Kerala High Court
T.M. Jacob vs State Of Kerala And Anr. on 24 March, 1999
Equivalent citations: 1999CRILJ3609
JUDGMENT C.S. Rajan, J.
1. The petitioner is a member of the Kerala Legislative Assembly. He was formerly a Minister in charge of Irrigation. In the capacity as Minister for the Irrigation the petitioner had participated in the meeting of the subject committee for Irrigation constituted by the Legislative Assembly. The said committee met on 16-5-1995 and took certain decisions in respect of Karappara - Kuriyarkutty Project. In. 1997 a vigilance case was registered against several officers in respect of certain grave irregularities and charges of corruption. The petitipner was added as the 9th accused. Exhibit P-1 is a report submitted by the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Palakkad before the Enquiry Commissioner and Special Judge, Kozhikode. Exhibit P-1 discloses that the accused working in the capacity of Engineers in the State Irrigation Department entered into criminal conspiracy with the contractor and abused their official position as public servants and as a result of the acts and omissions caused wrongful loss of Rs. 150 lakhs to the Government and thereby obtained undue pecuniary advantage to themselves by corrupt and illegal means. In Exhibit P-1 report the petitioner was added as the 9th accused on the following information obtained by the investigating officer :
A-9 Sri. T. M. Jacob was the Minister of Irrigation and Culture. As on 1-7-1995, a division was formed for the K.K.I.P. and the work started on 15-7-1995 without the necessary requirement as mentioned supra. A subject committee meeting was held on 16-5-95 in which A-9 has mentioned that though financial sanction was not provided with, directions have been given for some work through Departmental execution. The meeting was convened by A-8 and A-9 who was the Chairman. When A-9 made the statement, A-8 though he was aware of the position that the necessary sanctions were not obtained for the concerned work and to begin the work without the necessary sanction is not permissible, he preferred to observe silent when he was responsible to talk. The statement of A-9 is linked with the silence of A-8 capable of inferring the consents between the two accused persons.
2. Thereafter the Governor of Kerala was approached for seeking sanction to prosecute the petitioner. Coming to know about the above development the petitioner as per Exhibit P-2 requested the Governor of Kerala to give him an opportunity of being heard before any decision is taken on the question of granting sanction. As per Exhibit P-3 the petitioner also requested the Governor to furnish him a copy of the order granting sanction.
3. This Original Petition has been filed mainly to quash all proceedings in the vigilance case No. 1/97 pending before the Court of Inquiry Commissioner and Special Judge, Kozhikode. The petitioner has also sought for declaration that the order of sanction granted by the Governor of Kerala is void, inoperative and unsustainable in law.
4. The main anchor of the argument of the petitioner is that a Minister and a Member of Legislative Assembly is protected under Article 194 of the Constitution of India and therefore, the petitioner cannot be prosecuted on the basis of a decision taken by a Legislature Committee. Exhibit P-1 shows that the criminal prosecution against the petitioner is based on his conduct as a Member of Legislature and a Minister who participated in the proceedings of the subject committee. No criminal liability can be fastened on the petitioner in respect of anything done by him as a member of the committee as no member of a legislature of a State shall be liable to be prosecuted in any Court in respect of such action.
5. Sri K. Ramakumar, learned counsel for the petitioner sought sustenance for the above argument from the recent ruling of the Supreme Court reported in P.V. Narasimha Rao v. State (1998) 4 SCC 626 : 1998 Cri LJ 2930. In order to understand the above ruling it is necessary to deal in detail about the various arguments and legal questions raised and decided in the above case.
6. The charge against the accused in the above case including Sri P. V. Narasimha Rao, former Prime Minister was as follows :
That you, P.V. Narasimha Rao, between July and August, 1993 at Delhi and Bangalore were party to a criminal conspiracy and agreed to or entered into an agreement with your co-accused Capt. Satish Sharma, Buta Singh, V. Rajeshwara Rao, H. M. Revenna, Ramalinga Reddy, Ml Veerappa Moily, D. K. Adikeshavulu, M. Thimmegowda, Bhajan Lal, JMM (Jharkhand Mukti Morcha) MPs Suraj Mandal, Shibu Soren, Simon Marandi, Shailendra Mahto (approver, since granted pardon on 8-4-1997), Janta Dal (Ajit Group) MPs Ajit Singh, Ram Lakhan Singh Yadav, Ram Sharan Yadav, Roshan Lal, Anadicharan Das, Abhay Pratap Singh, Haji Gulam Mohammed Khan and late G. C. Munda to defeat the no-confidence motion moved on 26-7-1993 against the then Congress (I) Government headed by you by illegal means, viz., to offer or cause to offer and pay gratification other than the legal remuneration to your co-accused persons namely JMM and Janta Dal (A) MPs named above as a motive or reward for their helping in defeating the said no-confidence motion moved by the opposition parties and in pursuance of the said agreement you paid or caused to pay several lakhs of rupees to the above-referred and Janta Dal (A) MPs who obtained or attempted to obtain the same in the manner stated above and thereby you have committed an offence punishable under Section 120 IPC read with Sections 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and within my cognizance.
