporation. In

view of the said reply, the matter was closed on 22.08.2005.

Page 3

(b) On 22.12.2006, again a complaint was filed by one Shri

P.N. Tiwari, supported with affidavit and various documents,

alleging the same irregularities in the said construction work

by the officers of the Vidhan Sabha Secretariat in collusion

with the Capital Project Administration which got registered

as E.R. No. 122 of 2006. A copy of the said complaint was

sent to the Principal Secretary, Madhya Pradesh

Government, Housing and Environment Department for

comments. In reply, the Additional Secretary, M.P.

Government, Housing and Environment Department

submitted the comments along with certain documents

stating that the Building Controller Division working under

the Capital Project Administration was transferred to the

administrative control of the Vidhan Sabha Secretariat vide

Order dated 17.07.2000 and consequently the Secretariat

Vidhan Sabha was solely responsible for the construction

and maintenance work within the Vidhan Sabha premises.

Secretary, Housing and Environment Department to submit

all the relevant records, tender documents, note sheets,

Page 4

administrative, technical and budgetary sanctions by

10.10.2007. By letter dated 17.07.2007, the Under

Secretary of the said Department informed that since the

administrative sanctions were issued by the Secretariat

Vidhan Sabha, the materials were not available with them.

In view of the said reply, the Lokayukt-(Petitioner No.1

herein) sent letters dated 31.07.2007 addressed to the

Principal Secretary, Housing and Environment Department,

Administrator, Capital Project Administration and the Deputy

Secretary, Vidhan Sabha Secretariat to appear before him

along with all the relevant records on 10.08.2007. On

10.08.2007, the Principal Secretary, Housing and

Environment appeared before the Lokayukt and informed

that since the Controller Buildings of Capital Project

Administration was working under the administrative control

of the Vidhan Sabha Secretariat since 2000, all

sanctions/approvals and records relating to construction and

maintenance work were available in the Vidhan Sabha

Secretariat. In view of the above reply, the Lokayukt

summoned the Secretary and the Deputy Secretary, Vidhan

Page 5

Sabha, Respondent Nos. 10 and 11 respectively on

24.08.2007 to give evidence and produce all records/note-

sheets of administrative and technical sanctions and

budgetary and tender approvals relating to construction

works carried out in MLA Rest House and Vidhan Sabha

Premises in the year 2005-2006.

(d) The Secretary, Vidhan Sabha, Respondent No. 10

herein, in his deposition dated 24.08.2007, admitted giving

of administrative approval to the estimated cost which was

available with the office of the Lokayukta and stated that the

relevant note-sheet was in the possession of the Hon'ble

Speaker, therefore, he prayed for time to produce the same

by 07.09.2007.

(e) Vide letter dated 07.09.2007, Respondent No.10

conveyed his inability to produce the same. After receiving

information from the Chief Engineer, Public Works

Department, Capital Project, Controller Buildings, Vidhan

Sabha, Capital Project Administration and Chief Engineer,

Public Works Department vide letters dated 11.09.2007,

Page 6

13.09.2007 and 18.09.2007 respectively, the Legal Advisor –

Petitioner No. 2 herein – a member of the M.P. Higher Judicial

Service thoroughly examined the same and found that it is a

fit case to be sent to the SPE for taking action in accordance

with law. Petitioner No.1 was in agreement with the said

opinion. Thereafter, Crime Case No. 33/07 was registered

against the Secretary, Vidhan Sabha (Respondent No.10

herein), Shri A.P. Singh, Deputy Secretary, Vidhan Sabha, the

then Administrator, Superintendent Engineer, Capital Project

Administration and Contractors on 06.10.2007.

(f) After registration of the case, Petitioner No.1 received

the impugned letters dated 15.10.2007 and 18.10.2007

alleging breach of privilege under Procedures and Conduct of

Business Rules 164 of the Madhya Pradesh Vidhan Sabha

against him and the officers of the Special Police

Establishment. In response to the aforesaid letters, by letter

dated 23.10.2007, the Secretary, Lokayukt explained the

factual position of Petitioner No.1 herein stating that no case

of breach of privilege was made out and also pointed out

that neither any complaint had been received against the

Page 7

Hon'ble Speaker nor any inquiry was conducted by the

Lokayukt Organization against him nor his name was found

in the FIR.

(g) On 26.10.2007, the Secretary, Vidhan Sabha –

Respondent No.4 sent six letters stating that the reply dated

23.10.2007 is not acceptable and that individual replies

should be sent by each of the petitioners.

(h) Being aggrieved by the initiation of action by the

Hon'ble Speaker for breach of privilege, the petitioners have

preferred this writ petition.

5) Heard Mr. K.K. Venugopal, learned senior counsel for

the writ petitioners, Mr. Mishra Saurabh, learned counsel for

the State-Respondent No. 1 and Mr. C.D. Singh, learned

counsel for the Secretary, Vidhan Sabha-Respondent No.4.

Contentions:

Page 8

6) Mr. K.K. Venugopal, learned senior counsel for the

petitioners raised the following contentions:-

(i) Whether the Legislative Assembly or its Members enjoy

any privilege in respect of an inquiry or an investigation into

a criminal offence punishable under any law for the time

being in force, even when inquiry or investigation was

initiated in performance of duty enjoined by law enacted by

the very Legislative Assembly of which the breach of

privilege is alleged?

(ii) Whether officials of the Legislative Assembly also enjoy

the same privileges which are available to Assembly and its

Members?

(iii) Whether seeking mere information or calling the officials

of Vidhan Sabha Secretariat for providing information during

inquiry or investigation amounts to breach of privilege?

(iv) In view of the letter dated 23.08.2007, sent by the

Principal Secretary to Respondent Nos. 10 and 11, i.e.,

Secretary and Deputy Secretary, Vidhan Sabha respectively

Page 9

directing them to appear before the Lokayukt (as per the

order of the Speaker), whether Respondent Nos. 10 and 11

can have any grievance that information was sought from

them without sanction and knowledge of the Speaker?

7) On behalf of the respondents, particularly, Respondent

No.4-Secretary, Vidhan Sabha, Mr. C.D. Singh, at the

foremost submitted that the present petition under Article 32

of the Constitution of India invoking writ jurisdiction of this

Court is not maintainable as no fundamental right of the

petitioners, as envisaged in Part III of the Constitution, has

been violated by any of the actions of Respondent No. 4. It

is their stand that every action pertaining to the Assembly

and its administration is within the domain and jurisdiction of

the Hon'ble Speaker. The matter of privilege is governed

under the rules as contained in Chapter XXI of the Rules of

Procedure and Conduct of Business in the Madhya Pradesh

Vidhan Sabha. Hence, it is stated that the writ petition is

liable to be dismissed both on the ground of maintainability

as well as on merits.

Page 10

8) Before considering rival contentions and the legal

position, it is useful to recapitulate the factual details and

relevant statutory provisions which are as under:-

The legislature of the Central Province and Berar

enacted the Central Provinces and Berar Special Police

Establishment Act, 1947 (hereinafter referred to as 'the SPE

Act'). Under the said Act, a Special Police Force was

constituted which has power to investigate the offences

notified by the State Government under Section 3 of the said

Act, which reads as under:-

"3. Offences to be investigated by Special Police

Establishment:- The State Government may, by

notifications, specify the offences or classes of offences

which are to be investigated by (Madhya Pradesh) Special

Police Establishment."

