Law Confers Immunity, Not Men; Apex Court Provides That Officers Enjoy Immunity Only to the Extent Expressly Provided by the Act

8/12/2019 Law Confers Immunity, Not Men; Apex Court Provides That Officers Enjoy Immunity Only to the Extent Expressly

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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.S!"#$%&' CJI.

1) The present rit petition! under "rticle #$ of the

%onstitution of ndia! has 'een filed 'y the petitioners

challenin the alidity of certain letters issued 'y Mr. *a+i

",li-uddin Secretary! Vidhan Sa'ha (Respondent /o.0

herein) on arious dates aainst the- ith reard to a case

reistered 'y the Special Police sta'lish-ent (SP) of the

2o3ayu3t Oranisation! aainst the officials of the Vidhan

Sa'ha Secretariat as ell as aainst the concerned officials

of the %apital Pro4ect "d-inistration5the %ontractor

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%o-pany allein irreularity in the construction or3

carried out in the pre-ises of Vidhan Sa'ha.

$) t is releant to -ention that Petitioner /o.1 herein as

the 2o3ayu3t of the State of Madhya Pradesh appointed

under the proisions of the Madhya Pradesh 2o3ayu3t a-

6plo3ayu3t "ct! 1781 (hereinafter referred to as 9the

2o3ayu3t "ct:). Petitioner /o.$ as the 2eal "disor! a

-e-'er of the Madhya Pradesh ;iher Judicial Serice on

deputation ith the 2o3ayu3t and Petitioner /os. # to < ere

the officers of Madhya Pradesh Special Police sta'lish-ent.

#) The petitioners herein clai-ed that the said letters

iolate their funda-ental rihts under "rticles 10! 17 and $1

of the %onstitution of ndia and are contrary to "rticle 170(#)

and prayed for the issuance of a rit! order or direction(s)

,uashin the said letters as ell as the co-plaints filed 'y

Respondent /os. pired)! ?! 8 and 7 herein.

0) B$* *+!#

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(a) "n anony-ous co-plaint as receied on $1.@=.$@@penditure of a'out Rs. $ crores! as 'ein constructed

ithout initin tenders and co-plyin ith the prescri'ed

procedure. t as also aerred in the said co-plaint that

ith a ie to reulari+e the a'oe5said or3s! the officers

-isused their official position and ot the or3 sanctioned to

the %apital Pro4ect "d-inistration in iolation of the rules

hich a-ounts to serious financial irreularity and -isuse of

office. t as also -entioned in the said co-plaint that in

order to construct the said road! one hundred trees had 'een

cut don ithout ettin the per-ission fro- the concerned

depart-ent. The said co-plaint as reistered as .R.

/o.1$? of $@@


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(') On $$.1$.$@@=! aain a co-plaint as filed 'y one Shri

P./. Tiari! supported ith affidait and arious docu-ents!

allein the sa-e irreularities in the said construction or3

'y the officers of the Vidhan Sa'ha Secretariat in collusion

ith the %apital Pro4ect "d-inistration hich ot reistered

as .R. /o. 1$$ of $@@=. " copy of the said co-plaint as

sent to the Principal Secretary! Madhya Pradesh

Boern-ent! ;ousin and niron-ent Depart-ent for

co--ents. n reply! the "dditional Secretary! M.P.

Boern-ent! ;ousin and niron-ent Depart-ent

su'-itted the co--ents alon ith certain docu-ents

statin that the Auildin %ontroller Diision or3in under

the %apital Pro4ect "d-inistration as transferred to the

ad-inistratie control of the Vidhan Sa'ha Secretariat ide

Order dated 1?.@?.$@@@ and conse,uently the Secretariat

Vidhan Sa'ha as solely responsi'le for the construction

and -aintenance or3 ithin the Vidhan Sa'ha pre-ises.

(c) On $=.@=.$@@?! a re,uest as -ade to the Principal

Secretary! ;ousin and niron-ent Depart-ent to su'-it

all the releant records! tender docu-ents! note sheets!

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ad-inistratie! technical and 'udetary sanctions 'y

[email protected]@.$@@?. Ay letter dated 1?.@?.$@@?! the 6nder

Secretary of the said Depart-ent infor-ed that since the

ad-inistratie sanctions ere issued 'y the Secretariat

Vidhan Sa'ha! the -aterials ere not aaila'le ith the-.

n ie of the said reply! the 2o3ayu3t5(Petitioner /o.1

herein) sent letters dated #1.@?.$@@? addressed to the

Principal Secretary! ;ousin and niron-ent Depart-ent!

"d-inistrator! %apital Pro4ect "d-inistration and the Deputy

Secretary! Vidhan Sa'ha Secretariat to appear 'efore hi-

alon ith all the releant records on 1@.@8.$@@?. On

1@.@8.$@@?! the Principal Secretary! ;ousin and

niron-ent appeared 'efore the 2o3ayu3t and infor-ed

that since the %ontroller Auildins of %apital Pro4ect

"d-inistration as or3in under the ad-inistratie control

of the Vidhan Sa'ha Secretariat since $@@@! all

sanctionsCapproals and records relatin to construction and

-aintenance or3 ere aaila'le in the Vidhan Sa'ha

Secretariat. n ie of the a'oe reply! the 2o3ayu3t

su--oned the Secretary and the Deputy Secretary! Vidhan

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Sa'ha! Respondent /os. 1@ and 11 respectiely on

$0.@8.$@@? to ie eidence and produce all recordsCnote5

sheets of ad-inistratie and technical sanctions and

'udetary and tender approals relatin to construction

or3s carried out in M2" Rest ;ouse and Vidhan Sa'ha

Pre-ises in the year $@@


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1#.@7.$@@? and 18.@7.$@@? respectiely! the 2eal "disor

Petitioner /o. $ herein a -e-'er of the M.P. ;iher Judicial

Serice thorouhly e>a-ined the sa-e and found that it is a

fit case to 'e sent to the SP for ta3in action in accordance

ith la. Petitioner /o.1 as in aree-ent ith the said

opinion. Thereafter! %ri-e %ase /o. ##C@? as reistered

aainst the Secretary! Vidhan Sa'ha (Respondent /o.1@

herein)! Shri ".P. Sinh! Deputy Secretary! Vidhan Sa'ha! the

then "d-inistrator! Superintendent nineer! %apital Pro4ect

"d-inistration and %ontractors on @=.1@.$@@?.

