ARTICLE ON – SANCTIONS TO PROSECUTE MP’s & MLA’s

BY- SHIBA PRASADA SARANGI

Word Count - 9094

 INDEX PAGE

Index page.......................................................................................................................................2
Table of cases..................................................................................................................................3
Introduction: Sanction for prosecution..........................................................................................4
SANCTION TO PROSECUTE [s.132]..............................................................................................4
SANCTION TO TAKE COGNIZANCE [s.196 and s.197]..................................................................4
DIFFERNECE BETWEEN SANCTION TO PROSECUTE AND SANCTION TO TAKE COGNIZANCE.....5
Need for Sanctions in Criminal Matters..........................................................................................7
Sanctions to Prosecute Public Servants vis-a-vis Immunity to MP’s and MLA’s............................9
The Prevention of Corruption Act 1988....................................................................................10
The Criminal Procedure Code of 1973......................................................................................10
MP’s and MLA’s are Public Servants or not..............................................................................11
Reference to Law Commission report on Expeditious Investigation and Trial of Criminal Cases
against ...............................................................................................................................................
Influential Public Personalities......................................................................................................12
Causes for Delays......................................................................................................................12
List of Influential People and the Cases Against them..............................................................13
Approach to be Adopted...........................................................................................................14
Constitutional Privileges: Analytical approach to article 105 and article 194 and Other Laws. . .16
Freedom of Speech...................................................................................................................17
Freedom of Arrest.....................................................................................................................18
Breach of Privileges and Contempt of House...........................................................................18
Irregularity in granting of Sanctions.............................................................................................19
Judicial Trends in India regarding prosecution of MP’s and MLA’s..............................................21
Conclusion.....................................................................................................................................23
Annotated Bibliography................................................................................................................24

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 TABLE OF CASES

Ganesh Narayan Vs. S.Bangarappa, (1995) 4 SCC 41 .............................................................. 17

M.Karunanidhi Vs. Union of India, 1979 AIR 898, 1979 SCR (3) 254 ...................................... 14
A.D. Parthasarthy Vs. J.S. Khurdukar, 1975 Cri LJ 1290 .......................................................... 25
Afzalur Rehman Vs. King Emperor, (1948) 44 Cri LJ 466: AIR 1943 FC 18.............................. 25
Surinderjit Singh Mand & Anr Vs. State Of Punjab & Anr, Criminal Appeal No.565 OF 2016 ..
22
Dr. Subramanian Swamy Vs. Dr. ManmohanSingh, 2012 (2) SCALE 12 .................................. 18
Harihar Prasad Vs. State of Bihar, (1972) 3 SCC 89 ................................................................. 23
Jaswant Singh Vs. State of Punjab, AIR 1958 SC 124 ............................................................... 23
L.K.Advani Vs.State (CBI/SPE) ................................................................................................. 14
M.S.M Sharma Vs. Srikrishna Sinha, AIR 1959 SC 395 ............................................................ 20
Matajog Dobey Vs. H.C.Bihar, AIR 1956 SC 44 ....................................................................... 11
Mohd.Iqbal Ahmed Vs. State of Andhra Pradesh, AIR 1979 SC 677.......................................... 11
P.V. Narishma Rao Vs. CBI, [1998 SC] ..................................................................................... 24
Pawan Kumar Vs. Ruldu Ram, 1982 Law Suit (P&H) 143 ........................................................ 22
Prakash Singh Badal Vs. State of Punjab, AIR 2007 SC 1274 ................................................... 24
R. Balakrishna Pillai Vs. State of Kerala, (1996) 1 SCC 478 ..................................................... 23
R. S. Nayak Vs. A. R. Antulay, AIR 1986 SC 2045 : (1986) Cr LJ 922 (SC) .............................. 24
Rakesh Kumar Mishra Vs. State of Bihar, (2006) 1 SCC 557..................................................... 24
Ram kumar Vs. State of Haryana, (1987) I SCC 476 ...................................................................8
Romesh Lal Jain Vs. Nagendar Singh Rana, (2006) 1 SCC 294 ........................................... 22, 23
S.N. Bhowmik Vs. State, (1988) 2 CHN 455 ................................................................................8
State of Goa Vs. Babu Thomas, (2005) 8 SCC 130 .................................................................... 23
State of Madhya Pradesh Vs. Sheetla Sahai, (2009) 8 SCC 202 ................................................. 10
Virendeer Kumar Ohri Case...................................................................................................... 15

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Rajaram Pal & Ors. Vs. Union of India & Ors, Writ Petition (Civil) 1 of 2006 ......................... 21

INTRODUCTION: SANCTION FOR PROSECUTION

Sanctions in India have been discussed under various laws such as Prevention of Corruption Act,
Criminal Procedure Code, 1973 etc. Under the Criminal Procedure Code 1973, sanction is
required for prosecution of persons associated with military or the forces associated with the
1
work of maintenance of public order , prosecution of offences against the state and for
prosecution of judges and public servant2. There are two types of sanctions that is sanction to
prosecute which is covered under section 132 of Cr.P.C and sanction to take cognizance which is
covered under section 196 and section 197 of Cr.P.C. Sanction to prosecute doesn’t allow filling
of FIR or complaint whereas sanction to cognizance permits filing of FIR or complaint.

SANCTION TO PROSECUTE [s.132]

Section 132 of Cr.P.C, that is protection against prosecution for acts done under preceding
sections provides that nobody shall be prosecuted without obtaining sanction from the
Government which is at the centre when a person associated with armed forces and in any other
case from the State Government if the person commits an offence under section 129, 130 and
131 of the Crpc.

