'Will Not Advance Public Justice': Kerala High Court Dismisses State's Plea To Withdraw Prosecution For 2015 Assembly Ruckus

Six members of CPI(M), including incumbent ministers EP Jayarajan and KT Jaleel, were booked under the Indian Penal Code and the Prevention of Damage to Public Property Act for creating a ruckus in the House while the budget was presented by the then State Finance Minister K M Mani. V Sivankutty, CK Sahadevan, K Ajith and K Kunhammed, who were MLAs then, are the other accused.

The Chief Judicial Magistrate, Thiruvananthapuram had dismissed the petition for withdrawal filed by the State under Section 321 of the Code of Criminal Procedure last year. Challenging the dismissal, the State and the accused filed revision petitions in the High Court.

While dismissing the petition, the Bench of Justice VG Arun emphasized that the laws relating to privileges and immunities would not lie in the present case, since these benefits were provided to uphold the smooth functioning of the House.

"The aforementioned acts, if proven to be true, can, by no stretch of imagination, be deemed to be acts done in furtherance of the free functioning of the house."

Justice Arun observed in the order the withdrawal of the case will not advance the interests of public justice :

"Although the learned Additional Advocate General argued that withdrawal from the prosecution in the instant case will advance the interest of public justice by ensuring that the prestige of the Legislative Assembly is not lowered in the eyes of the citizens, I am unable to accept the contention. It is for the elected representatives to uphold the prestige of the House and to face the consequences for the violations, if any committed".

On the applicability of privileges and immunities

The State through Additional Advocate General KK Ravindranath referred to Kaul and Shakder's Practice and Procedure of Parliament and asserted that a member could only be subjected to the discipline of the House and no proceedings against him would lie.

Counsel for the Leader of the Opposition Ramesh Chennithala, Advocate T Asaf Ali on the other hand pointed out an extract from the same that stated,

"a criminal act committed by a member within the House cannot be regarded as a part of the proceedings in the House for the purposes of protection."

The Court after discussing these principles, ruled in the negative.

It was reasoned,

"The answer can only be in the negative, since privileges and immunities are provided to ensure smooth functioning of the House by guaranteeing absolute freedom to the members to speak and participate in its deliberations. Here the allegation is of the functioning of the Assembly Session having been disrupted by the members by trespassing into the Speakers Dias and committing mischief…"

Importantly, the Court found that there was nothing to demonstrate the need to receive sanction from the Speaker to institute criminal proceedings against the Members, especially since it was found that the Members' actions were not protected by the laws of privileges and immunities.

On whether the state government could present a petition to vacate proceedings against the members.

After referring precedents, the Court found that the State could move a petition to vacate criminal proceedings, particularly if continuing the same would interfere with justice.

The Court pointed out that Section 321 of the Code of Criminal Procedure empowered a prosecutor to so do. In this light, the State could also make such a request, the Court ruled, and there was no requirement that the same prosecutor had to make such a request for withdrawal.

The Bench maintained,

"the scope of Section 321 cannot be further extended to hold that, challenge against an order passed on the petition should also be made by the same Prosecutor and not the Government. The contention goes against the very scheme of the Code of Criminal Procedure. The State is bestowed with the duty of prosecuting the offenders and Public Prosecutors are appointed under Section 24 of Cr.P.C to aid the State in that process."

However, the Prosecutor/Government was to make such a decision free of extraneous considerations, based on cogent reasoning.

Underscoring that a Court's examination of such a withdrawal request would not amount to judicial review, the Court nevertheless pointed out that the exercise would not be automatic.

"Even if appealing grounds are made in the application, the court can refuse to grant permission on finding that the withdrawal will not aid in advancement of public justice, which is the paramount consideration," the Court said.

However, in the context of the present case, the Court declared the contention specious, since the request for withdrawal of the case was originally made by the Assistant Public Prosecutor who was actually prosecuting the case before the Additional Chief Judicial Magistrate's Court (Special Court for MPs and MLAs) Ernakulam at the time.

On Public Order and members' duty to uphold the prestige of the House

 Rejecting the State's submission that continuing the prosecution would lower the prestige of the Legislative Assembly in the eyes of the citizens, Justice Arun commented,

"It is for the elected representatives to uphold the prestige of the House and to face the consequences for the violations, if any committed"

In its order, the Court also highlighted Clause 44 of the 'Code of Conduct for the Members of the Kerala Legislative Assembly', which exhorted members "to keep the fundamental duties listed in Part IV-A of the Constitution uppermost in their minds."

"One among the fundamental duties, as postulated by Article 51A (I), is to safeguard public property and to abjure violence", the Court records.

For these reasons, the Court declined to entertain the revision petition.

The Court emphasized that its remarks were made solely in the context of the proceedings at hand.