(f) "fter reistration of the case! Petitioner /o.1 receied

the i-puned letters dated 1plained the

factual position of Petitioner /o.1 herein statin that no case

of 'reach of priilee as -ade out and also pointed out

that neither any co-plaint had 'een receied aainst the

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;on'le Spea3er nor any in,uiry as conducted 'y the

2o3ayu3t Orani+ation aainst hi- nor his na-e as found

in the FR.

() On $=.1@.$@@?! the Secretary! Vidhan Sa'ha

Respondent /o.0 sent si> letters statin that the reply dated

$#.1@.$@@? is not accepta'le and that indiidual replies

should 'e sent 'y each of the petitioners.

(h) Aein arieed 'y the initiation of action 'y the

;on'le Spea3er for 'reach of priilee! the petitioners hae

preferred this rit petition.


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=) Mr. G.G. Venuopal! learned senior counsel for the

petitioners raised the folloin contentionsH5

(i) Ehether the 2eislatie "sse-'ly or its Me-'ers en4oy

any priilee in respect of an in,uiry or an inestiation into

a cri-inal offence punisha'le under any la for the ti-e

'ein in force! een hen in,uiry or inestiation as

initiated in perfor-ance of duty en4oined 'y la enacted 'y

the ery 2eislatie "sse-'ly of hich the 'reach of

priilee is alleedI

(ii) Ehether officials of the 2eislatie "sse-'ly also en4oy

the sa-e priilees hich are aaila'le to "sse-'ly and its

Me-'ersI

(iii) Ehether see3in -ere infor-ation or callin the officials

of Vidhan Sa'ha Secretariat for proidin infor-ation durin

in,uiry or inestiation a-ounts to 'reach of priileeI

(i) n ie of the letter dated $#.@8.$@@?! sent 'y the

Principal Secretary to Respondent /os. 1@ and 11! i.e.!

Secretary and Deputy Secretary! Vidhan Sa'ha respectiely

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directin the- to appear 'efore the 2o3ayu3t (as per the

order of the Spea3er)! hether Respondent /os. 1@ and 11

can hae any rieance that infor-ation as souht fro-

the- ithout sanction and 3nolede of the Spea3erI

?) On 'ehalf of the respondents! particularly! Respondent

/o.05Secretary! Vidhan Sa'ha! Mr. %.D. Sinh! at the

fore-ost su'-itted that the present petition under "rticle #$

of the %onstitution of ndia ino3in rit 4urisdiction of this

%ourt is not -aintaina'le as no funda-ental riht of the

petitioners! as enisaed in Part of the %onstitution! has

'een iolated 'y any of the actions of Respondent /o. 0. t

is their stand that eery action pertainin to the "sse-'ly

and its ad-inistration is ithin the do-ain and 4urisdiction of

the ;on'le Spea3er. The -atter of priilee is oerned

under the rules as contained in %hapter of the Rules of

Procedure and %onduct of Ausiness in the Madhya Pradesh

Vidhan Sa'ha. ;ence! it is stated that the rit petition is

lia'le to 'e dis-issed 'oth on the round of -aintaina'ility

as ell as on -erits.

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8) Aefore considerin rial contentions and the leal

position! it is useful to recapitulate the *+!/ !$#and

%-! #!!/!, ,%$#$,-#hich are as underH5

The leislature of the %entral Proince and Aerar

enacted the %entral Proinces and Aerar Special Police

sta'lish-ent "ct! 170? (hereinafter referred to as Kthe SP

"ct). 6nder the said "ct! a Special Police Force as

constituted hich has poer to inestiate the offences

notified 'y the State Boern-ent under Section # of the said

"ct! hich reads as underH5

43. O**-+# !, 5 $-%#!$! 5 S+$ P,$+E#!5$#"&-!H5 The State Boern-ent -ay! 'y

notifications! specify the offences or classes of offenceshich are to 'e inestiated 'y (Madhya Pradesh) SpecialPolice sta'lish-ent.:

7) On [email protected]! 2eislatie "sse-'ly of the State of

Madhya Pradesh enacted the 2o3ayu3t "ct ith the folloin

o'4ectie as has 'een stated in the prea-'le of the said

"ctH5

9"n "ct to -a3e proision for the appoint-ent andfunctions of certain authorities for the en,uiry into thealleation aainst 9Pu'lic Serants: and for -attersconnected there ith.:

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Section $(a) of the 2o3ayu3t "ct defines 9officer: in the

folloin -annerH5

9officer: -eans a person appointed to a pu'lic serice orpost in connection ith the affairs of the State of MadhyaPradesh.:

Section $(') defines 9alleation: as follosH5

9alleation: in relation to a pu'lic serant -eans anyaffir-ation that such pu'lic serant!

(i) has a'used his position as such to o'tain any ain or

faour to hi-self or to any other person or to cause unduehar- to any personL

(ii) as actuated in the dischare of his functions as suchpu'lic serant 'y i-proper or corrupt -otiesL

(iii) is uilty of corruptionL or

(i) is in possession of pecuniary resources or propertydisproportionate to his 3non sources of inco-e and suchpecuniary resources or property is held 'y the pu'lic

serant personally or 'y any -e-'er of his fa-ily or 'yso-e other person on his 'ehalf.

E-!$,-5 For the purpose of this su'5clause 9fa-ily:-eans hus'and! ife! sons and un-arried dauhters liin4ointly ith hi-L:

The phrase 9Pu'lic Serant: has 'een defined under Section

$() of the 2o3ayu3t "ct in the folloin ter-sH

9Pu'lic Serant: -eans a person fallin under any of thefolloin cateories! na-elyH5

(i) MinisterL

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(ii) a person hain the ran3 of a Minister 'ut shall notinclude Spea3er and Deputy Spea3er of the MadhyaPradesh Vidhan Sa'haL

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

(i) an officer of an "pe> Society or %entral Society ithinthe -eanin of %lause (t51) read ith %lauses (a51)! (c51)and (+) of Section $ of the Madhya Pradesh %o5operatieSocieties "ct! 17=@ (/o. 1? of 17=1).