SANCTION TO TAKE COGNIZANCE [s.196 and s.197]

Section 196 of Cr.P.C, that is prosecution for offences against the state provides that in case of
offences under Chapter VI of IPC such as s.121, s.124, s.153, s. 295, criminal conspiracy,
abetment the cognizance of the case must be taken by the court after obtaining sanction from any

1 Criminal Procedure Code 1973, s 132.

2 Criminal Procedure Code 1973, s 197.

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of the government which is at the centre or the state. Under this section the order of conducting
preliminary investigation by the police officer can be given by any of the government which is at
the centre or the state or the District Magistrate before granting the sanction and the police
officer will have the same power as mentioned in section 155 (3) of Cr.P.C 3. While granting the
sanction the government shall act fairly and it can be challenged in the court if the government
acts arbitrarily.

Section 197 of Cr.P.C that is prosecution of judges and public servants provides that the court
shall obtain sanction of appropriate government before taking cognizance of a case if an offence
committed by a judge or a public servant.

Essentials of section 197 are that the person must be a public servant, power of his/her removal
by some government authority and the act must be in the discharge of his/her official duty. Under
this section sanction is required even when the public servant is not in service during the time of
taking of cognizance whereas under prevention of the corruption act, sanction is not required
when the cognizance of an offence has to be taken and public servant is not in service. Also, the
government shall decide the manner and the court where the trial is to be held.
Meaning of public servant is not provided in the criminal procedure code hence section 21 of the
Indian Penal Code4 needs to be referred for the meaning of public servant provided in section 197
of the Criminal Procedure Court.

In a case, it is held by the Court that there are two prerequisites before prosecuting public
servants which are sanction to prosecute provided in section 132 of Cr.P.C has to be taken before
prosecuting a public servant and sanction to cognizance of the offence provided in section 197 of
Cr.P.C has to be obtained before taking cognizance of an offence by the court.

DIFFERNECE BETWEEN SANCTION TO PROSECUTE AND SANCTION TO TAKE

COGNIZANCE

3 R.V. Kelkar, ‘Criminal Procedure’, ( 6thedn, EBC 2018 ).

4 Indian Penal Code 1860, s 21.

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In many cases such as S.N. Bhowmik Vs. State5, Ram Kumar Vs. State of Haryana 6etc. court
held that “sanction for prosecution is not sanction to take cognizance”The sanction provided to
prosecute doesn’t mean that the sanction is also provided for taking cognizance of the case.
Sanction to cognizance is different from sanction to prosecute in the following ways:-
 Both the sanctions are addressed to different persons. Sanction to prosecute is addressed
to the complainant whereas sanction to take cognizance is addressed to the Magistrate.

 Different purpose is served by both the sanctions that are sanction to prosecute allows the
complainant to institute the complaint and start the judicial proceedings whereas under
section 197 the court is given jurisdiction to take the cognizance of the offence. Without
sanction to prosecute the proceedings cannot begin while without sanction to cognizance
the magistrate won’t have the power to hear the case.
 Sanction to prosecute disables the complainant while sanction to cognizance disables the
court if the sanctions are not provided.
 Disability works in two different ways that is under section 132 of Cr.P.C the complaint
becomes invalid and under section 197 of Cr.P.C all the proceedings in the court are
vitiated.
 Sanction to prosecute doesn’t allow filling of FIR or complaint whereas sanction to
cognizance permits filing of FIR or complaint.
 While granting sanction to prosecute the sanctioning authority has to think that whether
the complainant is filing the complaint in good faith or not whereas in case of sanction to
cognizance the court has to think that which court is suitable or empowered to hear the
case. Under section 197, the sanctioning authority shall also decide the manner in which
the case should be tried.
 Sanction to prosecute gives a power to a person to prosecute the offender whereas
sanction to cognizance gives the power to try the offender.

Therefore, from the above mentioned points we can clearly state that sanction to prosecute is not
a substitute of sanction to take cognizance.

5 S.N. Bhowmik Vs. State, (1988) 2 CHN 455.

6 Ram kumar Vs. State of Haryana, (1987) I SCC 476.

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 NEED FOR SANCTIONS IN CRIMINAL MATTERS

Under the Criminal Procedure Code 1973, sanction is required for prosecution of persons
associated with military and the forces that have the work of maintenance of public order,
prosecution of offences against the state and for prosecution of judges and public servant.

For granting of sanctions, the act must be committed in discharge of official duty 7. For instance,
sanction is not necessary when a person commits an offence of bribery because it is not the duty
of public servant to accept bribe while discharging official duty. The sanction shall be obtained
from the government which is at the centre if the public servant is working under union and in
case a public servant is working under the state then the sanction has to be obtained from
government which is working at the state level.

The need of sanction provided section 196 of Criminal Procedure Code is to prevent persons who
don’t have any authority from intervening in affairs of the state by initiating prosecution and the
prosecution must only be done under the authority of government for reasons of policy. Also, the
offences mentioned under this provision deal with matters of serious natures that affects the
public peace with which the state government is concerned. Hence, before taking cognizance of
any such offences sanction of the government is required.

The idea of having Sanctions under Section 197 is to protect the public servants falling under the
important categories or those who are involved in important functions to be safeguarded from
malicious, mala fide and false prosecutions8. The reasoning advanced for such sanctions is; (i) to
discourage false cases being filed (ii) to protect the public officials from being harassed (iii)
smooth and efficient functioning of the administrative system is not disrupted. Another idea of
having such sanctions is to take into account the opinion of authorities’ superior in position and
power prior to the prosecution of a public servant before a court of law.

7 Prakash Singh Badal Vs. State of Punjab, AIR 2007 SC 1274.

8 State of Madhya Pradesh Vs. Sheetla Sahai, (2009) 8 SCC 202.

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In a case9 , it was held by the Court it is not essential that the requirement of sanction to be
considered as soon as complaint is filed. The need of sanction can be taken at any stage or time
of the proceeding since at some times the complaint may not reveal that the said act was done
during discharging the official duty but in the course of prosecution evidence it may establish the
necessity of sanction. In the course of the progress of case the necessity for sanction might be
established.