9) On 16.09.1981, Legislative Assembly of the State of

Madhya Pradesh enacted the Lokayukt Act with the following

objective as has been stated in the preamble of the said

Act:-

"An Act to make provision for the appointment and

functions of certain authorities for the enquiry into the

allegation against "Public Servants" and for matters

connected there with."

Page 11

Section 2(a) of the Lokayukt Act defines "officer" in the

following manner:-

"officer" means a person appointed to a public service or

post in connection with the affairs of the State of Madhya

Pradesh."

Section 2(b) defines "allegation" as follows:-

"allegation" in relation to a public servant means any

affirmation that such public servant,

(i) has abused his position as such to obtain any gain or

favour to himself or to any other person or to cause undue

harm to any person;

(ii) was actuated in the discharge of his functions as such

public servant by improper or corrupt motives;

(iii) is guilty of corruption; or

(iv) is in possession of pecuniary resources or property

disproportionate to his known sources of income and such

pecuniary resources or property is held by the public

servant personally or by any member of his family or by

some other person on his behalf.

Explanation:- For the purpose of this sub-clause "family"

means husband, wife, sons and unmarried daughters living

jointly with him;"

The phrase "Public Servant" has been defined under Section

2(g) of the Lokayukt Act in the following terms:

"Public Servant" means a person falling under any of the

following categories, namely:-

(i) Minister;

Page 12

(ii) a person having the rank of a Minister but shall not

include Speaker and Deputy Speaker of the Madhya

Pradesh Vidhan Sabha;

(iii) an officer referred to in clause (a);

(iv) an officer of an Apex Society or Central Society within

the meaning of Clause (t-1) read with Clauses (a-1), (c-1)

and (z) of Section 2 of the Madhya Pradesh Co-operative

Societies Act, 1960 (No. 17 of 1961).

(v) Any person holding any office in, or any employee of (i)

a Government Company within the meaning of

Section 617 of the Companies Act, 1956; or

(ii) a Corporation or Local Authority established by

State Government under a Central or State

enactment.

(vi) (a) Up-Kulpati, Adhyacharya and Kul Sachiva of the

Indira Kala Sangit Vishwavidyalaya constituted under

Section 3 of the Indira Kala Sangit Vishwavidyalaya Act,

1956 (No. 19 of 1956);

(b) Kulpati and Registrar of the Jawahar Lal Nehru Krishi

Vishwavidyalaya constituted under Section 3 of the

Jawaharlal Nehru Krishi Vishwavidyalaya Act, 1963 (No. 12

of 1963);

Kulpati Rector and Registrar of the Vishwavidyalay

constituted under Section 5 of the Madhya Pradesh

Vishwavidyalay Adhiniyam, 1973 (No. 22 of 1973)."

10) Thus, all persons, except those specifically excluded

under the said definition, come within the domain of the

Lokayukt Act and the Lokayukt can, therefore, entertain

complaints and take actions in accordance with the said

provisions. Section 7 of the said Act thereafter defines the

Page 13

role of the Lokayukt and the Up-Lokayukt in the following

terms:-

"7. Matters which may be enquired into by Lokayukt

or Up-Lokayukt:-

Subject to the provision of this Act, on receiving complaint

or other information:-

(i) the Lokayukt may proceed to enquire into an allegation

made against a public servant in relation to whom the

Chief Minister is the competent authority.

(ii) the Up-Lokayukt may proceed to enquire into an

allegation made against any public servant other than

referred to in clause (i)

Provided that the Lokayukt may enquire into an allegation

made against any public servant referred to in clause (ii).

Explanation:- For the purpose of this Section, the

expression "may proceed to enquire", and "may enquire",

include investigation by Police agency put at the disposal

of Lokayukt and Up-Lokayukt in pursuance of sub-Section

(3) of Section 13.

11) On 14.09.2000, the State Government issued a

notification in exercise of powers under Section 3 of the SPE

Act by which the Special Police Establishment was

empowered to investigate offences with regard to the

following offences:-

(a) Offences punishable under the Prevention of Corruption

Act, 1988 (No. 49 of 1988);

(b) Offences under Sections 409 and 420 and Chapter XVIII

of the Indian Penal Code, 1860 (No. XLV of 1860) when

they are committed, attempted or abused by public

Page 14

servants or employees of a local authority or a statutory

corporation, when such offences adversely affect the

interests of the State Government or the local authority or

the statutory corporation, as the case may be;

(a) and (b) above; and

(d) Conspiracies in respect of offences mentioned in item

(a) and (b) shall be charged with simultaneously in one trial

under the provisions of Criminal Procedure Code, 1973 (No.

2 of 1974).

12) As per the provision of Section 4 of the SPE Act, the

superintendence of investigation by the M.P. Special Police

Establishment was vested in the Lokayukt appointed under

the Lokayukt Act.

13) On 22.12.2006, a complaint was received from one Shri

P.N. Tiwari supported by affidavit and various documents

making allegations that works had been carried out in the

new Assembly building by the Capital Project Administration

in gross violation of the rules, without making budgetary

provisions and committing financial irregularities. The said

complaint was registered as E.R. 122 of 2006. In the said

complaint, it was mentioned that:

(a) An order had been issued to the Administrator, Capital

Project Administration by Shri A.P. Singh, Deputy

Page 15

Secretary, Vidhan Sabha giving administrative approval

for the estimate of the cost of construction against

rules and without making budgetary provision vide

order dated 19.10.2005 in respect of the following

works:

S.No. Name of works Amount in

lakhs

(i) Construction of 30 rooms in MLA Rest

House Block-2

(ii) Construction of toilets in Block 1-3 of

MLA Rest House

(iii) Construction of shops in MLA Rest

House premises

(iv) Up-gradation/construction of road from

Mazar to Gate No. 5 of Vidhan Sabha

(Old Jail)

(a) Construction of road from Mazar to

Rotary

(b) Construction of road from Rotary to

Jail Road

(v) Construction of lounge for the Speaker

and Officers in Vidhan Sabha Hall

(vi) Construction of new reception zone

(including parking/road) for Vidhan

Sabha

(vii) Upgradation work of campus lights and

electric work in MLA Rest House

premises

(viii) Construction of road from Vidhan

Sabha to Secretariat (including

development of helipad and connected

area) and proposed upgradation and

development work of M.P.

Pool/spraypond:

(a) Construction of new road from the

VIP entrance upto the proposed new

gate

(b) Construction of road from present

Char Diwari to Rotary

Rs. 5.51

Rs. 25.48

Rs. 5.98

Rs. 22.52

Rs. 13.23

Rs. 6.80

Rs. 54.00

Rs. 26.60

Rs. 10.85

Rs. 21.56

Page 16

Secretariat

Rs. 12.00

Total sanctioned amount Rs. 204.53

(b) the officers had abused their powers by getting the

works carried out without making budgetary provisions

and without getting approval from the Finance

Department in respect of the works specified at item

numbers (iv), (vi), (vii) and (viii) above.

(i) Though administrative approval was accorded by

Shri A.P. Singh, Deputy Secretary, Vidhan Sabha

on 19.10.2005, works had already been executed

and inaugurated in the presence of the then Chief

Minister, Shri Babulal Gaur and the Speaker,

Vidhan Sabha and other Ministers on 03.08.2005.