() "ny person holdin any office in! or any e-ployee of 5

(i) a Boern-ent %o-pany ithin the -eanin ofSection =1? of the %o-panies "ct! 17


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role of the 2o3ayu3t and the 6p52o3ayu3t in the folloin

ter-sH5

47. M!!# 8"$+" & 5 -9/$ $-!, 5 L,:/:!, U;L,:/:!;

Su'4ect to the proision of this "ct! on receiin co-plaintor other infor-ationH5

(i) the 2o3ayu3t -ay proceed to en,uire into an alleation-ade aainst a pu'lic serant in relation to ho- the%hief Minister is the co-petent authority.

(ii) the 6p52o3ayu3t -ay proceed to en,uire into an

alleation -ade aainst any pu'lic serant other thanreferred to in clause (i)

Proided that the 2o3ayu3t -ay en,uire into an alleation-ade aainst any pu'lic serant referred to in clause (ii).

E-!$,-; For the purpose of this Section! thee>pression 9-ay proceed to en,uire:! and 9-ay en,uire:!include inestiation 'y Police aency put at the disposalof 2o3ayu3t and 6p52o3ayu3t in pursuance of su'5Section(#) of Section 1#.

11) On 10.@7.$@@@! the State Boern-ent issued a

notification in e>ercise of poers under Section # of the SP

"ct 'y hich the Special Police sta'lish-ent as

e-poered to inestiate offences ith reard to the

folloin offencesH5

(a) Offences punisha'le under the Preention of %orruption"ct! 1788 (/o. 07 of 1788)L

(') Offences under Sections 0@7 and 0$@ and %hapter Vof the ndian Penal %ode! 18=@ (/o. 2V of 18=@) henthey are co--itted! atte-pted or a'used 'y pu'lic

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serants or e-ployees of a local authority or a statutorycorporation! hen such offences adersely affect theinterests of the State Boern-ent or the local authority orthe statutory corporation! as the case -ay 'eL

(c) %onspiracies in respect of offences -entioned in ite-(a) and (') a'oeL and

(d) %onspiracies in respect of offences -entioned in ite-(a) and (') shall 'e chared ith si-ultaneously in one trialunder the proisions of %ri-inal Procedure %ode! 17?# (/o.$ of 17?0).

1$) "s per the proision of Section 0 of the SP "ct! the

superintendence of inestiation 'y the M.P. Special Police

sta'lish-ent as ested in the 2o3ayu3t appointed under

the 2o3ayu3t "ct.

1#) On $$.1$.$@@=! a co-plaint as receied fro- one Shri

P./. Tiari supported 'y affidait and arious docu-ents

-a3in alleations that or3s had 'een carried out in the

ne "sse-'ly 'uildin 'y the %apital Pro4ect "d-inistration

in ross iolation of the rules! ithout -a3in 'udetary

proisions and co--ittin financial irreularities. The said

co-plaint as reistered as .R. 1$$ of $@@=. n the said

co-plaint! it as -entioned thatH

(a) "n order had 'een issued to the "d-inistrator! %apital

Pro4ect "d-inistration 'y Shri ".P. Sinh! Deputy

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Secretary! Vidhan Sa'ha iin ad-inistratie approal

for the esti-ate of the cost of construction aainst

rules and ithout -a3in 'udetary proision ide

order dated 17.1@.$@@< in respect of the folloin

or3sH

S.N,. N& ,* 8,:# A&,/-! $-:"#

(i) %onstruction of #@ roo-s in M2" Rest;ouse Aloc35$

Rs.


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(c) %onstruction of road fro- Rotary toSecretariat

Rs. 1$.@@

Total sanctioned a-ount Rs. $@0.

Vidhan Sa'ha and other Ministers on @#.@8.$@@


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construction! 'ut the ad-inistratie approal

dated 17.1@.$@@< as accorded 'y Shri ".P. Sinh!

Deputy Secretary! Vidhan Sa'ha in respect of ne

or3s of total alue of Rs. 1=@.?= la3h.

(iii) Eor3s of the alue of Rs. 1=@.?= la3h ere carried

out ithout any 'udetary proision and also

ithout the approal of the Finance Depart-ent.

Further-ore! a proposal had 'een sent 'y the

%apital Pro4ect "d-inistration for sanction of

'udet 'ut the sa-e as not approed 'y the

Finance Depart-ent. en then the or3s ere

ot e>ecuted.

(i) "s per the approal dated 17.1@.$@@

e>penditure as to 'e incurred fro- the -ain

'udetary head $$1? hich is the head of 6r'an

Deelop-ent. Fro- that head! construction

actiities in the Vidhan Sa'ha pre-ises could not

'e carried out.

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() The %ontroller Auildins! %apital Pro4ect (Vidhan

Sa'ha) e>ecuted the or3s in collusion ith the

other officers and in iolation of the rules. t as

stated that the officials had a'used their poers to

reulari+e their irreular actiities. The or3s had

'een underta3en for the personal 'enefit of so-e

officers and pay-ents ere -ade in iolation of

the rules.

10) Ay letter dated @0.@1.$@@?! a copy of the co-plaint

as sent to the Principal Secretary! Madhya Pradesh

Boern-ent! ;ousin and niron-ent Depart-ent callin

factual co--ents alon ith the releant docu-ents. The

co--ents ere su'-itted 'y the "dditional Secretary! M.P.

Boern-ent! ;ousin and niron-ent Depart-ent ide

letter dated 1


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-aintenance or3s ithin the Vidhan Sa'ha pre-ises. On

e>a-ination of the co--ents receied alon ith the

supportin docu-ents! folloin discrepancies ere

reealedH

(a) Ehereas the co--ents stated that 'udet proision

had 'een -ade for an a-ount of [email protected]


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dated $1.@#.$@@< that ad-inistratie approal had

'een accordedL and

(d) Ehereas the co--ents stated that a-ended sanction

as ranted ide order dated 17.1@.$@@

letter dated 17.1@.$@@< does not indicate that it as an

a-ended ad-inistratie sanction.