In a case, if sanction was necessary and did not obtain the sanction then the trial without sanction
is void ab initio and invokes section 465 of the Criminal Procedure Code hence it shall be proved
by the prosecution that a right sanction has been obtained from the sanctioning authority 10. The
authority while giving the sanction shall apply its mind and must be aware of the facts of the case
and the sanction should not be arbitrary.

9 Matajog Dobey Vs. H.C.Bihar, AIR 1956 SC 44.

10 Mohd.Iqbal Ahmed Vs. State of Andhra Pradesh, AIR 1979 SC 677.

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 SANCTIONS TO PROSECUTE PUBLIC SERVANTS VIS-A-VIS
IMMUNITY TO MP’S AND MLA’S

Protective discrimination for public officials is allowed by way of sanctions in criminal law in
India. Various laws provide for requirement of sanctions to investigate and prosecute public
officials. These provisions of sanctions under different laws were revisited from time again and
again by legislature and judiciary as well. Under criminal law, there is a requirement of sanction
to investigate certain public servants. The Prevention of Corruption Act 1988 and the Criminal
Procedure Code of 1973 provides that a prior sanction or permission is required, to prosecute the
public servants, from central or state governments, for which such official works.

But the question arises as to who all constitutes public servants. The word “Public Servants” is
defined under two laws mainly – The Indian Penal Code 1860 and the Prevention of Corruption
Act 1988. IPC defines public servants under section 21 as –

1. “Every commissioned officer of Army, Naval or Air force of India.

2. Judge or any other person empowered by law to discharge any adjudicatory functions.
3. Every officer of Court of Justice.
4. Juryman, member of Panchayat helping the Court of Justice or a public servant.
5. Arbitrator on whom matter has been referred for decision or any other competent public
authority.
6. Person having power to keep any person in confinement by virtue of its position.
7. Every government officer whose duty is to prevent offences, protect public safety, bring
offenders to justice etc.
8. Person under government having duty to make contracts, deals in property related
matters, help in execution of revenue process and prevent infraction of law for interest of
the government.
9. Officer whose duty is with regards to levitation of taxes and related purpose.
10. Person who participates in any manner as to electoral process by virtue of its position.
11. Person remunerated, by the government, local authority or corporation established under
government act, for any public duty.

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12. The Prevention of Corruption Act 1988.”

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 The Prevention of Corruption Act 1988

The Prevention of Corruption Act, 1947 provided that public servant would mean same as
defined under section 21 of IPC. But this act was repealed in 1988 11 and provides twelve
categories for the purpose of public servant. These categories are somewhat similar to those
given under IPC. Section 2(c)(vii) states that public servant include those persons who by virtue
of their position required to perform a public duty. Section 13(1)(d)(iii) of the Act talks about
criminal misconduct by public servant which includes any type of pecuniary advantage received
without any public interest in it.

Section 19 of Prevention of Corruption Act provides for prior sanction, to prosecute public
servants for commission of said offences under this act, from the competent authority. This
requirement of prior sanction is necessary only at prosecuting stage and not at stage of inquiry or
investigation. Also, the section restricts itself to the present public servants serving at their
positions and not to retired servants.12 They lacked this protection under the law. Still there are
cases where false complaints against public servants lead to unsustainable inquiry or
investigation and harm has been caused to the reputation of such post holders before this stage of
prior sanction for prosecution arrives. This process also went to unordinary arrests of public
servants.13

The Criminal Procedure Code of 1973

Section 197 provides for need of previous sanctions to prosecute the public servants. Such
sanction has to be given by the competent authority, herein is the central government or the state
government, for which such servant works for. The main object behind this section is to
scrutinise whether the said allegations against the public servant are false and vexatious as to

11 The Prevention of Corruption Act 1988, sec 2(c).

12 “Prevention of Corruption Act:no reason for not taking bold decisions now”, <
https://economictimes/preventionof-corruption-act-no-reason-for-not-taking-bold-decisions-now/>, dated 27th July
2018, as accessed on 04th April 2020.
13 Simran, “Requirement of Sanction”, < https://www.prsindia.org/theprsblog/>, as accessed on 07th April 2020. 14
Sanjay K Singh, “Public Servants can be Prosecuted without Prior Sanctions”, <
https://economictimes./publicservants-can-be-prosecuted-without-prior-sanction-sc/>, as accessed on 10th April
2020.

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harm their reputation and position. But this protection cannot be given in cases where acts done
by public servants are not in discharge of their official duty but in personal capacity.14
MP’s and MLA’s are Public Servants or not

In case of R.S. Nayak Vs. A.R. Antuly 15, chief minister was alleged to have committed offence
under sec 161 and 165 of IPC and sec 5 of Prevention of Corruption Act. The question that needs
to be answered was to whether there is requirement of sanction to prosecute as the person alleged
has ceased to be the chief minister but still a sitting MLA. The court opined that there is no such
need for the sanction as he is no more in the capacity of public servant in which he had
committed the said offence. The accused in such case must continue to be a public servant till the
date cognizance is taken by the court. The court continued and held that MLA’s are excluded as
public servant under IPC as they are not paid by the executive government for his duty. Also,
legislature is not considered to be within the ambit of government as per sec 21(12) of IPC.

Rather ministers are considered to be public servants as they discharge their official duties as per
the norms of state government. In case of M.Karunanidhi Vs. Union of India16, it was again
questioned regarding MLA’s as public servants. The court conceded that MLA is not in the
service of State government, thus not a public servant. The sanctioning authorities in such cases
would be the central or state governments under which that servant works.

The Prevention of Corruption Act 1988 repealed the definitions of public servants under IPC.
This distinction was much focused in case of L.K.Advani Vs. CBI17 where court refused to take
the definition of IPC into consideration. It leads to the another case of P.V.Narsinha Rao Vs.
State18. Here the court decided that the extended definition of public servant under sec 2(c)(viii)
of the repealed act includes MP’s and hence they are considered to be public servant for the
purpose of this act.19 The court further adds on to conclude that the definition given under
Prevention of Corruption Act is much wider and more people can be covered under list of public
servants. Sanctions are favoured on three grounds- (a) Frivolous cases are not filed, (b) Public
Servants are not harassed and (c) Efficacy of administrative machinery is not tampered.20

15
1984 AIR 684, 1984 SCR (2) 495.
16
1979 AIR 898, 1979 SCR (3) 254.
17
L.K.Advani Vs.State (CBI/SPE).