The proper procedure is to first invite tenders and

it is only after the acceptance of the suitable

tenders that work orders are to be issued.

(ii) Budgetary head of the Vidhan Sabha is 1555. This

head is meant for maintenance and not for new

Page 17

construction, but the administrative approval

dated 19.10.2005 was accorded by Shri A.P. Singh,

Deputy Secretary, Vidhan Sabha in respect of new

works of total value of Rs. 160.76 lakh.

(iii) Works of the value of Rs. 160.76 lakh were carried

out without any budgetary provision and also

without the approval of the Finance Department.

Furthermore, a proposal had been sent by the

Capital Project Administration for sanction of

budget but the same was not approved by the

Finance Department. Even then the works were

got executed.

(iv) As per the approval dated 19.10.2005,

expenditure was to be incurred from the main

budgetary head 2217 which is the head of Urban

Development. From that head, construction

activities in the Vidhan Sabha premises could not

be carried out.

Page 18

(v) The Controller Buildings, Capital Project (Vidhan

Sabha) executed the works in collusion with the

other officers and in violation of the rules. It was

stated that the officials had abused their powers to

regularize their irregular activities. The works had

been undertaken for the personal benefit of some

officers and payments were made in violation of

the rules.

14) By letter dated 04.01.2007, a copy of the complaint

was sent to the Principal Secretary, Madhya Pradesh

Government, Housing and Environment Department calling

factual comments along with the relevant documents. The

comments were submitted by the Additional Secretary, M.P.

Government, Housing and Environment Department vide

letter dated 15.05.2007. The comments, inter alia, stated

that the Building Controller Division functioning under the

Capital Project Administration was transferred to the

administrative control of the Vidhan Sabha Secretariat vide

order dated 17.07.2000, consequently, Secretariat Vidhan

Sabha is solely responsible for the construction and

Page 19

maintenance works within the Vidhan Sabha premises. On

examination of the comments received along with the

supporting documents, following discrepancies were

revealed:

(a) Whereas the comments stated that budget provision

had been made for an amount of Rs.204.53 lakh for the

purpose of special repairs and maintenance of old and

new Vidhan Sabha and MLA Rest House under Demand

No. 21, main head 2217, sub main head 01, minor head

001, development head 1555 (3207), no amounts were

specified under those heads, sub heads and minor

heads which were related to new construction works;

(b) Whereas the comments stated that work had been

executed through tenders, but tender documents had

not been annexed.

of nine works had been accorded by the Secretariat,

Vidhan Sabha on the request of the Controller Buildings

on 21.03.2005, however, it is not clear from the letter

Page 20

dated 21.03.2005 that administrative approval had

been accorded; and

(d) Whereas the comments stated that amended sanction

was granted vide order dated 19.10.2005, while the

letter dated 19.10.2005 does not indicate that it was an

amended administrative sanction.

15) In view of the above preliminary observations, as noted

above, a request was made to the Principal Secretary,

Housing and Environment Department to submit all relevant

records, tender documents, note-sheets, administrative,

technical and budgetary sanctions by 10.07.2007. It was

again informed by the Under Secretary, Housing and

Environment Department, vide letter dated 17.07.2007 that

since the administrative sanctions were issued by the

Secretariat Vidhan Sabha, the note-sheets/records relating

to such sanctions were not available with the Housing and

Environment Department.

16) In view of the reply submitted by the Under Secretary,

Housing and Environment Department, the Petitioner sent a

Page 21

letter dated 31.07.2007 addressed to the Principal Secretary,

Housing and Environment Department, Administrator,

Capital Project Administration and the Deputy Secretary,

Vidhan Sabha Secretariat to appear before the Lokayukt

along with all relevant information/records on 10.08.2007.

17) On the date fixed for appearance, i.e., 10.08.2007, the

Principal Secretary, Housing and Environment appeared

before the Lokayukt. He informed that since the Controller

Buildings of Capital Project Administration was working

under the administrative control of the Vidhan Sabha

Secretariat since the year 2000, all sanctions/approvals and

records regarding construction and maintenance works

carried out in MLA Rest House and Vidhan Sabha premises

were available in the Vidhan Sabha Secretariat. On

receiving such information, the Principal Secretary, Vidhan

Sabha Secretariat, informed that the records relating to

construction works were not with him and that such type of

work was looked after by the Secretary and the Deputy

Secretary, Vidhan Sabha. In this situation, Secretary and

Deputy Secretary, Vidhan Sabha Secretariat and Controller

Page 22

Buildings, Vidhan Sabha, Capital Project Administration were

summoned to give evidence and produce all records/note-

sheets of administrative and technical sanctions and

budgetary and tender approvals relating to construction

works carried out in MLA Rest House and Vidhan Sabha

premises in the year 2005-06 on 24.08.2007. Summons

were issued as per the provisions of Section 11(1) of the

Lokayukt Act, read with Sections 61 and 244 of the Code of

Criminal Procedure, 1973. Summons were received by the

Deputy Secretary, Vidhan Sabha, Shri G.K. Rajpal and the

Controller Buildings, Shri Devendra Tiwari. Process Server of

the Lokayukt Organisation tried to serve summons on Shri

Israni in his office. Process Server contacted Shri Harish

Kumar Shrivas, P.A. to Shri Israni. The P.A. took the

summons to Shri Israni. After coming back, he asked the

Process Server to wait till 4.00 p.m. Later, the P.A. told the

Process Server to take permission of the Hon'ble Speaker to

effect service of the summons on the Secretary. As such,

summons could not be served on Shri Israni.

Page 23

18) Thereafter, D.O. letter dated 14.08.2007 was received

from the Principal Secretary, Vidhan Sabha stating that as

per the direction of the Hon'ble Speaker, he was informing

the Lokayukt Organization that:

(a) The Vidhan Sabha Secretariat was not aware as to the

complaint which was being inquired into;

(b) All proceedings relating to invitation of tenders,

technical sanction, work orders and payment etc. were

conducted through the Controller Buildings, Capital

Project Administration and, therefore, all the records

relating to these works should be available with them;

is made available to the Vidhan Sabha Secretariat, it

would be possible to make the position more clear.

That was the reason why the Speaker had not granted

permission to the Deputy Secretary to appear in the

Office of the Lokayukt; and

Page 24

(d) Under the provisions of Section 2(g)(ii) of the Lokayukt

Act, the Speaker, the Deputy Speaker and the Leader of

Opposition are exempted from the jurisdiction of the

Lokayukt.

19) Shri Israni appeared before the Lokayukt on

24.08.2007 when his deposition was recorded. In his

deposition, he stated that the administrative approval to the

estimated cost dated 19.10.2005 was given, which was

available with the office of the Lokayukt. He further stated

that note-sheet relating to administrative approval had been

prepared which was in possession of the Speaker.

Accordingly, he was required to produce the same by

07.09.2007.

20) Information was called for from the Chief Engineer,

Public Works Department, Capital Project Administration,

Controller Buildings, Vidhan Sabha, Capital Project

Administration and Chief Engineer, Public Works

Department. The same was received vide letters dated

11.09.2007, 13.09.2007 and 18.09.2007 respectively.

Page 25

21) Scrutiny note was prepared by the Legal Advisor, Mrs.