Article 105 of the Constitution of India deals with the powers, privileges etc. of the Members of Parliament and the members of the committees. Under the above Article no Member of Parliament shall be liable to any proceedings in any Court in respect of any thing said or any vote given by him in Parliament or any committee thereof. The corresponding provision with regard to the members of State Legislatures is Article 194. There is no difference either in words or in contents regarding the two Articles. Therefore, it can be taken that whatever declared as law interpreting Article 105 is applicable to Article 194 also. The Supreme Court (judgment of Justice S. P. Bharucha) while dealing with the scope and ambit of Article 105 of the Constitution of India made the following observations :
109. By reason of Sub-article (1) of Article 105, Members of Parliament enjoy freedom of speech subject only to the provisions of the Constitution and the rules and standing orders regulating the procedure of Parliament. That express provision is made for freedom of speech in Parlia-mentin Sub-article (1) of Article 105 suggests that this freedom is independent of the freedom of speech conferred by Article 19 and unrestricted by the exceptions contained therein. This is recognition of the fact that Members need to be free of all constraints in the matter of what they say in Parliament if they are effectively to represent their constituencies in its deliberations. Sub-article (2) of Article 105 puts negatively what Sub-article (1) states affirmatively. Both sub-articles must be read together to determine their content. By reason of the first part of Sub-article (2) no Member is answerable in a Court of law or any similar tribunal for what he has said in Parliament. This again is recognition of the fact that a Member needs the freedom to say what he thinks is right in Parliament undeterred by the fear of being proceeded against. A vote, whether cast by voice or gesture or the aid of a machine, is treated as an extension. of speech or a substitute for speech and is given the protection that the spoken word has. Two comments need to be made in regard to the plain language of the first part of Sub-article (2).
First, what has protection is what has been said and a vote that has been cast, not something that might have been said but was not, or a vote that might have been cast but was not. Secondly, the protection is broad, being "in respect of. It is so given to secure the freedom of speech in Parliament that Sub-article (1) provides for. It is necessary, given the role Members of parliament must perform. The protection is absolute against Court proceedings that have a nexus with what has been said, or a vote that has been cast in Parliament.
7. The Supreme Court also came to the conclusion that broadly interpreted Article 105 protects a Member of Parliament against proceedings in Court that relate to, or concern, or have a connection or nexus with anything said, or a vote given by him in Parliament. Rejecting the argument of the learned Attorney General that a restrictive meaning must be given to Article 105 (2) of the Constitution the Supreme Court observed as follows :
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 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 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 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 was voted. While imputing no such motive to the present prosecution, it is not difficult to en visage a Member who has made a speech or cast a vote that is not to the liking of the powers that he 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.
8. On the other hand Sri M. K. Damodaran, learned Advocate, General argued that the pro-ceedi ngs in the subject committee meeting are not the subject matter of Prosecution. The prosecution was not launched on the basis of the decision in the subject committee. The petitioner is being prosecuted not for taking any decision in the subject committee meeting. Now the charge has been laid against the petitioner along with the other accused. The charge relates to various omissions and commissions on the part of the petitioner and abusing his official position as a Minister for Irrigation which helped the contractor to derive pecuniary advantage and causing huge loss to the exchequer.