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18
1997 IIIAD Delhi 53, 1997 CriLJ 2559, 1997 (4) Crimes 1, 66 (1997) DLT 618, 1997 (41) DRJ 274, (1997) 116
PLR 1, 1997 RLR 292.
19
“Whether MLA’s are Public Servants?”, < https://advocatetanmoy.com/2018/12/23/whether-mlas-are-
publicservants/>, dated 23rd December 2018, as accessed on 14th April 2020.
20
Subramanian Swamy Vs. Dr. Manmohan Singh & Anr. Civil Appeal No. 1193 of 2012 dated January 31, 2012.

REFERENCE TO LAW COMMISSION REPORT ON EXPEDITIOUS

INVESTIGATION AND TRIAL OF CRIMINAL CASES AGAINST
INFLUENTIAL PUBLIC PERSONALITIES

The Law Commission of India has in its 239th report titled “Expeditious Investigation and Trial
of criminal cases against Influential public personalities” made several useful recommendations
relating to reducing arrears in the investigation and prosecution of criminal cases which involve
serious offences and their trials. This report was prepared pursuant to the directions of the
Supreme Court in the case of Virender Kumar Ohri Vs. Union of India & Others.14 The way
that influential political characters i.e. MP’s and MLA’s and their partners in crime are
associated with this case, it presents an additional elevation to the problem and attracts questions
on the adequacy of the current frameworks and practices.

This report by the law commission gives various causes for the delay in investigation and trials in
the cases involving high public officials and influential public personalities. It also provides the
measures that need to be taken during the investigation by the police and during the trial in
criminal courts, to avoid the delay. It also suggests various methods to strengthen the current
prosecution machinery.15

Causes for Delays

Sanctions for the accused MP’s and MLA’s are postponed by the Governments. This is not
unconventional to instances of public men; they are all issues circling the criminal justice
framework in general. The reason for the delay is that the police are either reluctant to continue
with the investigation against influential person or they are under pressure not to act quickly
particularly if the individual denounced is in power or a functioning part of the ruling party (an
MP or an MLA). They adopt a very lethargic attitude when the accused are such people.
14 Virendeer Kumar Ohri Case.
15 Expeditious Investigation and Trial of Criminal Cases Against Influential Public Personalities Report No.239.

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Moreover, police officers at often are found corrupted which affects the timely and qualitative
investigation. When FIR isn't enrolled in an adequate time or the speed of the investigation is
late, there is no inside system to check this effectively. Furthermore, priority to such
investigations is kept at a very low level. Police personnel are diverted from the stations for less
important works and sometimes the existing police force is also at deficit. Delays are also caused
due to the influence these people can use with the police and witnesses. It is also sometimes
caused by their long absence from the proceedings of the court and the police lacking behind in
producing them in Court.

List of Influential People and the Cases Against them

This report also provides an illustrative list as to who should be consider as influential
personalities. Therefore, “MPs, MLAs/MLCs including Ministers (former or present), Mayors,
Chairpersons of Municipalities/Zila Parishads, elected or nominated Chairpersons (non-officials)
of other State-level Public bodies and important office bearers of political parties at State level”
should be regarded as influential people. The entire object of specifying people of influence is to
empower the Police Officers and judges concerned to monitor cases including such people and to
attempt evasion of delays in the manner of expedient investigation and trial. It should be left with
the police officers and judges of the court to distinguish such people making delays and
impediments. Rather than sketching up a thorough list of the alleged influential people, a wide
indication with regards to which cases require special consideration is adequate.16

The cases against senior Government officials and MP’s/MLA’s, come in the ambit of the
“Prevention of Corruption Act” and are given to Special Courts. . These Courts are not burdened
heavily with the work delegated to them and thus they are able to take adequate steps needed to
counter the measures taken to delay or create hurdles in the trials. But the major problem that
arises is that the machinery cannot create a class differently for such accused people. Any such
treatment will totally go against the ambit of article 14 of the Indian constitution.

16 Supra n 22.

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If there is a fact which suggests that the investigation is not being done expeditiously because of
such influential person or they are resorting in influencing the trials, that may be a valid ground
to put in place but not to accommodate all the cases involving influential people on fast track
courts without determining the age of the case.17 The Supreme Court in the case of Ganesh
Narayan Vs. S.Bangarappa18, observed: “the slow motion becomes much slower motion when
politically powerful or high and influential persons figure as accused”.

Approach to be Adopted

This report formulates the directions that should be given to the existing legal framework to see
that there are no impediments created in the investigation or trial of influential people. The
measures adopted should apply to all the “serious crimes”. Moreover, there should be a high
emphasis on old cases and all the hurdles coming in its ways should be removed.

Measures to be adopted by the Police

The Report says that the investigation should be completed by the police under 3 months or
earlier at any cost. The charge sheet should be filed within 1 month and all the requisite and
important documents along with it should be attached. A copy of the charge sheet should also be
send to the SP or the SSP. If there’s any non-compliance of the procedures or the investigation is
not completed within the requisite time then the SP/SSp will be held personally responsible and
disciplinary proceedings shall be taken against them. In cases involving influential personalities,
section 164 of the C.R.P.C should be resorted to more frequently.

The I.O. should bring to the notice of DM, the hindrances which arise within the way of
expeditious investigation which include the attempts that are made by the suspect to create
hurdles in the investigation. The Magistrate shall, in such a case may also issue summons to the
assembly of documents within the control of accused or a 3rd party, may additionally send up a
report back to the District Judge for necessary steps on the executive side to terminate those
delays. Furthermore, the SP should prepare an FIR record with respect to influential people. This
would allow him to keep a track of instances and cases like these and for future references.
17 (1979) 1 SCC 3.
18 (1995) 4 SCC 41.