1


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Auildins! Vidhan Sa'ha! %apital Pro4ect "d-inistration ere

su--oned to ie eidence and produce all recordsCnote5

sheets of ad-inistratie and technical sanctions and

'udetary and tender approals relatin to construction

or3s carried out in M2" Rest ;ouse and Vidhan Sa'ha

pre-ises in the year $@@


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18) Thereafter! D.O. letter dated 10.@8.$@@? as receied

fro- the Principal Secretary! Vidhan Sa'ha statin that as

per the direction of the ;on'le Spea3er! he as infor-in

the 2o3ayu3t Orani+ation thatH

(a) The Vidhan Sa'ha Secretariat as not aare as to the

co-plaint hich as 'ein in,uired intoL

(') "ll proceedins relatin to initation of tenders!

technical sanction! or3 orders and pay-ent etc. ere

conducted throuh the %ontroller Auildins! %apital

Pro4ect "d-inistration and! therefore! all the records

relatin to these or3s should 'e aaila'le ith the-L

(c) f! a copy of the co-plaint! hich is 'ein in,uired into!

is -ade aaila'le to the Vidhan Sa'ha Secretariat! it

ould 'e possi'le to -a3e the position -ore clear.

That as the reason hy the Spea3er had not ranted

per-ission to the Deputy Secretary to appear in the

Office of the 2o3ayu3tL and

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(d) 6nder the proisions of Section $()(ii) of the 2o3ayu3t

"ct! the Spea3er! the Deputy Spea3er and the 2eader of

Opposition are e>e-pted fro- the 4urisdiction of the

2o3ayu3t.

17) Shri srani appeared 'efore the 2o3ayu3t on

$0.@8.$@@? hen his deposition as recorded. n his

deposition! he stated that the ad-inistratie approal to the

esti-ated cost dated 17.1@.$@@< as ien! hich as

aaila'le ith the office of the 2o3ayu3t. ;e further stated

that note5sheet relatin to ad-inistratie approal had 'een

prepared hich as in possession of the Spea3er.

"ccordinly! he as re,uired to produce the sa-e 'y

@?.@7.$@@?.

$@) nfor-ation as called for fro- the %hief nineer!

Pu'lic Eor3s Depart-ent! %apital Pro4ect "d-inistration!

%ontroller Auildins! Vidhan Sa'ha! %apital Pro4ect

"d-inistration and %hief nineer! Pu'lic Eor3s

Depart-ent. The sa-e as receied ide letters dated

11.@7.$@@?! 1#.@7.$@@? and 18.@7.$@@? respectiely.

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$1) Scrutiny note as prepared 'y the 2eal "disor! Mrs.

Vi'haari Joshi! a -e-'er of the Madhya Pradesh ;iher

Judicial Serice! on deputation to the 2o3ayu3t Orani+ation!

ith the assistance of the Technical %ell! ith the approal

of the 2o3ayu3t. "fter e>a-ination of the infor-ation and

records receied fro- the arious authorities concerned! she

prima faciefound esta'lished thatH

(a) contracts in respect of construction of roads and

reception pla+a and renoation of toilets ere aarded at

rates hiher than the preailin ratesL

(') or3s ere ot e>ecuted een hen there ere no

'udetary proisions. De-and for 'udet as -ade fro-

the Finance Depart-ent 'ut the sa-e had not 'een

acceptedL

(c) ne construction or3s of the alue of Rs. 1?#.ecuted fro- the -aintenance head! hich as

not per-issi'le! since the -aintenance head is -eant for

-aintenance or3s and not for ne or3sL

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(d) for ne construction or3s of the alue of Rs.1?#.ecuted and it is only thereafter -easure-ents of Aitu-en

or3 are recorded. Discrepancies in the recordin of

-easure-ents create dou'tL

() Rules proide that in the /otice nitin Tenders (/T)!

schedule of ,uantities is anne>ed so that the tenderers -ay

-a3e proper assess-ent hile ,uotin rates! 'ut in the

present case! in the /T for roads in Schedule5! ,uantities

ere not specified. So! it as difficult for the tenderers to

27


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-a3e proper assess-ent hile ,uotin rates. This thros

dou't on the leiti-acy of the process.

(h) (i) Road as to 'e constructed ithin the dia-eter of

#@@ -eters. For this s-all area! or3 as split up into

fie portions and four contractors ere enaed. Rules

proide that for one road! there should 'e one

esti-ate! one technical sanction and one /T. n the

present case! fie esti-ates ere prepared! fie

technical sanctions ere ranted! fie tenders ere

inited and four contractors ere enaed. This thros

dou't on the leiti-acy of the processL

(ii) There are three processes inoled in the

construction of roads! i.e.! EAM! Aitu-en and

ther-oplastic. "s per the rules and practice! for all the

three processes! there should 'e one tender! 'ut in the

present case! the or3 as split up into three portions

inas-uch or3 of EAM as ien to to contractors!

or3 of Aitu-en to one other and or3 of ther-oplastic

to still anotherL

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(iii) %e-ent concrete road as constructed for a s-all

part of the sa-e road. For this s-all part of the road

another separate /T as inited and or3 as

aarded to a separate contractor! i.e.! the fifth

contractorL

(i) The Secretary and the Deputy Secretary of Vidhan

Sa'ha Secretariat and "d-inistrator! Superintendin

nineer and %ontroller Auildins of %apital Pro4ect

"d-inistration in collusion ith the contractors! in order to

ie undue 'enefits to the- 'y a'usin their official position

caused loss of Rs.1$!=$!@1=C5 to Rs.$@!?1!7?8C5 to the

Boern-ent.

n ie of the a'oe! the 2eal "disor (Petitioner /o.$

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

the SP for ta3in action in accordance ith la. The

2o3ayu3t Petitioner /o. 1 areed ith the note of the 2eal

"disor and o'sered that it is a fit case to 'e dealt ith

further 'y the SP. The case as accordinly sent to the

SP.

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$$) The SP! thereafter! reistered %ri-e %ase /o. ##C@?

on @=.1@.$@@? aainst Shri Ahaan De srani! Secretary

Vidhan Sa'ha! Shri ".P. Sinh! Deputy Secretary Vidhan

Sa'ha! the then "d-inistrator! Superintendin nineer!

%apital Pro4ect "d-inistration and %ontractors. Soon after

the reistration of the cri-inal case! the petitioners receied

the i-puned notices dated 1


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the Spea3er! Respondent /o. 1 nor any in,uiry as

conducted 'y the 2o3ayu3t Orani+ation aainst hi- nor as

he na-ed in the FR.

$0) Respondent /o. 0! i.e.! Secretary! Vidhan Sa'ha!

thereafter sent si> letters dated $=.1@.$@@? to the

petitioners. Ay the said letters! the petitioners ere

infor-ed that the reply dated $#.1@.$@@? had not 'een

accepted and it as directed that indiidual replies should

'e sent 'y each of the petitioners. Aein arieed 'y the

initiation of action 'y the Spea3er for 'reach of priilee

aainst the petitioners! as noted a'oe! the petitioners

herein filed the present rit petition.