Vibhawari Joshi, a member of the Madhya Pradesh Higher

Judicial Service, on deputation to the Lokayukt Organization,

with the assistance of the Technical Cell, with the approval

of the Lokayukt. After examination of the information and

records received from the various authorities concerned, she

prima facie found established that:

(a) contracts in respect of construction of roads and

reception plaza and renovation of toilets were awarded at

rates higher than the prevailing rates;

(b) works were got executed even when there were no

budgetary provisions. Demand for budget was made from

the Finance Department but the same had not been

accepted;

were got executed from the maintenance head, which was

not permissible, since the maintenance head is meant for

maintenance works and not for new works;

Page 26

(d) for new construction works of the value of Rs.173.54

lakh, administrative approval and technical sanction had

been accorded by the authorities, who were not competent

to do so;

(e) works of Rs.205.61 lakh were got executed without

obtaining administrative approval and technical sanction;

(f) records show that measurements of WBM work were

recorded after the Bitumen work (tarring) had been

completed. Proper procedure is that first the measurements

of WBM work are recorded, thereafter Bitumen work is

executed and it is only thereafter measurements of Bitumen

work are recorded. Discrepancies in the recording of

measurements create doubt;

(g) Rules provide that in the Notice Inviting Tenders (NIT),

schedule of quantities is annexed so that the tenderers may

make proper assessment while quoting rates, but in the

present case, in the NIT for roads in Schedule-I, quantities

were not specified. So, it was difficult for the tenderers to

Page 27

make proper assessment while quoting rates. This throws

doubt on the legitimacy of the process.

(h) (i) Road was to be constructed within the diameter of

300 meters. For this small area, work was split up into

five portions and four contractors were engaged. Rules

provide that for one road, there should be one

estimate, one technical sanction and one NIT. In the

present case, five estimates were prepared, five

technical sanctions were granted, five tenders were

invited and four contractors were engaged. This throws

doubt on the legitimacy of the process;

(ii) There are three processes involved in the

construction of roads, i.e., WBM, Bitumen and

thermoplastic. As per the rules and practice, for all the

three processes, there should be one tender, but in the

present case, the work was split up into three portions

inasmuch work of WBM was given to two contractors,

work of Bitumen to one other and work of thermoplastic

to still another;

Page 28

(iii) Cement concrete road was constructed for a small

part of the same road. For this small part of the road

another separate NIT was invited and work was

awarded to a separate contractor, i.e., the fifth

contractor;

(i) The Secretary and the Deputy Secretary of Vidhan

Sabha Secretariat and Administrator, Superintending

Engineer and Controller Buildings of Capital Project

Administration in collusion with the contractors, in order to

give undue benefits to them by abusing their official position

caused loss of Rs.12,62,016/- to Rs.20,71,978/- to the

Government.

In view of the above, the Legal Advisor (Petitioner No.2

herein) recorded her opinion that it is a fit case to be sent to

the SPE for taking action in accordance with law. The

Lokayukt Petitioner No. 1 agreed with the note of the Legal

Advisor and observed that it is a fit case to be dealt with

further by the SPE. The case was accordingly sent to the

SPE.

Page 29

22) The SPE, thereafter, registered Crime Case No. 33/07

on 06.10.2007 against Shri Bhagwan Dev Israni, Secretary

Vidhan Sabha, Shri A.P. Singh, Deputy Secretary Vidhan

Sabha, the then Administrator, Superintending Engineer,

Capital Project Administration and Contractors. Soon after

the registration of the criminal case, the petitioners received

the impugned notices dated 15.10.2007 wherein allegations

of breach of privilege were made against the petitioners.

The petitioners understood that the said letters had been

issued on the basis of some complaints by the Members of

Legislative Assembly. The petitioners received further

notices for breach of privilege on the basis of the complaint

made by Shri Gajraj Singh, MLA.

23) In response to the aforesaid letters, the Secretary of the

Lokayukt Organization, on the direction of the Petitioner No.

1 sent a letter dated 23.10.2007, to Respondent No. 4-Shri

Qazi Aqlimuddin, Secretary, Vidhan Sabha giving in details

about the constitutional, legal and factual position stating

that no case of privilege was made out. It was also pointed

out that neither any complaint had been received against

Page 30

the Speaker, Respondent No. 1 nor any inquiry was

conducted by the Lokayukt Organization against him nor was

he named in the FIR.

24) Respondent No. 4, i.e., Secretary, Vidhan Sabha,

thereafter sent six letters dated 26.10.2007 to the

petitioners. By the said letters, the petitioners were

informed that the reply dated 23.10.2007 had not been

accepted and it was directed that individual replies should

be sent by each of the petitioners. Being aggrieved by the

initiation of action by the Speaker for breach of privilege

against the petitioners, as noted above, the petitioners

herein filed the present writ petition.

Maintainability of the writ petition under Article 32 of

the Constitution:

25) Mr. C.D. Singh, learned counsel appearing for

Respondent No.4, by drawing our attention to the relief

prayed for and of the fact that quashing relates to letters on

various dates wherein after pointing out the notice of breach

of privilege received from the members of Madhya Pradesh

Assembly sought comments/opinion within seven days for

Page 31

consideration of the Hon'ble Speaker, submitted that the

proper course would be to submit their response and writ

petition under Article 32 of the Constitution of India is not

maintainable.

26) Mr. Venugopal, learned senior counsel for the

petitioners submitted that as the impugned proceedings

which are mere letters calling for response as they relate to

breach of privilege, amount to violation of rights under

Article 21 of the Constitution, hence, the present writ

petition is maintainable. In support of his claim, he referred

to various decisions of this Court.

27) There is no dispute that all the impugned proceedings

or notices/letters/complaints made by various members of

the Madhya Pradesh Assembly claimed that the writ

petitioners violated the privilege of the House. Ultimately, if

their replies are not acceptable, the petitioners have no

other remedy except to face the consequence, namely,

action under Madhya Pradesh Vidhan Sabha Procedure and

Conduct of Business Rules, 1964. If any decision is taken by

Page 32

the House, the petitioners may not be in a position to

challenge the same effectively before the court of law. In

The Bengal Immunity Company Limited vs. The State

of Bihar and Others, [1955] 2 SCR 603, seven Hon'ble

Judges of this Court accepted similar writ petition. The said

case arose against the judgment of the High Court of Patna

dated 04.12.1952 whereby it dismissed the application made

by the appellant-Company under Article 226 of the

Constitution praying for an appropriate writ or order

quashing the proceedings issued by the opposite parties for

the purpose of levying and realising a tax which is not

lawfully leviable on the petitioners and for other ancillary

reliefs. As in the case on hand, it has been argued before

the seven-Judge Bench that the application was premature,

for there has, so far, been no investigation or finding on facts

and no assessment under Section 13 of the Act. Rejecting

the said contention, this Court held thus:

"…. In the first place, it ignores the plain fact that this

notice, calling upon the appellant company to forthwith get

itself registered as a dealer, and to submit a return and to

deposit the tax in a treasury in Bihar, places upon it

considerable hardship, harassment and liability which, if

Page 33

the Act is void under article 265 read with article 286

constitute, in presenti, an encroachment on and an

infringement of its right which entitles it to immediately

appeal to the appropriate Court for redress. In the next

place, as was said by this Court in Commissioner of

Police, Bombay vs. Gordhandas Bhanji, [1952] 3 SCR

135 when an order or notice emanates from the State

Government or any of its responsible officers directing a

person to do something, then, although the order or notice

may eventually transpire to be ultra vires and bad in law, it

is obviously one which prima facie compels obedience as a

matter of prudence and precaution. It is, therefore, not

reasonable to expect the person served with such an order

or notice to ignore it on the ground that it is illegal, for he

can only do so at his own risk and that a person placed in

such a situation has the right to be told definitely by the

proper legal authority exactly where he stands and what

he may or may not do.