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Where the police receive a valid data that a cognizable wrongdoing is committed by a an MP or
MLA, it is his obligation to register that crime. For example, the corruption might be uncovered
by sting operations which are broadcast in TV or distributed in media. They should follow up on
them, subject to confirmation of the credibility of report. “Anirudha Bahal's” case 19 decided by
Delhi HC exposes the Police’s lapse in the same regard.

Whenever sanctions are required for the prosecution MPs/MLAs, the Government should act
hastily and in an expeditious manner. At normal, it should be done within three months.20

Measures to be adopted by the Courts

The cognizable cases, in which hindrances are occurring because of influential public persons by
reason of their conduct or lapse on police’s part, must be brought before eyes of Dist. Judge who
should act upon the problem with the SP.

In cases where there is an apprehension of inordinate delays with regard to the suspect or police,
and the Add. District Judges who are trying the case, feel that there is a delay or hindrance, the
District Judge should be intimated of such delay who should notify the SP of the persisting
difficulty as soon as possible and tell them to take a suitable step by way of arresting the suspect
or producing the witnesses on time. Despite of that, if they are unable to act, a special report to
the HC shall be sent by the Dist. Judge especially if, the matter is related to an influential person.

In statements which are released quarterly, the Dist. Judges shall record short reasons and
conclusions for the cause of hindrance or delay in cases of sessions court which exceed three
years of time starting on the day of framing of charges, and they must clearly explain that if the
case is related to an influential person or not. Moreover, “high priority” should be given to the
cases related to the public person that are pending in the session court for more than 5 years.

19 172 (2010) Delhi Law Times 268.

20 Dr. Subramanian Swamy Vs. Dr. ManmohanSingh, 2012 (2) SCALE 12.

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 CONSTITUTIONAL PRIVILEGES: ANALYTICAL APPROACH TO
ARTICLE 105 AND ARTICLE 194 AND OTHER LAWS

India is world’s largest Democracy. Parliament of India is called the legislative wing that makes
the law of the land. The members of both the lower house and the upper house, commonly
known as Lok Sabha and Rajya Sabha, are called the Members of Parliament (MP’s) and
members of state legislative assembly or legislative council are called Members of Legislative
Assembly (MLA’s). These MP’s and MLA’s, under constitutional power, provided with certain
immunities and privileges. This concept of privileges and immunities is taken from British
constitution. In the ambit of Constitutional Law and Indian Parliament, privileges and immunities
signify certain rights which are special to both the houses and to the individual members of the
house.21 The purpose of these privileges is to let these members, both MP’s and
MLA’s, exercise their constitutional functions independently without any fear or restrictions.
These immunities given to the members are to regulate the working of the houses in a disciplined
and efficient manner and not due to any higher position of its members. These privileges and
immunities do not place these members on a different footing, unless there are reasonable and
sufficient grounds in the interest of the parliament, from ordinary citizen of India.22

Powers, privileges and immunities to MP’s and MLA’s are given under article 105 and 194 of
23
the Constitution respectively. These Privileges are divided mainly in two categories- (a)
Privileges enjoyed by the members individually and (b) Privileges belong to the house
collectively. Some of these privileges are –

1. Freedom of speech is enjoyed by the members under clause (1) of article 105 and 194.
2. Immunity to members from proceedings in any court with regards to anything said in the
parliament.24
21 “Parliamentary Privileges and Immunities in Indian Constitution”,
<https://www.mitrasias.com/parliamentaryprivileges-and-immunities-in-indian-constitution/>, dated 04th November
2018, as accessed on 22nd March 2020.
22 “Indian Constitution and Parliamentary Privileges – a Background Note”,
<http://sri.nic.in/sites/default/files/Indian%20Constitution%20and%20Parliamentary%20Privileges%20%E2%80%9
3%20A%20Background%20Note_0.pdf>, as accessed on 28th March 2020.
23 The Constitution of India 1950.
24 The Constitution of India 1950, art 105(2),.

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 3. Article 122 – Courts are prohibited to inquire into the Parliament proceedings.
4. Immunity from any proceedings, civil or criminal court, with respect to any publication
of true reports of parliament, unless done with malice.25
5. Immediate information of arrests, convictions, imprisonment and detention of the
members has to be given to the house immediately.26
6. Arrest of members of the House and the legal services is prohibited within the boundaries
of Parliament, unless permission of speaker was given for the same. 27
7. Members are prohibited to produce any documents or give evidence in court of law
regarding the proceedings of the Parliament.28

8. The Mp’s can’t be arrested when the parliament is in session and before and after 40 days
of beginning or ending sessions of parliament. But this privilege is only for matters of
civil cases. No such immunity is given to members in case of criminal matters.29

We will discuss two main privileges with respect to MP’s and MLA’s. They are –

Freedom of Speech

Members of Parliament exercise their power of freedom of speech under clause (1) of article 105 and 194
of the constitution. This power entails for free functioning of parliamentary duties by these members.
Thus, anything said by the members cannot be questioned in any court of law. But this power should be
in conformity to the set rules under Rules and Procedure for Conduct of Business of Lok Sabha. This
privilege is no way gives license for unrestricted freedom of speech.

Freedom of speech under article 19(1)(a) is different from this privilege. Parliament is forbidden by
constitution to discuss the conduct or actions of judges unless a removal motion is passed against such
judge. A conflict between both freedoms has been seen with respect to wider ambit of them. In
Searchlight Case30 it was decided that article 105 or 194 as the case may be are having wider application
as to article 19(1)(a). These are the privileges and not a fundamental right. If these privileges are not

25 The Constitution of India 1950, art 361 A.

26 Rules of Procedure and Conduct of Business in Lok Sabha, rule no. 229 and 230.
27 Ibid, rule no. 232 and 233.
28 First Report of Committee of Privileges of Second Lok Sabha, adopted by Lok Sabha on 13 September, 1957.
29 Hemant Singh, “What are the Parliamentary Privileges in India?”, <
https://www.jagranjosh.com/general knowledge/parliamentary-privileges-in-india-1548994252-1>, dated 01st
February 2019, as accessed on 02nd April 2020.
30 M.S.M Sharma Vs. Srikrishna Sinha, AIR 1959 SC 395.