M$-!$-5$$! ,* !" 8$! !$!$,- /- A!$+ 32 ,*!" C,-#!$!/!$,-

$


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consideration of the ;on'le Spea3er! su'-itted that the

proper course ould 'e to su'-it their response and rit

petition under "rticle #$ of the %onstitution of ndia is not

-aintaina'le.

$=) Mr. Venuopal! learned senior counsel for the

petitioners su'-itted that as the i-puned proceedins

hich are -ere letters callin for response as they relate to

'reach of priilee! a-ount to iolation of rihts under

"rticle $1 of the %onstitution! hence! the present rit

petition is -aintaina'le. n support of his clai-! he referred

to arious decisions of this %ourt.

$?) There is no dispute that all the i-puned proceedins

or noticesClettersCco-plaints -ade 'y arious -e-'ers of

the Madhya Pradesh "sse-'ly clai-ed that the rit

petitioners iolated the priilee of the ;ouse. 6lti-ately! if

their replies are not accepta'le! the petitioners hae no

other re-edy e>cept to face the conse,uence! na-ely!

action under Madhya Pradesh Vidhan Sa'ha Procedure and

%onduct of Ausiness Rules! 17=0. f any decision is ta3en 'y

32


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the ;ouse! the petitioners -ay not 'e in a position to

challene the sa-e effectiely 'efore the court of la. n

The Bengal Immunity Company Limited s. The State

of Bihar and Others! 17 hich is not

lafully leia'le on the petitioners and for other ancillary

reliefs. "s in the case on hand! it has 'een arued 'efore

the seen5Jude Aench that the application as pre-ature!

for there has! so far! 'een no inestiation or findin on facts

and no assess-ent under Section 1# of the "ct. Re4ectin

the said contention! this %ourt held thusH

9. n the first place! it inores the plain fact that thisnotice! callin upon the appellant co-pany to forthith etitself reistered as a dealer! and to su'-it a return and todeposit the ta> in a treasury in Aihar! places upon itconsidera'le hardship! harass-ent and lia'ility hich! if

33


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the "ct is oid under article $=< read ith article $8=constitute! in presenti! an encroach-ent on and aninfrine-ent of its riht hich entitles it to i--ediatelyappeal to the appropriate %ourt for redress. n the ne>tplace! as as said 'y this %ourt in Commissioner of

Police, Bombay s. Gordhandas Bhanji! 17pect the person sered ith such an orderor notice to inore it on the round that it is illeal! for hecan only do so at his on ris3 and that a person placed insuch a situation has the riht to 'e told definitely 'y the

proper leal authority e>actly here he stands and hathe -ay or -ay not do.

"nother plea adanced 'y the respondent State isthat the appellant co-pany is not entitled to ta3eproceedins prayin for the issue of preroatie ritsunder article $$= as it has ade,uate alternatie re-edyunder the i-puned "ct 'y ay of appeal or reision. Theanser to this plea is short and si-ple. The re-edy underthe "ct cannot 'e said to 'e ade,uate and is! indeed!nuatory or useless if the "ct hich proides for such

re-edy is itself ultra viresand oid and the principle reliedupon can! therefore! hae no application here a partyco-es to %ourt ith an alleation that his riht has 'een oris 'ein threatened to 'e infrined 'y a la hich is ultraviresthe poers of the leislature hich enacted it and assuch oid and prays for appropriate relief under article$$=. "s said 'y this %ourt in immatlal arilal !ehtas. The State of !adhya Pradesh "supra#this plea ofthe State stands neatied 'y the decision of this %ourt inThe State of Bombay s. The $nited !otors "India#Ltd% "supra#. Ee are! therefore! of the opinion! for

reasons stated a'oe! that the ;ih %ourt as not riht inholdin that the petition under article $$= as-isconceied or as not -aintaina'le. t ill! therefore!hae to 'e e>a-ined and decided on -erits. .:

$8) n &ast India Commercial Co%, Ltd%, Calcutta and

'nothers. The Collector of Customs, Calcutta,17=#N

34


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9..The respondent proposed to ta3e action under Section1=?(8) of the Sea %usto-s "ct! read ith Section #($) ofthe "ct. t cannot 'e denied that the proceedins underthe said sections are ,uasi54udicial in nature. Ehether astatute proides for a notice or not! it is incu-'ent upon

the respondent to issue notice to the appellants disclosinthe circu-stances under hich proceedins are souht to'e initiated aainst the-. "ny proceedins ta3en ithoutsuch notice ould 'e aainst the principles of natural4ustice. n the present case! in our ie! the respondentrihtly issued such a notice herein specific actsconstitutin contraentions of the proisions of the "cts forhich action as to 'e initiated ere clearly -entioned."ssu-in that a notice could 'e laconic! in the presentcase it as a spea3in one clearly specifyin the alleedact of contraention. f on a readin of the said notice! it is

-anifest that on the assu-ption that the facts alleed oralleations -ade therein ere true! none of the conditionslaid don in the specified sections as contraened! therespondent ould hae no 4urisdiction to initiateproceedins pursuant to that notice. To state it differently!if on a true construction of the proisions of the said tosections the respondent has no 4urisdiction to initiateproceedins or -a3e an in,uiry under the said sections inrespect of certain acts alleed to hae 'een done 'y theappellants! the respondent can certainly 'e prohi'ited fro-proceedin ith the sa-e. Ee! therefore! re4ect this

preli-inary contention.:

$7) n (iran Bedi ) Ors% s. Committee of In*uiry )

'nr% 1787N 1 S%R $@! hich is also a three Jude Aench

decision! the folloin conclusion in the penulti-ate

pararaph is releantH

90? "s reards points ()! (i) and (ii) suffice it to pointout that the petitioners hae apart fro- filin special leaepetitions also filed rit petitions challenin the ery sa-eorders and since e hae held that the action of the%o--ittee in holdin that the petitioners ere not coered

36


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that no proceedin as initiated aainst ;on'le Spea3er or

Me-'ers of the ;ouse 'ut only relatin to the officers in

respect of contractual -atters! if urent interention is not

souht for 'y e>ercisin e>traordinary 4urisdiction!

undou'tedly! it ould cause pre4udice to the petitioners.