Another plea advanced by the respondent State is

that the appellant company is not entitled to take

proceedings praying for the issue of prerogative writs

under article 226 as it has adequate alternative remedy

under the impugned Act by way of appeal or revision. The

answer to this plea is short and simple. The remedy under

the Act cannot be said to be adequate and is, indeed,

nugatory or useless if the Act which provides for such

remedy is itself ultra vires and void and the principle relied

upon can, therefore, have no application where a party

comes to Court with an allegation that his right has been or

is being threatened to be infringed by a law which is ultra

vires the powers of the legislature which enacted it and as

such void and prays for appropriate relief under article

226. As said by this Court in Himmatlal Harilal Mehta

vs. The State of Madhya Pradesh (supra) this plea of

the State stands negatived by the decision of this Court in

The State of Bombay vs. The United Motors (India)

Ltd. (supra). We are, therefore, of the opinion, for

reasons stated above, that the High Court was not right in

holding that the petition under article 226 was

misconceived or was not maintainable. It will, therefore,

have to be examined and decided on merits…. …."

28) In East India Commercial Co., Ltd., Calcutta and

Another vs. The Collector of Customs, Calcutta, [1963]

Page 34

3 SCR 338, which is a three-Judge Bench decision, this Court

negatived similar objection as pointed out in our case by the

State. In that case, the appellants-East India Commercial

Co. Ltd., Calcutta had brought into India from U.S.A. a large

quantity of electrical instruments under a licence. The

respondent, Collector of Customs, Calcutta, started

proceedings for confiscation of these goods under Section

167(8) of the Sea Customs Act, 1878. The appellants mainly

contended that the proceedings are entirely without

jurisdiction as the Collector can confiscate only when there is

an import in contravention of an order prohibiting or

restricting it and in that case the Collector was proceeding to

confiscate on the ground that a condition of the licence

under which the goods had been imported had been

disobeyed. The appellants, therefore, prayed for a writ of

prohibition directing the Collector to stop the proceedings.

The objection of the other side was that the appellant had

approached the High Court at the notice stage and the same

cannot be considered under Article 226 of the Constitution.

Rejecting the said contention, this Court held:

Page 35

"…..The respondent proposed to take action under Section

167(8) of the Sea Customs Act, read with Section 3(2) of

the Act. It cannot be denied that the proceedings under

the said sections are quasi-judicial in nature. Whether a

statute provides for a notice or not, it is incumbent upon

the respondent to issue notice to the appellants disclosing

the circumstances under which proceedings are sought to

be initiated against them. Any proceedings taken without

such notice would be against the principles of natural

justice. In the present case, in our view, the respondent

rightly issued such a notice wherein specific acts

constituting contraventions of the provisions of the Acts for

which action was to be initiated were clearly mentioned.

Assuming that a notice could be laconic, in the present

case it was a speaking one clearly specifying the alleged

act of contravention. If on a reading of the said notice, it is

manifest that on the assumption that the facts alleged or

allegations made therein were true, none of the conditions

laid down in the specified sections was contravened, the

respondent would have no jurisdiction to initiate

proceedings pursuant to that notice. To state it differently,

if on a true construction of the provisions of the said two

sections the respondent has no jurisdiction to initiate

proceedings or make an inquiry under the said sections in

respect of certain acts alleged to have been done by the

appellants, the respondent can certainly be prohibited from

proceeding with the same. We, therefore, reject this

preliminary contention."

29) In Kiran Bedi & Ors. vs. Committee of Inquiry &

Anr. [1989] 1 SCR 20, which is also a three Judge Bench

decision, the following conclusion in the penultimate

paragraph is relevant:

"47 As regards points (v), (vi) and (vii) suffice it to point

out that the petitioners have apart from filing special leave

petitions also filed writ petitions challenging the very same

orders and since we have held that the action of the

Committee in holding that the petitioners were not covered

Page 36

by Section 8B of the Act and compelling them to enter the

witness box on the dates in question was discriminatory

and the orders directing complaint being filed against the

petitioners were illegal, it is apparently a case involving

infringement of Articles 14 and 21 of the Constitution. In

such a situation the power of this Court to pass an

appropriate order in exercise of its jurisdiction under

Articles 32 and 142 of the Constitution cannot be seriously

doubted particularly having regard to the special facts and

circumstances of this case. On the orders directing filing of

complaints being held to be invalid the consequential

complaints and the proceedings thereon including the

orders of the Magistrate issuing summons cannot survive

and it is in this view of the matter that by our order dated

August, 1988 we have quashed them. As regards the

submission that it was not a fit case for interference either

under Article 32 or Article 136 of the Constitution inasmuch

as it was still open to the petitioners to prove their

innocence before the Magistrate, suffice it to say that in

the instant case if the petitioners are compelled to face

prosecution in spite of the finding that the orders directing

complaint to be filed against them were illegal it would

obviously cause prejudice to them. Points (v), (vi) and (vii)

are decided accordingly."

It is clear from the above decisions that if it is established

that the proposed actions are not permissible involving

infringement of Articles 14 and 21 of the Constitution, this

Court is well within its power to pass appropriate order in

exercise of its jurisdiction under Articles 32 and 142 of the

Constitution. Further, if the petitioners are compelled to

face the privilege proceedings before the Vidhan Sabha, it

would cause prejudice to them. Further, if the petitioners

are compelled to face the privilege motion in spite of the fact

Page 37

that no proceeding was initiated against Hon'ble Speaker or

Members of the House but only relating to the officers in

respect of contractual matters, if urgent intervention is not

sought for by exercising extraordinary jurisdiction,

undoubtedly, it would cause prejudice to the petitioners.

30) Accordingly, we reject the preliminary objection raised

by the counsel for Respondent No.4 and hold that writ

petition under Article 32 is maintainable.

31) With the above factual background and the relevant

statutory provisions, let us examine the rival

submissions.

32) Now, we will consider the contentions raised by Mr.

Venugopal. As mentioned earlier, Petitioner No. 1 is the

Lokayukt appointed under the provisions of the Lokayukta

Act exercising powers and functions as provided under the

Act. In the course of the performance of the said functions,

the Lokayukt Organization received a complaint regarding

certain irregularities in the award of contracts. Petitioner

Nos. 1 and 2, therefore, conducted preliminary inquiry in the

Page 38

matter and on finding that a prima facie case under the

Prevention of Corruption Act was made out, the matter was

referred to the SPE established under the provisions of the

M.P. Special Police Establishment Act, 1947 to be dealt with

further, and thereafter, a case was registered by the said

Establishment under the provisions of the Prevention of

Corruption Act, 1988.

33) Article 194(3) of the Constitution provides for privileges

of the Legislative Assembly and its members which reads as

under:

"194. Powers, privileges, etc, of the House of

Legislatures and of the members and committees

thereof

(1) ***

(2) ***

(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

committees immediately before the coming into force of

Section 26 of the Constitution forty fourth Amendment Act,

1978."