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meant to be equivalent to the rights and restrictions under 19(1), then there would have been some
legislative intent of constituent assembly behind such difference among both articles.

Freedom of Arrest

Another privilege or immunity enjoyed by the MP’s and MLA’s is freedom form arrest. It is the
immunity which provides that no member shall be arrested before or after the session of
parliament or adjournment of parliament for the period of 40 days, only in civil cases. It implies
that no member shall be arrested, without the permission of the presiding officer of the house to
which such member belongs, from the parliament. Also the speaker or the chairman of the house,
as the case may be, has to be informed if any such member of the house is convicted, imprisoned,
detained or arrested with reasons for such arrest. 31 But no immunity from arrest exists in matters
of criminal cases. Members can be arrested anywhere outside the parliament in criminal cases.
Acts which permits for such arrest includes Preventive Detention Act, POTA32, National Security
Act (NSA), ESMA33 and other acts.34

Breach of Privileges and Contempt of House

If any member or officer of Parliament violates or disobey these privileges by way of disrespect,
abuse, attack or malafidely, such acts are considered to be in line with breach of immunities and
privileges. Such breach is punishable by the house. Also contempt of either house, in a way
which impedes proper functioning of the house, is also punishable. It can be either suspension of
members from the house or in form of expulsion. This punishment enshrines the sovereignty
character of parliament to protect its rights and dignity. This power to punish 35 for contempt or
breach is affirmed by SC in case of Rajaram Pal & Ors. Vs. Union of India & Ors 36. Several
cases have been seen for such contempt of house or breach of privileges but no action as such
have been taken on them yet.
31 Supra 9.
32 Prevention of Terrorism Act 2002.
33 Essential Services Maintenance Act 1968.
34 Supra 2.
35 The Constitution of India 1950, art 105(3).
36 Writ Petition (Civil) 1 of 2006.

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Page 20 of 29
 IRREGULARITY IN GRANTING OF SANCTIONS

The powers rendered in the relevant section are discretionary powers and not discriminatory
power as it has reasonable classification principle. Sanction is not necessary when the said
offence is not in direct connection with the discharge of the person’s official duty.37

Trial without a sanction, if required, renders the proceedings ab initio void. 38 But the term for a
valid sanction is when the court is called to the cognizance of the offence. When the offence is
alleged to have been committed, the accused was a public servant but if at the time the court is
called upon to take cognizance, the accused has ceased to be public servant, no sanction would
be necessary. The Section has to be restricted to duties which are not criminal activities.
Prosecution can be initiated against any MP or MLA with the permission of Lokpal’s seven
member bench to initiate or investigate prosecution without any sanction for prosecution is
essential from other authority. Where the public servant is prosecuted simultaneously for more
than one offence and if any offence out of them is such which requires sanction, then without the
prior sanction of the competent authority, the Magistrate cannot take cognizance of all the
offences against that public servant and try him for those offences.39

40
In the case of Surinderjit Singh Mand & Anr Vs. State Of Punjab & Anr Deputy
Superintendents of Punjab Police, PS Parmar and SS Mand were accused of illicitly detaining
one Neeraj Kumar in a vehicle theft case for four days without formally arresting him. The
officials challenged their summoning before the Hon’ble High Court as a sanction so as to
prosecute them was not issued. The court dismissed their appeal because they were not
discharging their official duty so no need of sanction was seen to go on with the prosecution. It
was said that “Public trust in the institution can be maintained by entertaining causes coming
within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law
and the established procedure and without delay. Dispensing with of jurisdictional or statutory

37 Romesh Lal Jain Vs. Nagendar Singh Rana, (2006) 1 SCC 294.
38 R S Nayak Vs. A R Antulay, AIR 1986 SC 2045 : (1986) Cr LJ 922 (SC).
39 Pawan Kumar Vs. Ruldu Ram, 1982 Law Suit (P&H) 143.
40 Criminal Appeal No.565 OF 2016.

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requirements which may ultimately affect the adjudication itself, will itself result in people
losing faith in the system.”
R. Balakrishna Pillai Vs. State of Kerala 41, the Court has held that the charge of conspiracy
would not attract Section 197 of the Code for as that it is not a part of the official duty of a
Minister to enter into a criminal conspiracy.

“In Harihar Prasad Vs. State of Bihar 42, the Court, considered the contention if the acts
complained of were directly linked with the official duties and to enter into a criminal conspiracy
was not one of them and “hence want of sanction under Section 197 of the Code was no bar to
the prosecution”. It has to be noted that the question would have to be examined in the facts of
each case and it seems irrational that sanction given under Section 197 of the Code was not a
prerequisite necessity, when cognizance was based on the evaluation of “evidence” by a Court
itself.43

In Jaswant Singh Vs. State of Punjab44, sanction for prosecution, had been formerly given, of
the accused for an offence committed under section 5(1)(d) of the Prevention of Corruption Act,
1947. But there was no sanction given for his offense under section 5(1)(a) of the said Act. The
court held, that no sanction is granted for prosecution under section 5(1)(a) of the act, hence no
cognizance could be taken over such prosecution without prior sanction. But the accused can be
tried under section 5(1)(d) because of the prior sanction for prosecution has been granted. In
State of Goa Vs. Babu Thomas45, it was decided that if a valid sanction is absent on the date
when cognizance of the offence is taken by the Judge, the taking of the cognizance was “without
jurisdiction and wholly invalid”.”