#@) "ccordinly! e re4ect the preli-inary o'4ection raised

'y the counsel for Respondent /o.0 and hold that rit

petition under "rticle #$ is -aintaina'le.

#1) Eith the a'oe factual 'ac3round and the releant

statutory proisions! let us &$- !" $%

#/5&$##$,-#.

#$) /o! e ill consider the contentions raised 'y Mr.

Venuopal. "s -entioned earlier! Petitioner /o. 1 is the

2o3ayu3t appointed under the proisions of the 2o3ayu3ta

"ct e>ercisin poers and functions as proided under the

"ct. n the course of the perfor-ance of the said functions!

the 2o3ayu3t Orani+ation receied a co-plaint reardin

certain irreularities in the aard of contracts. Petitioner

/os. 1 and $! therefore! conducted preli-inary in,uiry in the

38


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-atter and on findin that a prima facie case under the

Preention of %orruption "ct as -ade out! the -atter as

referred to the SP esta'lished under the proisions of the

M.P. Special Police sta'lish-ent "ct! 170? to 'e dealt ith

further! and thereafter! a case as reistered 'y the said

sta'lish-ent under the proisions of the Preention of

%orruption "ct! 1788.

##) "rticle 170(#) of the %onstitution proides for priilees

of the 2eislatie "sse-'ly and its -e-'ers hich reads as

underH

91


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#0) "rticle 170 is si-ilar to "rticle 1@< of the %onstitution!

hich proides for the priilees of Parlia-ent and its

Me-'ers. The said "rticles proide that the priilees

en4oyed 'y the leislature shall 'e such as -ay fro- ti-e to

ti-e 'e defined 'y the leislature 'y la. t is releant to

-ention that any la -ade 'y the Parlia-ent or the

leislature is su'4ect to the discipline contained in Part of

the %onstitution. The priilees hae not 'een defined 'ut

the a'oe "rticle proides that until the sa-e are so defined

(i.e. 'y the leislature 'y la)! they shall 'e those hich the

;ouse or its -e-'ers and co--ittees en4oyed i--ediately

'efore the co-in into force of Section $= of the %onstitution

Forty5fourth "-end-ent "ct! 17?8.

#


41/60Page 41

hich apply to hi- as -uch and perhaps -ore closely inthat capacity! as they apply to other su'4ects. Priilees ofParlia-ent do not place a Me-'er of parlia-ent on afootin different fro- that of an ordinary citi+en in the-atter of the application of las unless there are ood and

sufficient reasons in the interest of Parlia-ent itself to doso.

The funda-ental principle is that all citi+ens!includin -e-'ers of Parlia-ent! hae to 'e treatede,ually in the eye of the la. 6nless so specified in the%onstitution or in any la! a -e-'er of Parlia-ent cannotclai- any priilees hiher than those en4oyed 'y anyordinary citi+en in the -atter of the application of la.:

#=) t is clear that in the -atter of the application of las!

particularly! the proisions of the 2o3ayu3t "ct and the

Preention of %orruption "ct! 1788! insofar as the 4urisdiction

of the 2o3ayu3t or the Madhya Pradesh Special

sta'lish-ent is concerned! all pu'lic serants e>cept the

Spea3er and the Deputy Spea3er of the Madhya Pradesh

Vidhan Sa'ha for the purposes of the 2o3ayu3t "ct fall in the

sa-e cateory and cannot clai- any priilee -ore than an

ordinary citi+en to ho- the proisions of the said "cts

apply. n other ords! the priilees are aaila'le only

insofar as they are necessary in order that the ;ouse -ay

freely perfor- its functions 'ut do not e>tend to the

actiities underta3en outside the ;ouse on hich the

41


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leislatie proisions ould apply ithout any

differentiations. n ie of the a'oe! e re4ect the contra

aru-ent -ade 'y Mr. %.D. Sinh.

#?) "s rihtly su'-itted 'y Mr. G.G. Venuopal! in ndia!

there is rule of la and not of -en and! thus! there is

pri-acy of the las enacted 'y the leislature hich do not

discri-inate 'eteen persons to ho- such las ould

apply. The las ould apply to all such persons unless the

la itself -a3es an e>ception on a alid classification. /o

indiidual can clai- priilee aainst the application of las

and for lia'ilities fastened on co--ission of a prohi'ited "ct.

#8) n respect of the scope of the priilees en4oyed 'y the

Me-'ers! the then Spea3er Maalan3ar! hile addressin

the conference of the Presidin Officers at Ra43ot! on

@#[email protected] 'y lon ti-e custo-.:

42


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#7) The scope of the priilees en4oyed depends upon the

need for priilees! i.e.! hy they hae 'een proided for.

The 'asic pre-ise for the priilees en4oyed 'y the -e-'ers

is to allo the- to perfor- their functions as -e-'ers and

no hindrance is caused to the functionin of the ;ouse.

%o--ittee of Priilees of the Tenth 2o3 Sa'ha! noted the

-ain aru-ents that hae 'een adanced in faour of

codification! so-e of hich are as follosH

9(i) Parlia-entary priilees are intended to 'e en4oyedon 'ehalf of the people! in their interests and not aainstthe people opposed to their interestsL

(iii) the concept of priilees for any class of people isanarchronistic in a de-ocratic society and! therefore! if

any! these priilees should 'e the 'arest -ini-u- onlythose necessary for functional purposes and inaria'lydefined in clear and precise ter-sL

(i) soereinty of Parlia-ent has increasinly 'eco-e a-yth and a fallacy for! soereinty! if any! ests only in thepeople of ndia ho e>ercise it at the ti-e of eneralelections to the 2o3 Sa'ha and to the State "sse-'liesL

() in a syste- edded to freedo- and de-ocracy rule of la! rihts of the indiidual! independent 4udiciary

and constitutional oern-ent it is only fair that thefunda-ental rihts of the citi+ens enshrined in the%onstitution should hae pri-acy oer any priilees orspecial rihts of any class of people! includin the electedleislators! and that all such clai-s should 'e su'4ect to4udicial scrutiny! for situations -ay arise here the rihtsof the people -ay hae to 'e protected een aainst the

43


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Parlia-ent or aainst captie or capricious parlia-entary-a4orities of the -o-entL

(i) the %onstitution specifically enisaed priilees ofthe ;ouses of parlia-ent and State 2eislatures and their