Page 39

34) Article 194 is similar to Article 105 of the Constitution,

which provides for the privileges of Parliament and its

Members. The said Articles provide that the privileges

enjoyed by the legislature shall be such as may from time to

time be defined by the legislature by law. It is relevant to

mention that any law made by the Parliament or the

legislature is subject to the discipline contained in Part III of

the Constitution. The privileges have not been defined but

the above Article provides that until the same are so defined

(i.e. by the legislature by law), they shall be those which the

House or its members and committees enjoyed immediately

before the coming into force of Section 26 of the Constitution

Forty-fourth Amendment Act, 1978.

35) As per Chapter XI of the 'Practice and Procedure of

Parliament' (Fifth edition), by M.N. Kaul and S.L. Shakdher in

interpreting parliamentary privileges at Page 211 observed:

"…regard must be had to the general principle that the

privileges of Parliament are granted to members in order

that they may be able to perform their duties in Parliament

without let or hindrance. They apply to individual

members only insofar as they are necessary in order that

the House may freely perform its functions. They do not

discharge the member from the obligations to society

Page 40

which apply to him as much and perhaps more closely in

that capacity, as they apply to other subjects. Privileges of

Parliament do not place a Member of parliament on a

footing different from that of an ordinary citizen in the

matter of the application of laws unless there are good and

sufficient reasons in the interest of Parliament itself to do

so.

The fundamental principle is that all citizens,

including members of Parliament, have to be treated

equally in the eye of the law. Unless so specified in the

Constitution or in any law, a member of Parliament cannot

claim any privileges higher than those enjoyed by any

ordinary citizen in the matter of the application of law."

36) It is clear that in the matter of the application of laws,

particularly, the provisions of the Lokayukt Act and the

Prevention of Corruption Act, 1988, insofar as the jurisdiction

of the Lokayukt or the Madhya Pradesh Special

Establishment is concerned, all public servants except the

Speaker and the Deputy Speaker of the Madhya Pradesh

Vidhan Sabha for the purposes of the Lokayukt Act fall in the

same category and cannot claim any privilege more than an

ordinary citizen to whom the provisions of the said Acts

apply. In other words, the privileges are available only

insofar as they are necessary in order that the House may

freely perform its functions but do not extend to the

activities undertaken outside the House on which the

Page 41

legislative provisions would apply without any

differentiations. In view of the above, we reject the contra

argument made by Mr. C.D. Singh.

37) As rightly submitted by Mr. K.K. Venugopal, in India,

there is rule of law and not of men and, thus, there is

primacy of the laws enacted by the legislature which do not

discriminate between persons to whom such laws would

apply. The laws would apply to all such persons unless the

law itself makes an exception on a valid classification. No

individual can claim privilege against the application of laws

and for liabilities fastened on commission of a prohibited Act.

38) In respect of the scope of the privileges enjoyed by the

Members, the then Speaker Mavalankar, while addressing

the conference of the Presiding Officers at Rajkot, on

03.01.1955, observed:

"The simply reply to this is that those privileges which are

extended by the Constitution to the legislature, its

members, etc. are equated with the privileges of the House

of Commons in England. It has to be noted here that the

House of Commons does not allow the creation of any

privileges; and only such privileges are recognized as have

existed by long time custom."

Page 42

39) 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 members

is to allow them to perform their functions as members and

no hindrance is caused to the functioning of the House.

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:

"(i) Parliamentary privileges are intended to be enjoyed

on behalf of the people, in their interests and not against

the people opposed to their interests;

*** *** ***

(iii) the concept of privileges for any class of people is

anarchronistic in a democratic society and, therefore, if

any, these privileges should be the barest minimum – only

those necessary for functional purposes – and invariably

defined in clear and precise terms;

(iv) sovereignty of Parliament has increasingly become a

myth and a fallacy for, sovereignty, if any, vests only in the

people of India who exercise it at the time of general

elections to the Lok Sabha and to the State Assemblies;

(v) in a system wedded to freedom and democracy –

rule of law, rights of the individual, independent judiciary

and constitutional government – it is only fair that the

fundamental rights of the citizens enshrined in the

Constitution should have primacy over any privileges or

special rights of any class of people, including the elected

legislators, and that all such claims should be subject to

judicial scrutiny, for situations may arise where the rights

of the people may have to be protected even against the

Page 43

Parliament or against captive or capricious parliamentary

majorities of the moment;

(vi) the Constitution specifically envisaged privileges of

the Houses of parliament and State Legislatures and their

members and committees being defined by law by the

respective legislatures and as such the Constitutionmakers

definitely intended these privileges being subject

to the fundamental rights, provisions of the Constitution

and the jurisdiction of the courts;

*** *** ***

(viii) in any case, there is no question of any fresh

privileges being added inasmuch as (a) under the

Constitution, even at present, parliamentary privileges in

India continue in actual practice to be governed by the

precedents of the House of Commons as they existed on

the day our Constitution came into force; and (b) in the

House of Commons itself, creation of new privileges is not

allowed."

40) The Committee also noted the main arguments against

codification. Argument no. (vii) is as under:

"(vii) The basic law that all citizens should be treated

equally before the law holds good in the case of members

of Parliament as well. They have the same rights and

liberties as ordinary citizens except when they perform

their duties in the Parliament. The privileges, therefore, do

not, in any way, exempt members from their normal

obligation to society which apply to them as much and,

perhaps, more closely in that as they apply to others."

41) 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 continue to apply

to them like any other law applicable to ordinary citizens.

Page 44

Thus, enquiry or investigation into an allegation of 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.

42) According to Erskine May, the privilege of freedom from

arrest has never been allowed to interfere with the

administration of criminal justice or emergency legislation.

Thus, in any case, there cannot be any privilege against

conduct of investigation for a criminal offence. There is a

provision that in case a member is arrested or detained, the

House ought to be informed about the same.

43) With regard to "Statutory detention", it has been

stated, thus:

"The detention of a member under Regulation 18B of the

Defence (General), Regulation 1939, made under the

Emergency Powers (Defence) Acts 1939 and 1940, led to

the committee of privileges being directed to consider

whether such detention constituted a breach of Privilege of

the House; the committee reported that there was no

breach of privilege involved. In the case of a member

deported from Northern Rhodesia for non-compliance with

an order declaring him to be prohibited immigrant, the

speaker held that there was no prima-facie case of breach

of privilege.

Page 45

The detention of members in Ireland in 1918 and 1922

under the Defence of the Realm Regulations and the Civil

Authorities (Special Powers) Act, the speaker having been

informed by respectively the Chief Secretary of the Lord

Lieutenant and the secretary to the Northern Ireland

Cabinet, was communicated by him to the House."

44) The committee for Privileges of the Lords has

considered the effect of the powers of detention under the

Mental Health Act, 1983 on the privileges of freedom from

arrest referred to in Standing Order No. 79 that 'no Lord of

Parliament is to be imprisoned or restrained without

sentence or order of the House unless upon a criminal

charge or refusing to give security for the peace'. The

Committee accepted the advice of Lord Diplock and other

Law Lords that the provisions of the statute would prevail

against any existing privilege of Parliament or of peerage.