Sanctions give immunity to the Member of Parliament and the members of legislative assembly.
It gives them a chance for fair trial in accused-oriented justice system of our country. In cases
trials are initiated without sanctions, the rules formed through years of judicial intellect are
followed. The trial would only be vitiated in the cases where there is a close nexus between the

41 R. Balakrishna Pillai Vs. State of Kerala, (1996) 1 SCC 478.

42 Harihar Prasad Vs. State of Bihar, (1972) 3 SCC 89.
43 Romesh Lal Jain Vs. Nagendar Singh Rana, (2006) 1 SCC 294.
44 Jaswant Singh Vs. State of Punjab, AIR 1958 SC 124.
45 State of Goa Vs. Babu Thomas, (2005) 8 SCC 130.

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act and the office. Otherwise, if the act was of criminal nature, out of course of duty, there is not
point in seeking a sanction and the trial therefore continues.
JUDICIAL TRENDS IN INDIA REGARDING PROSECUTION OF MP’S
AND MLA’S

Landmark Judgments have always tended to clarify the air around sanctions and their need and
validity. MLA is not considered a public servant as under Section 21 of IPC. However, there lies
a contrast in the definition of public servant under the Prevention of Corruption Act, 1988.

46
In P.V. Narishma Rao Vs. CBI the Supreme Court Constitution Bench held that M.Ps and
M.L.As are public servants as given under Prevention of Corruption Act, 1988 and till
amendments are made regarding the sanctioning authority, the power will vest in Speaker or the
Chairman of the respective legislative House.

In the case of R.S Nayak Vs. A.R Antulay 47, the Chief Minister of Maharashtra formed seven
trusts and made a condition that unless the sugar cooperatives of the state did not contribute to
one of them called the India Gandhi Pratibha Pratishthan or IGPP, the demands of the said sugar
cooperatives would not be acceded to. This was filed as a case of extortion under section 383 48
against the public servant. This case led to discover some significant insights in the question of
law pertaining to sanction of an MP or an MLA.

The section 197 protects officials against the uncalled intrusion of general people. Therefore, the
protection available is only applicable when the allegation upon a public servant is in direct
relation with the discharge of their official duty and not “merely a cloak for doing an
objectionable act”.49

In case of Prakash Singh Badal Vs. State Of Punjab 50, the court opined that the act must be
done within the ambit of the official duties of the public servant in question and not in their
personal capacity. What is important here is the nature of the offence and the protection of this

46 P.V. Narishma Rao Vs. CBI, [1998 SC].

47 R. S. Nayak Vs. A. R. Antulay, AIR 1986 SC 2045 : (1986) Cr LJ 922 (SC).
48 Indian Penal Code ,1860.
49 Rakesh Kumar Mishra Vs. State of Bihar, (2006) 1 SCC 557.
50 Prakash Singh Badal Vs. State of Punjab, AIR 2007 SC 1274.

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provision is available if the act is one out of official duty. If a police officer uses power to harm
others in discharge of his duty then sanction may be necessary.
But if without any explanation therefore then the provision under Section 197 of the Code cannot
be used. The public servant committing the offence must have necessarily abused or misused
office and the authority must be able to do away with him so as to be allowed to award
sanction.51 In case of plurality of offices permission is not necessary from all authorities entitled
for the removal of the public servant from an agency which is not alleged or abused.

In Dr. Subramanian Swamy Vs. Dr. Manmohan Singh and Anr.52 where The appellant wrote
multiple letters to Dr. Singh to take action against the corrupt activities (and gross violation of
Clause 8 of Guidelines for United Access Services License issued by the Ministry of
Communication and Information Technology) of respondent 2, that is, A. Raja in light of the 2g
scam resulting in a loss of around Rs. 50,000 cores to the Government. At the time the person in
question held two responsible positions but it was reiterated that act and the complaint should
have a direct nexus.53 To hold otherwise would render Section 6 as a guard to an unprincipled
public servant. It may so happen that the interested parties may change the office of the accused.

54
In the case of Matajog Dobey v H.C Bhari where a search warrant was issued under section 6
of the Taxation on Income (Investigation Commission) Act, 1947 that had authorized 4
officials to search two properties in Kolkata. There they ended up by force breaking lock to
enter the premises. They injured the darwan and battered the proprietor with the aid of two other
policemen. Two separate complaints were filed. It was held by the Supreme Court that sanction
was required as the force was criminal in nature and related to the performance of the official
duties of the accused within the meaning of s. 197 of the Code of Criminal Procedure.
CONCLUSION

In Criminal Procedure Code 1973, sanctions are required for prosecution of persons associated
with military and the forces that have the work of maintenance of public order, prosecution of
offences against the state and for prosecution of judges and public servant. The definition of

51 Afzalur Rehman Vs. King Emperor, (1948) 44 Cri LJ 466: AIR 1943 FC 18.
52 Ibid.
53 A.D. Parthasarthy Vs. J.S. Khurdukar, 1975 Cri LJ 1290.
54 Matajog Dobey Vs. H.C Bhari, 1956 Cri LJ 140: AIR 1956 SC 44.

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public servant given under Prevention of Corruption Act is much wider and more people can be
covered under list of public servants including MP’s And MLA’s. In light of the above, it can be
observed that the major prerequisites required to prosecute an MP or an MLA or rather any
public servant are sanction to prosecute provided in section 132 of Cr.P.C and section 197 of
Cr.P.C have to be obtained before taking cognizance of an offence by the court. The main reason
behind the idea of sanction is to protect the public servants falling under the important categories
to be safeguarded from malicious and false prosecutions. But this protection cannot be given in
cases where acts done by public servants are not in discharge of their official duty but are in
personal capacity.

The cases which involve MP’s and MLA’s are in most instances delayed or not investigated
properly. Delays are caused because of the influence these people can have over the smooth
working of the case. The law commission report on “Expeditious Investigation and Trial of
criminal cases against Influential public personalities” made useful recommendations relating to
reducing arrears in the investigation and prosecution of such criminal cases. It has also
formulated the directions that should be given to the existing legal framework to see that there
are no impediments created in the investigation or trial of influential people.