-e-'ers and co--ittees 'ein defined 'y la 'y therespectie leislatures and as such the %onstitution5-a3ers definitely intended these priilees 'ein su'4ectto the funda-ental rihts! proisions of the %onstitutionand the 4urisdiction of the courtsL

(iii) in any case! there is no ,uestion of any freshpriilees 'ein added inas-uch as (a) under the%onstitution! een at present! parlia-entary priilees inndia continue in actual practice to 'e oerned 'y theprecedents of the ;ouse of %o--ons as they e>isted onthe day our %onstitution ca-e into forceL and (') in the;ouse of %o--ons itself! creation of ne priilees is notalloed.:

0@) The %o--ittee also noted the -ain aru-ents aainst

codification. "ru-ent no. (ii) is as underH

9(ii) The 'asic la that all citi+ens should 'e treatede,ually 'efore the la holds ood in the case of -e-'ersof Parlia-ent as ell. They hae the sa-e rihts andli'erties as ordinary citi+ens e>cept hen they perfor-their duties in the Parlia-ent. The priilees! therefore! donot! in any ay! e>e-pt -e-'ers fro- their nor-alo'liation to society hich apply to the- as -uch and!perhaps! -ore closely in that as they apply to others.:

01) t is clear that the 'asic concept is that the priilees

are those rihts ithout hich the ;ouse cannot perfor- its

leislatie functions. They do not e>e-pt the Me-'ers fro-

their o'liations under any statute hich continue to apply

to the- li3e any other la applica'le to ordinary citi+ens.

44


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Thus! en,uiry or inestiation into an alleation of corruption

aainst so-e officers of the 2eislatie "sse-'ly cannot 'e

said to interfere ith the leislatie functions of the

"sse-'ly. /o one en4oys any priilee aainst cri-inal

prosecution.

0$) "ccordin to rs3ine May! the priilee of freedo- fro-

arrest has neer 'een alloed to interfere ith the

ad-inistration of cri-inal 4ustice or e-erency leislation.

Thus! in any case! there cannot 'e any priilee aainst

conduct of inestiation for a cri-inal offence. There is a

proision that in case a -e-'er is arrested or detained! the

;ouse ouht to 'e infor-ed a'out the sa-e.

0#) Eith reard to 9Statutory detention:! it has 'een

stated! thusH

9The detention of a -e-'er under Reulation 18A of theDefence (Beneral)! Reulation 17#7! -ade under the-erency Poers (Defence) "cts 17#7 and 170@! led to

the co--ittee of priilees 'ein directed to considerhether such detention constituted a 'reach of Priilee ofthe ;ouseL the co--ittee reported that there as no'reach of priilee inoled. n the case of a -e-'erdeported fro- /orthern Rhodesia for non5co-pliance ithan order declarin hi- to 'e prohi'ited i--irant! thespea3er held that there as no pri-a5facie case of 'reachof priilee.

45


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The detention of -e-'ers in reland in 1718 and 17$$under the Defence of the Real- Reulations and the %iil"uthorities (Special Poers) "ct! the spea3er hain 'eeninfor-ed 'y respectiely the %hief Secretary of the 2ord2ieutenant and the secretary to the /orthern reland

%a'inet! as co--unicated 'y hi- to the ;ouse.:

00) The co--ittee for Priilees of the 2ords has

considered the effect of the poers of detention under the

Mental ;ealth "ct! 178# on the priilees of freedo- fro-

arrest referred to in Standin Order /o. ?7 that Kno 2ord of

Parlia-ent is to 'e i-prisoned or restrained ithout

sentence or order of the ;ouse unless upon a cri-inal

chare or refusin to ie security for the peace. The

%o--ittee accepted the adice of 2ord Diploc3 and other

2a 2ords that the proisions of the statute ould preail

aainst any e>istin priilee of Parlia-ent or of peerae.

0


47/60Page 47

and hich e>ceed those possessed 'y other 'odies orindiiduals. Thus! priilee! thouh part of the la of theland! is to a certain e>tent an e>e-ption fro- theordinary la. The particular priilees of the ;ouse of%o--ons hae 'een defined as

Kthe su- of the funda-ental rihts of the ;ouse andof its indiidual Me-'ers as aainst the preroatiesof the %ron! the authority of the ordinary courts ofla and the special rihts of the ;ouse of 2ords.

. The priilees of Parlia-ent are rihts hich areKa'solutely necessary for the due e>ecution of itspoers. They are en4oyed 'y indiidual Me-'ers!'ecause the ;ouse cannot perfor- its functions ithoutuni-peded use of the serices of its Me-'ersL and 'yeach ;ouse for the protection of its Me-'ers and the

indication of its on authority and dinity (MaysParliamentary Practice! pp. 0$50#).:

The priilee of freedo- fro- arrest has neer 'eenalloed to interfere ith the ad-inistration of cri-inal 4usticeor e-erency leislation.

>7. n U.P. Assembly case (Special Reference No. 1 of1964)it as settled 'y this %ourt that a 'road clai- thatall the poers en4oyed 'y the ;ouse of %o--ons at the

co--ence-ent of the %onstitution of ndia est in anndian 2eislature cannot 'e accepted in its entirety'ecause there are so-e poers hich cannot o'iously 'eso clai-ed. n this conte>t! the folloin o'serationsappearin at S%R p. 008 of the 4ud-ent should sufficeH("R p. ?=0! para 0ercised 'y the ;ouse of %o--ons as a 'ody andthrouh its Spea3er Kto hae at all ti-es the riht topetition! counsel! or re-onstrate ith their Soereinthrouh their chosen representatie and hae a

faoura'le construction placed on his ords as 4ustlyrearded 'y the %o--ons as funda-ental priileeSir rs3ine Mays Parliamentary Practice! (1=th dn.)! p.8=N. t is hardly necessary to point out that the ;ousecannot clai- this priilee. Si-ilarly! the priilee topass acts of attainder and i-peach-ents cannot 'eclai-ed 'y the ;ouse. The ;ouse of %o--ons alsoclai-s the priilee in reard to its on %onstitution.

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This priilee is e>pressed in three ays! first 'y theorder of ne rits to fill acancies that arise in the%o--ons in the course of a Parlia-entL secondly! 'ythe trial of controerted electionsL and thirdly! 'ydeter-inin the ,ualifications of its -e-'ers in cases

of dou't (Mays Parliamentary Practice! p. 1?