45) In Raja Ram Pal vs. Hon'ble Speaker, Lok Sabha

and Others, (2007) 3 SCC 184, this Court observed:

"71. In U.P. Assembly case (Special Reference No. 1 of

1964), while dealing with questions relating to powers,

privileges and immunities of the State Legislatures, it was

observed as under:

"70. … Parliamentary privilege, according to May, is the

sum of the peculiar rights enjoyed by each House

collectively as a constituent part of the High Court of

Parliament, and by Members of each House individually,

without which they could not discharge their functions,

Page 46

and which exceed those possessed by other bodies or

individuals. Thus, privilege, though part of the law of the

land, is to a certain extent an exemption from the

ordinary law. The particular privileges of the House of

Commons have been defined as

'the sum of the fundamental rights of the House and

of its individual Members as against the prerogatives

of the Crown, the authority of the ordinary courts of

law and the special rights of the House of Lords'.

… …. The privileges of Parliament are rights which are

'absolutely necessary for the due execution of its

powers'. They are enjoyed by individual Members,

because the House cannot perform its functions without

unimpeded use of the services of its Members; and by

each House for the protection of its Members and the

vindication of its own authority and dignity (May's

Parliamentary Practice, pp. 42-43)."

The privilege of freedom from arrest has never been

allowed to interfere with the administration of criminal justice

or emergency legislation.

87. In U.P. Assembly case (Special Reference No. 1 of

1964) it was settled by this Court that a broad claim that

all the powers enjoyed by the House of Commons at the

commencement of the Constitution of India vest in an

Indian Legislature cannot be accepted in its entirety

because there are some powers which cannot obviously be

so claimed. In this context, the following observations

appearing at SCR p. 448 of the judgment should suffice:

(AIR p. 764, para 45)

"Take the privilege of freedom of access which is

exercised by the House of Commons as a body and

through its Speaker 'to have at all times the right to

petition, counsel, or remonstrate with their Sovereign

through their chosen representative and have a

favourable construction placed on his words was justly

regarded by the Commons as fundamental privilege'

[Sir Erskine May's Parliamentary Practice, (16th Edn.), p.

86]. It is hardly necessary to point out that the House

cannot claim this privilege. Similarly, the privilege to

pass acts of attainder and impeachments cannot be

claimed by the House. The House of Commons also

claims the privilege in regard to its own Constitution.

Page 47

This privilege is expressed in three ways, first by the

order of new writs to fill vacancies that arise in the

Commons in the course of a Parliament; secondly, by

the trial of controverted elections; and thirdly, by

determining the qualifications of its members in cases

of doubt (May's Parliamentary Practice, p. 175). This

privilege again, admittedly, cannot be claimed by the

House. Therefore, it would not be correct to say that all

powers and privileges which were possessed by the

House of Commons at the relevant time can be claimed

by the House."

195. The debate on the subject took the learned counsel

to the interpretation and exposition of law of Parliament as

is found in the maxim lex et consuetudo parliamenti as the

very existence of a parliamentary privilege is a substantive

issue of parliamentary law and not a question of mere

procedure and practice."

46) In A. Kunjan Nadar vs. The State, AIR 1955

Travancore-Cochin 154, the High Court while dealing with

the scope of privileges under Article 194(3) of the

Constitution held as under:-

"(3) Article 194(3) deals with the powers, privileges and

immunities of the Legislature and their members in Part A

states and Article 238 makes those powers, privileges and

immunities available to legislatures and its members in the

Part B states as well. Article 194(3) deals with the

privileges and immunities available to the petitioner in a

matter like this and they are according to that clause "such

as may time to time be defined by the legislature by law"

and until so defined, those of a member of the House of

Commons of the Parliament of the United Kingdom at the

commencement of the constitution.

(4) As stated before, there is no statutory provision

granting the privilege or immunity invoked by the

petitioner and it is clear from May's Parliamentary Practice

Page 48

Edn. 1950, p. 78 that "the privilege from freedom from

arrest is not claimed in respect of criminal offences or

statutory detention" and that the said freedom is limited to

civil clauses, and has not been allowed to interfere with the

administration of criminal justice or emergency legislation.

Xxxx xxxx xxxx

(8) …… So long as the detention is legal – and in this case

there is no dispute about its legality – the danger of the

petitioner losing his seat or the certainty of losing his daily

allowance cannot possibly form the foundation for relief

against the normal or possible consequences of such

detention."

47) In Dasaratha Deb case (1952), the Committee of

Privileges-Parliament Secretariat Publication, July 1952, inter

alia, held that the arrest of a Member of Parliament in the

course of administration of criminal justice did not constitute

a breach of privilege of the House.

48) On 24.12.1969, a question of privilege was raised in the

Lok Sabha regarding arrests of some members while they

were stated to be on their way to attend the House. The

Chair ruled that since the members were arrested under the

provisions of the Indian Penal Code and had pleaded guilty,

no question of privilege was involved.

49) In order to constitute a breach of privilege, however, a

libel upon a Member of Parliament must concern his

Page 49

character or conduct in his capacity as a member of the

House and must be "based on matters arising in the actual

transaction of the business of the House." Reflections upon

members otherwise than in their capacity as members do

not, therefore, involve any breach of privilege or contempt of

the House. Similarly, speeches or writings containing vague

charges against members of criticizing their parliamentary

conduct in a strong language, particularly, in the heat of a

public controversy, without, however, imputing any mala

fides were not treated by the House as a contempt or breach

of privilege.

50) Similarly, the privilege against assault or molestation is

available to a member only when he is obstructed or in any

way molested while discharging his duties as a Member of

the Parliament. In cases when members were assaulted

while they were not performing any parliamentary duty it

was held that no breach of privilege or contempt of the

House had been committed.

Page 50

51) Successive Speakers have, however, held that an

assault on or misbehaviour with a member unconnected with

his parliamentary work or mere discourtesy by the police

officers are not matters of privilege and such complaints

should be referred by members to the Ministers directly.

52) 45

Report of the Committee of Privileges of the Rajya

Sabha dated 30

November, 2000 stated as under:

"6. The issue for examination before the Committee is

whether CRPF personnel posted at Raj Bhawan in Chennai

committed a breach of privilege available to Members of

Parliament by preventing Shri Muthu Mani from meeting

the Governor in connection with presentation of a

memorandum.

7. The Committee notes that privileges are available to

Member of Parliament so that they can perform their

parliamentary duties without let or hindrance. Shri Muthu

Mani had gone to the residence of Governor for

presentation of a memorandum in connection with party

activities. Before Shri Muthu Mani reached there, two

delegations of his party had been allowed to meet the

Governor. It appears that due to security related

administrative reasons the entry of another delegation of

which Shri Muthu Mani was a Member, was denied by the

Police officers. Since Shri Muthu Mani was present in

connection with the programme of his political party,

apparently along with other party workers, it cannot be

said that he was in any way performing a parliamentary

duty. As such preventing his entry by lawful means cannot

be deemed to constitute a breach of his parliamentary

privilege."

53) Now, with regard to the contention of Mr. Venugopal,

viz., about the privileges available to the Assembly and its

Page 51

Members, in case of arrest of employees of the Legislature

Secretariat within the precincts of the House, the Speaker of

the Kerala Legislative Assembly, disallowing the question of

privilege, ruled that the prohibition against making arrest,

without obtaining the permission of the Speaker, from the

precincts of the House is applicable only to the members of

the Assembly. He observed that it is not possible, nor is it

desirable to extend this privilege to persons other than the

members, since it would have the effect of putting

unnecessary restrictions and impediments in the due

process of law.