Trials without a sanction, if required, render the proceedings void ab inito. But a valid sanction is
required when the court is to take cognizance of the offence accused is alleged of. The offence
was committed when the accused was a public servant but when the court calls upon for taking
cognizance of such alleged offence, accused ceased to be a public servant. In such case no
sanction is required for prosecution. Therefore, the legislation for sanctions of high public
personalities and government officials anyway needs further refinement and lucidity.

ANNOTATED BIBLIOGRAPHY

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STATUTES

 Criminal Procedure Code 1973 ........................................................................................7

 Indian Penal Code 1860 ...................................................................................................8
 The Constitution of India 1950 ...................................................................................... 19
 The Prevention of Corruption Act 1988 ......................................................................... 13

RULES

 Rules of Procedure and Conduct of Business in Lok Sabha, rule no. 229 and 230 - The
rules are meant to be followed by the members of Parliament for good conduct of
business in the house

ARTICLES

 “Indian Constitution and Parliamentary Privileges – a Background Note”- I have used

this article for the relevent sections of Power, Privileges and Immunities available to
MP's and MLA's.
 “Parliamentary Privileges and Immunities in Indian Constitution” - From this article, I
have used the list of privileges MP's and MLA's have with them under the Constitutional
law and other laws as well.
 “Prevention of Corruption Act:no reason for not taking bold decisions now”- This artcle
is used to know whether MP's and MLA's are given a status of Public Servant under the
Prevention of Corruption Act.
 “Whether MLA’s are Public Servants?”- The definition of Public Servant under IPC is
dealt with and the article helps to find whether MP's and MLA's are PUblic Servants
under the Indian Penal Code.
 Sanjay K Singh, “Public Servants can be Prosecuted without Prior Sanctions”- The
article helps to find out when does sanction is required to prosecute the MP's and MLA's
and in what cases no sanction is required to prosecute the Public Servants.
 Simran, “Requirement of Sanction”- I used this article to determine why sanctions are
needed before prosecuting an MP or an MLA.

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BOOKS

 R.V. Kelkar, ‘Criminal Procedure’, ( 6thedn, EBC 2018 ) - The book helps to find out the
case laws relating to Sanctions to prosecute MP's and MLA's and the court decisions.
Chapter 10 of the book was used.

REPORTS

 Expeditious Investigation and Trial of Criminal Cases Against Influential Public

Personalities Report No.239 - The report contains some recommendations relating to
reducing arrears in the investigation and prosecution of criminal cases which involve
serious offences and their trials
 First Report of Committee of Privileges of Second Lok Sabha, adopted by Lok Sabha - A
Privilege to members of the house is given under this report where they are not allowed
to give evidence or documents of proceedings of the house in the court of law.
CASES

 M. Karunanidhi Vs. Union of India – The court ruled that MLA’s are not considered to be
the public servant as they are not under the service of state government.
 Surinderjit Singh Mand & Anr Vs. State Of Punjab & Anr – SP of Police was alleged of
illegal detention of a person. The court refused to grant sanction and ordered that the act
done by them are not covered under the ambit of official duty.
 Dr. Subramanian Swamy Vs. Dr. ManmohanSingh – This is the famous 2G Scam case
where the petitioner wrote to Mr. Singh to takle actions against the persons indulged in
the act. The accused was holding two positiona and again the court reiterated that the act
done and the complaint should have a direct nexus.
 Jaswant Singh Vs. State of Punjab – The ruling of the court was that the sanction granted
under the Prevention of Corruption Act is for prosecution and not a sanction for taking
cognizance of the offenec accused is alleged for commission.
 L.K.Advani Vs.State (CBI/SPE) – Court refused to take into consideration the definition
of public servants given under IPC and amendment was brought to the Preventiuon of
Corruption Act 1947.

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 M.S.M Sharma Vs. Srikrishna Sinha – Freedom of speech under article 105 is special and
above the freedom given under article 19(1)(a).
 Matajog Dobey Vs. H.C.Bihar – The court held that the use of criminal force by the
accused to serach two properties in Kolkata comesa under his official duty and thus
sanction is required for prosecution of such accused.
 P.V. Narishma Rao Vs. CBI – The court decided that MP’s and MLA’s are within the
definition of public servants under the Prevention of Corruption Act but not under the
definition given in IPC.
 Pawan Kumar Vs. Ruldu Ram – When a person is prosecuted simultaneously for more
than one offenece and any one of the offence is such which require prior sanction to
prosecute, the magistrate can not proceed with the prosecution for all alleged offences.
 Prakash Singh Badal Vs. State of Punjab – Acts done beyond official duty of a public
servant would render the need of prior sanction to prosecute them. Act must be one done
in official capacity and in personal capacity.
 R. Balakrishna Pillai Vs. State of Kerala – The court in this case distinguished between
the acts done in official capacity as public servant and act done in personal capacity.

 R. S. Nayak Vs. A. R. Antulay – Chief minister of state alleged to be indulged in act of

extoting the sugar mill cooperatives demanding funds to be invested in IGPP scheme. He
later became the MLA and no more at position of Chief Minister. Court opined that no
sanction is required to prosecute him as MLA’s are not public servant under IPC.
 Romesh Lal Jain Vs. Nagendar Singh Rana – In this case the court was of the view that
power to grant sanction is dicretionary and dicriminatrory. Sanctions are requires to
prosecute public servants if acts are done in official capacity.
 S.N. Bhowmik Vs. State – In this case the court opined that sanction for prosecution is not
sanction to take cognizance.
 Virendeer Kumar Ohri Case – The report of Expeditious Investigation and Trial of
criminal cases against Influential public personalities was based on the decision of SC in
this case.

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 Rajaram Pal & Ors. Vs. Union of India & Ors – Punishment for contempt of house or the
privileges given to the members can be given by the House, held the court in this case.

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