JATISH CHANDRA GHOSH Vs. HARI SADHAN MUKHERJEE

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the High Court of Judicature at Calcutta, dated April 11, 1956, whereby the appellant's claim of absolute privilege as a member of the Bengal Legislative Assembly was rejected and the prosecution launched against him under S. 500, Indian Penal Code, was allowed to proceed.

(2.) The facts of this case are not in doubt or dispute and may shortly be stated as follows. The appellant is a citizen of India and an elected member of the West Bengal Legislative Assembly. He is also a medical practitioner at Chetal in the Midnapore District of West Bengal. In January 1954, the appellant gave notice of his intention to ask certain questions in the Assembly. Those questions were disallowed in accordance with the rules of procedure for the conduct of business of the Assembly. In February 1954, the appellant was informed that the questions proposed by him had been disallowed. The appellant published the questions that had been disallowed in a local journal called "Janamat", in its issue of February 28, 1955. In July 1955, the first respondent whose conduct formed the subject-matter of the question and who was then functioning as a Sub-divisional Magistrate, filed a complaint against the appellant and two others, the editor, and the printer and publisher respectively of the journal aforesaid. The petition of complaint alleged that the appellant had made and published scandalous imputations against him intending them to be read by members of the public, that those imputations were false and unfounded and had been made with the definite intention of harming or with the knowledge of having reason to believe that they would harm the reputation of the complainant and that the complainant felt greatly aggrieved and harmed in mind and reputation. He also alleged that being Government servant, the complainant had to obtain the necessary permission from the Government for instituting legal proceedings for the vindication of his character as a public servant and that accounted for the delay in filing the petition of compliant. The petition of complaint charged the appellant with an offence under S. 500 of the Indian Penal Code and the second and third accused, who have been cited as respondents 2 and 3 in this Court, under S. 501 of the Indian Penal Code. After several adjournments the petitioner raised, by way of preliminary objection to the criminal prosecution, the question of his absolute privilege and immunity from prosecution under the provision of the Constitution. The learned Magistrate by his order dated October 11, 1955, overruled the objection and held that the privilege claimed by the accused was not an unqualified one. He relied on a judgment of the Calcutta High Court in the case of Dr. Suresh Chandra Banerjee vs. Punit Goala, 55 Cal WN 745 in support of his conclusion that the first accused before him, now appellant was not entitled to the privilege and immunity claimed by him. Thereafter, the appellant moved the High Court under Art. 228 of the Constitution for having the case withdrawn to the High Court for determination of the constitutional question raised by him by way of defence, but that application was dismissed by a Bench of the High Court on November 9, 1955, presumably on the ground that the case did not involve any substantial question of law as to the interpretation of the Constitution. Not daunted by the adverse order aforesaid of the Bench of the High Court, the petitioner again moved the High Court and obtained a rule on several grounds including the question of the proceedings being barred by the provisions of Art. 194 of the Constitution. The learned Single Judge, who dealt with the case on this occasion, noticed the position that strictly speaking the constitutional question could not be allowed to be reagitated in view of the Bench decision aforesaid. But the learned Judge all the same dealt with the points raised by the appellant including the question arising under Art. 194 of the Constitution. The learned Judge dismissed the application holding that a member of the Legislative Assembly had no absolute privilege in respect of the questions sought to be asked by him, which had been disallowed but he had published them all the same. It was also pointed out that the questions had never been asked in the House and that, therefore, could not be said to form part of the proceedings of the House. He further held that the publication in the journal at the instance of the appellant could by no means be said to have been under the authority of the house. The appellant moved the learned Judge for a certificate under Art. 132(1) of the Constitution, but that application was also refused on the ground that the case did not involve any substantial question of law as respects the interpretation of the Constitution. The appellant then moved this Court and obtained special leave to appeal from the judgment of the High Court refusing the claim of privilege. He also obtained stay of further proceedings in the Court of the Magistrate. The hearing of the appeal was ordered to be expedited. That order was passed on October 1, 1956, but notwithstanding the order of expedition, the case came to be heard only four years later.

(3.) In this Court, it has been contended on behalf of the appellant that the learned Judge below had erred in his interpretation of the provisions of Art. 194 of the Constitution and that on a proper construction of those provisions it should have been held (1) that questions sought to be asked by a member of a Legislative Assembly, even though disallowed by the Speaker, formed part of the proceedings of the House, and, as such, their publication would not attract the provisions of the Indian Penal Code; (2) the provisions of Art. 194 should be liberally construed in favour of persons like elected members of the Assembly who are rendering public service not only by making speeches and asking questions in the Assembly, but also by publishing them in the public press with a view to apprising the country and particularly the constituency of what had been happening in the House. In other words, it was claimed that there was an absolute privilege in favour of a member and that, therefore, he could not be prosecuted for having published the questions he sought to put, but had been disallowed by the Speaker.