49/60


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character or conduct in his capacity as a -e-'er of the

;ouse and -ust 'e 9'ased on -atters arisin in the actual

transaction of the 'usiness of the ;ouse.: Reflections upon

-e-'ers otherise than in their capacity as -e-'ers do

not! therefore! inole any 'reach of priilee or conte-pt of

the ;ouse. Si-ilarly! speeches or ritins containin aue

chares aainst -e-'ers of critici+in their parlia-entary

conduct in a stron lanuae! particularly! in the heat of a

pu'lic controersy! ithout! hoeer! i-putin any mala

fi#esere not treated 'y the ;ouse as a conte-pt or 'reach

of priilee.


51/60Page 51


52/60Page 52

Me-'ers! in case of arrest of e-ployees of the 2eislature

Secretariat ithin the precincts of the ;ouse! the Spea3er of

the Gerala 2eislatie "sse-'ly! disalloin the ,uestion of

priilee! ruled that the prohi'ition aainst -a3in arrest!

ithout o'tainin the per-ission of the Spea3er! fro- the

precincts of the ;ouse is applica'le only to the -e-'ers of

the "sse-'ly. ;e o'sered that it is not possi'le! nor is it

desira'le to e>tend this priilee to persons other than the

-e-'ers! since it ould hae the effect of puttin

unnecessary restrictions and i-pedi-ents in the due

process of la.


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co-pletely uncalled for! illeal and unconstitutional. The

Spea3er has no 4urisdiction to entertain any such co-plaint!

hich is not een -aintaina'le.


55/60Page 55

Si-ply 'ecause the officers 'elon to the office of the

;on'le Spea3er of the 2eislatie "sse-'ly! the proisions

of the "ct do not cease to apply to the-. The la does not

-a3e any differentiation and applies to all ith e,ual iour.

"s such! the initiation of action does not and cannot a-ount

to a 'reach of priilee of the 2eislatie "sse-'ly! hich

has itself conferred poers in the for- of a Statute to

eradicate the -enace of corruption.


56/60Page 56

en4oyed 'y the "sse-'ly and its -e-'ers. The action of the

petitioners did not interfere in the or3in of the ;ouse and

as such there are no rounds for issuin a notice for the

'reach of Priilee of the 2eislatie "sse-'ly.

=1) "lso! in ter-s of the proisions of Section 11($) of the

2o3ayu3t "ct! any proceedin 'efore the 2o3ayu3t shall 'e

dee-ed to 'e a 4udicial proceedin ithin the -eanin of

Sections 17# and $$8 of the ndian Penal %ode and as per

Section 11(#)! the 2o3ayu3t is dee-ed to 'e a court ithin

the -eanin of %onte-pt of %ourts "ct! 17?1. The

petitioners hae -erely -ade in,uiry ithin the scope of the

proisions of the "ct and hae not done anythin aainst the

Spea3er personally. The officers or3in under the office of

the Spea3er are also pu'lic serants ithin the -eanin of

Section $() of the 2o3ayu3t "ct and! therefore! the 2o3ayu3t

and his officers ere entitled and duty 'ound to carry out

inestiation and in,uiry into the alleations -ade in the

co-plaint filed 'efore the- and -erely 'ecause the

petitioners! after scrutini+in the releant records! found the

alleations prima facie proed! 4ustifyin detailed

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inestiation 'y the Special Police sta'lish-ent under the

Preention of %orruption "ct! and the perfor-ance of duty

'y the petitioners in no ay affects any of the priilees

een re-otely en4oyed 'y the "sse-'ly or its Me-'ers.

=$) n the present -atter! the petitioners hae not -ade

any in,uiry aainst any -e-'er of the 2eislatie "sse-'ly

or the Spea3er or a'out their conduct and! therefore! the

co-plaints -ade aainst the petitioners 'y so-e of the

-e-'ers of 2eislatie "sse-'ly ere co-pletely uncalled

for! illeal and unconstitutional.

=#) Further! the alleations -ade in the co-plaint sho

that hile dealin ith the first co-plaint (.R. 1$?C@


58/60Page 58

=0) On 'ehalf of the petitioners! it is pointed out that the

facts and circu-stances in the present -atter sho that

co-plaints hae 'een filed 'y the Me-'ers not in their

interest 'ut for the 'enefit of the persons inoled ho all

are pu'lic serants. t is also pointed out that the action of

'reach of priilee has 'een instituted aainst the

petitioners since the officers! aainst ho- the inestiation

has 'een launched! 'elon to the Vidhan Sa'ha Secretariat.

=


59/60Page 59

and the Deputy Spea3er of the Madhya Pradesh Vidhan

Sa'ha for the purposes of the 2o3ayu3t "ct) and no priilee

is aaila'le to the officials and! in any case! they cannot

clai- any priilee -ore than an ordinary citi+en to ho-

the proisions of the said "cts apply. Priilees do not

e>tend to the actiities underta3en outside the ;ouse on

hich the leislatie proisions ould apply ithout any

differentiation.

=?) n the present case! the action ta3en 'y the petitioners

is ithin the poers conferred under the a'oe statutes and!

therefore! the action ta3en 'y the petitioners is leal.

Further! initiation of action for hich the petitioners are

leally e-poered! cannot constitute 'reach of any

priilee.

=8) 6nder the proisions of Section #7(1)(iii) of the %ode of

%ri-inal Procedure! 17?#! eery person ho is aare of the

co--ission of an offence under the Preention of

%orruption "ct is duty 'ound to ie an infor-ation aaila'le

ith hi- to the police. n other ords! eery citi+en ho has

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3nolede of the co--ission of a coni+a'le offence has a

duty to lay infor-ation 'efore the police and to cooperate

ith the inestiatin officer ho is en4oined to collect the

eidence.

=7) n the liht of the a'oe discussion and conclusion! the

i-puned lettersCnotices are ,uashed and the rit petition is

alloed as prayed for. /o order as to costs.

.%J.(P. SATHASIVAM)

.J.(RANJAN GOGOI)

.J.(SHIVA @IRTI SINGH)

/E D2;LFAR6"RQ $

Documents

Law Confers Immunity, Not Men; Apex Court Provides That Officers Enjoy Immunity Only to the Extent Expressly Provided by the Act