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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 $1
of the %onstitution of ndia and are contrary to "rticle 170(#)
and prayed for the issuance of a rit! order or direction(s)
,uashin the said letters as ell as the co-plaints filed 'y
Respondent /os. pired)! ?! 8 and 7 herein.
0) B$* *+!#
2
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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!
4
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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
5
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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
9
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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.:
11
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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
12
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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 $@@=. n the said
co-plaint! it as -entioned thatH
(a) "n order had 'een issued to the "d-inistrator! %apital
Pro4ect "d-inistration 'y Shri ".P. Sinh! Deputy
15
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Secretary! Vidhan Sa'ha iin ad-inistratie approal
for the esti-ate of the cost of construction aainst
rules and ithout -a3in 'udetary proision ide
order dated 17.1@.$@@< 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.
18
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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
24
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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.
25
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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
26
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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
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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
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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
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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. .:
$8) n &ast India Commercial Co%, Ltd%, Calcutta and
'nothers. The Collector of Customs, Calcutta,17=#N
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9..The respondent proposed to ta3e action under Section1=?(8) of the Sea %usto-s "ct! read ith Section #($) 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 $@! hich is also a three Jude Aench
decision! the folloin conclusion in the penulti-ate
pararaph is releantH
90? "s reards points ()! (i) and (ii) suffice it to pointout that the petitioners hae apart fro- filin special leaepetitions also filed rit petitions challenin the ery sa-eorders and since e hae held that the action of the%o--ittee in holdin that the petitioners ere not coered
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that no proceedin as initiated aainst ;on'le Spea3er or
Me-'ers of the ;ouse 'ut only relatin to the officers in
respect of contractual -atters! if urent interention is not
souht for 'y e>ercisin e>traordinary 4urisdiction!
undou'tedly! it ould cause pre4udice to the petitioners.
#@) "ccordinly! e re4ect the preli-inary o'4ection raised
'y the counsel for Respondent /o.0 and hold that rit
petition under "rticle #$ 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
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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
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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.
#
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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
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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-.:
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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
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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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@
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=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.
=
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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)
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