54) The officers working under the office of the Speaker are

also public servants within the meaning of Section 2(g) of

the Lokayukt Act and within the meaning of Section 2 (c) of

the Prevention of Corruption Act, 1988 and, therefore, the

Lokayukt and his officers are entitled and duty bound to

make inquiry and investigation into the allegations made in

any complaint filed before them.

Page 52

55) The law applies equally and there is no privilege which

prohibits action of registration of a case by an authority that

has been empowered by the legislature to investigate the

cases relating to corruption and bring the offenders to book.

Simply because the officers happen to belong to the office of

the Hon'ble Speaker of the Legislative Assembly, the

provisions of the Lokayukt Act do not cease to apply to

them. The law does not make any differentiation and

applies to all with equal vigour. As such, the initiation of

action does not and cannot amount to a breach of privilege

of the Legislative Assembly, which has itself conferred

powers in the form of a statute to eradicate the menace of

corruption. It is, thus, clear that, no privilege is available to

the Legislative Assembly to give immunity to them against

the operation of laws.

56) In the present matter, the petitioners have not made

any inquiry even against the members of the Legislative

Assembly or the Speaker or about their conduct and,

therefore, the complaints made against the petitioners by

some of the members of the Legislative Assembly were

Page 53

completely uncalled for, illegal and unconstitutional. The

Speaker has no jurisdiction to entertain any such complaint,

which is not even maintainable.

57) Thus, it is amply clear that the Assembly does not enjoy

any privilege of a nature that may have the effect of

restraining any inquiry or investigation against the Secretary

or the Deputy Secretary of the Legislative Assembly.

58) Thus, from the above, it is clear that neither did the

House of Commons enjoy any privilege, at the time of the

commencement of the Constitution, of a nature that may

have the effect of restraining any inquiry or investigation

against the Secretary or the Deputy Secretary of the

Legislative Assembly or for that matter against the member

of the Legislative Assembly or a minister in the executive

government nor does the Parliament or the Legislative

Assembly of the State or its members. The laws apply

equally and there is no privilege which prohibits action of

registration of a case by an authority which has been

empowered by the legislature to investigate the cases.

Page 54

Simply because the officers belong to the office of the

Hon'ble Speaker of the Legislative Assembly, the provisions

of the Act do not cease to apply to them. The law does not

make any differentiation and applies to all with equal vigour.

As such, the initiation of action does not and cannot amount

to a breach of privilege of the Legislative Assembly, which

has itself conferred powers in the form of a Statute to

eradicate the menace of corruption.

59) The petitioners cannot, while acting under the said

statute, be said to have lowered the dignity of the very

Assembly which has conferred the power upon the

petitioners. The authority to act has been conferred upon

the petitioners under the Act by the Legislative Assembly

itself and, therefore, the action taken by the petitioners

under the said Act cannot constitute a breach of privilege of

that Legislative Assembly.

60) By carrying out investigation on a complaint received,

the petitioners merely performed their statutory duty and

did not in any way affect the privileges which were being

Page 55

enjoyed by the Assembly and its members. The action of the

petitioners did not interfere in the working of the House and

as such there are no grounds for issuing a notice for the

breach of Privilege of the Legislative Assembly.

61) Also, in terms of the provisions of Section 11(2) of the

Lokayukt Act, any proceeding before the Lokayukt shall be

deemed to be a judicial proceeding within the meaning of

Sections 193 and 228 of the Indian Penal Code and as per

Section 11(3), the Lokayukt is deemed to be a court within

the meaning of Contempt of Courts Act, 1971. The

petitioners have merely made inquiry within the scope of the

provisions of the Act and have not done anything against the

Speaker personally. The officers working under the office of

the Speaker are also public servants within the meaning of

Section 2(g) of the Lokayukt Act and, therefore, the Lokayukt

and his officers were entitled and duty bound to carry out

investigation and inquiry into the allegations made in the

complaint filed before them and merely because the

petitioners, after scrutinizing the relevant records, found the

allegations prima facie proved, justifying detailed

Page 56

investigation by the Special Police Establishment under the

Prevention of Corruption Act, and the performance of duty

by the petitioners in no way affects any of the privileges

even remotely enjoyed by the Assembly or its Members.

62) In the present matter, the petitioners have not made

any inquiry against any member of the Legislative Assembly

or the Speaker or about their conduct and, therefore, the

complaints made against the petitioners by some of the

members of Legislative Assembly were completely uncalled

for, illegal and unconstitutional.

63) Further, the allegations made in the complaint show

that while dealing with the first complaint (E.R. 127/05), the

Lokayukt found that there was no material to proceed

further and closed that matter since the allegations alleged

were not established. While inquiring into the second

complaint since the Lokayukt found that the allegations

made in the complaint were prima facie proved, SPE was

directed to proceed further in accordance with law.

Page 57

64) On behalf of the petitioners, it is pointed out that the

facts and circumstances in the present matter show that

complaints have been filed by the Members not in their

interest but for the benefit of the persons involved who all

are public servants. It is also pointed out that the action of

breach of privilege has been instituted against the

petitioners since the officers, against whom the investigation

has been launched, belong to the Vidhan Sabha Secretariat.

65) We are of the view that the action being investigated

by the petitioners has nothing to do with the proceedings of

the House and as such the said action cannot constitute any

breach of privilege of the House or its members.

66) It is made clear that privileges are available only insofar

as they are necessary in order that House may freely

perform its functions. For the application of laws,

particularly, the provisions of the Lokayukt Act, and the

Prevention of Corruption Act, 1988, the jurisdiction of the

Lokayukt or the Madhya Pradesh Special Police

Establishment is for all public servants (except the Speaker

Page 58

and the Deputy Speaker of the Madhya Pradesh Vidhan

Sabha for the purposes of the Lokayukt Act) and no privilege

is available to the officials and, in any case, they cannot

claim any privilege more than an ordinary citizen to whom

the provisions of the said Acts apply. Privileges do not

extend to the activities undertaken outside the House on

which the legislative provisions would apply without any

differentiation.

67) In the present case, the action taken by the petitioners

is within the powers conferred under the above statutes and,

therefore, the action taken by the petitioners is legal.

Further, initiation of action for which the petitioners are

legally empowered, cannot constitute breach of any

privilege.

68) Under the provisions of Section 39(1)(iii) of the Code of

Criminal Procedure, 1973, every person who is aware of the

commission of an offence under the Prevention of

Corruption Act is duty bound to give an information available

with him to the police. In other words, every citizen who has

Page 59

knowledge of the commission of a cognizable offence has a

duty to lay information before the police and to cooperate

with the investigating officer who is enjoined to collect the

evidence.

69) In the light of the above discussion and conclusion, the

impugned letters/notices are quashed and the writ petition is

allowed as prayed for. No order as to costs.

NEW DELHI;

FEBRUARY 25, 2014.

……….…………………………CJI.

(P. SATHASIVAM)

………….…………………………J.

(RANJAN GOGOI)

………….…………………………J.

(SHIVA KIRTI SINGH)

Page 60

On Friday, 28 February 2014 11:48 AM, Dipak Shah <djshah1944@gmail.com> wrote:

---------- Forwarded message ----------
From: Lawyersclubindia Newsletter <newsletter@lawyersclubindia.com>
Date: Fri, Feb 28, 2014 at 11:05 AM
Subject: Lawyersclubindia Update : 28/02/2014
To: Dipakkumar J Shah <djshah1944@gmail.com>

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