8.1. The petitioner is relying on Exhibit P-1 report of the investigating officer in which a reference has been made to the petitioner who chaired the subject committee meeting. The petitioner has also produced Exhibit P-4, a true copy of the proceedings of the subject committee along with the reply affidavit. On the basis of these two documents the petitioner submits that no prosecution can be launched against him on the basis of his participation in the subject committee meeting. But a reading of the charge now framed against the petitioner shows that it is entirely different. The petitioner's participation is not the foundation of the charge. No prosecution has now been launched against the petitioner on the basis of his participation in the subject committee. As explained by the learned Advocate General the charge is under the Prevention of Corruption Act and various Sections of Indian Penal Code that the petitioner abused his official position and is guilty of corruption thus, allowing the contractor to derive pecuniary advantage which resulted in huge loss to the Government. As can be seen from Narasimha Rao's case the charge against Sri. Narasimha Rao and other Members of Parliament was that in order to defeat the non-confidence motion he offered illegal gratification to the co-accused as a motive or reward for their helping in defeating the non-confidence motion and pursuant to a criminal conspiracy several lakhs of rupees were paid. Therefore, the question before the Supreme Court was whether the conduct of the Members of Parliament in accepting the above bribe for voting against non-confidence motion has got any immunity from prosecution under Article 105 of the Constitution of India. Thus, the Supreme Court was of opinion that Article 105(2) protects a Member of Parliament against Proceedings in Court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament. On that basis the Supreme Court concluded that the alleged bribe-takers have the protection of Article 105(2) and are not answerable in a Court of law for the alleged conspiracy and agreement. But in this case the petitioner is not being proceeded against for any such conduct as a Member of Legislative Assembly in a proceedings in the Assembly or in the subject committee. Therefore, the petitioner cannot take refuge under the dictum laid down in the Narasimha Rao's case.
9. The other question which was pressed into service by Sri K. Ramakumar, learned counsel for the petitioner is that he should have been given an opportunity of being heard before sanction was granted by the Governor of Kerala. But I do not think that the petitioner is entitled to be heard before granting sanction to prosecute him by the Governor. The Supreme Court has occasion to consider this aspect in a number of decisions. In the ruling reported in A. Veeraswamy v. Union of India 1991 (3) SCC 655, the Supreme Court held that there is no law which mandates that opportunity must be given to a delinquent before registration of the case. The same view was reiterated in the ruling reported in State of Bihar v. P.P. Sharma 1992 Supp (1) SCC 222 : 1991 Cri LJ 1438. These two rulings were relied on with approval in a subsequent ruling reported in State of Maharashtra v. Ishwar Piraji Kalpatri (1996) 1 SCC 542 : 1996 Cri LJ 1127. Thus, it is now well settled that the order of sanction is only an administrative act and not a quasi judicial one. Therefore, before granting sanction the authority or the appropriate Government is not bound to give an opportunity of being heard to the delinquent/ accused. The reasoning behind this line of thinking is that the accused is getting a full opportunity to prove his innocence during the trial and a pre-trial opportunity is not contemplated.
10. The petitioner has also got a case that the prosecution now launched against him is mala fide and politically motivated. The petitioner is relying on Exhibits P-6 and P-7 press reports where the Chief Minister has alleged to have stated that the petitioner would be prosecuted on the basis of the allegations regarding the Kuriyarkutty Karappara project. The question whether a prosecution can be interfered with in the initial stage on the ground of mala fide is also not a matter which has not been dealt with by the Supreme Court. In the ruling reported in State of Bihar v. J.A.C. Saldanha 1980(l) SCC 55 : 1980 Cri LJ 98 the Supreme Court held that if an information is lodged at the Police Station and offence is registered, the mala fide of the informant would be of secondary importance. In Bhajan Lal's case 1992 Supp (1) SCC 335 : 1992 Cri LJ 604 the Supreme Court permitted the State Government to investigate the offences afresh against Bhajan Lal, a former Chief Minister of Haryana Government in spite of the fact that prosecution has been launched at the instance of a person who was inimical towards Bhajan Lal. In a later decision reported in State of Maharashtra v. Ishwar Piraji Kalpatri (1996) 1 SCC 542 : 1996 Cri LJ 1127 also the Supreme Court upheld the above view that if the complaint which is made is correct and offence had been committed which will have to be established before a Court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. But the mere fact that the complainant was guilty of mala fides would be no ground for quashing the prosecution. Mala fide intention of the person cannot be a reason for preventing the Court from proceeding with a complaint and to decide the same on the basis of the evidence adduced before the Court.
11. I am also bearing in mind the caution given by the Supreme Court while exercising the power of quashing criminal proceedings that it must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. Therefore, I do not think that the petitioner is justified in seeking the relief of quashing the criminal proceedings now taken against him. Therefore, the Original Petition is dismissed.