iminal Appeal No 65 of 1958
Appeal by special leave from the judgment and order dated April 11 1956 of the Calcutta High Court in Criminal Revision No 1584 of 1955
N C Chatterjee Arun Kumar Dutta and D N Mukherjee for the appellant
KB Bagchi and SN Mukherjee for the respondents
January 16
The Judgment of the Court was delivered by SINHA CJ
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 section 500 Indian Penal Code was allowed to proceed
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 Ghatal 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 488 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 questions 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 or 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 a 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 complaint
The petition of complaint charged the appellant with an offence under section 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 section 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 II 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 1 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 article 228 of the Constitution for having the case withdrawn to the 1 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 article 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 article 194 of the Cotistitution
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 article 1321 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 fur
ther 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 490 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 article 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 article 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
Do the provisions of article 194 of the Constitution lend any support to the contentions aforesaid raised on behalf of the appellant The first clause of article 194 does not call for any comment in this case because no question as regards freedom of speech in the Legislature of a State has been raised
Clause 2 of the Article has firstly laid down a bar against any proceedings civil or criminal against any member of a Legislature of a State in respect of anything said or any vote given by him in the Legislature or any Com mittee thereof and secondly that no person shall be liable in a civil or criminal proceeding in respect of the publication of any report paper votes or proceedings under the authority of a House of such a Legislature
It is not contended that the publication complained against in this case was under the authority of the Legislative Assembly of West Bengal
So the second part of the second clause of article 194 cannot be pressed in aid of the appellants contention
As regards the first part of the second clause can it be said that the publication which forms the subject matter of the 491 prosecution in this case can come within the purview of  anything said or any vote given  by a member of
the Legislative Assembly The answer must be in the  negative
It is therefore manifest that el
2 of article 194 is equally of no assistance to the appellant
Naturally therefore reliance was placed in the course of arguments in this Court on the provisions of cl
3 of article 194
Does the publication of a disallowed question by a member of an Assembly come within the powers privileges and immunities of the members of the House  The answer to this question depends upon finding out what are the powers privileges
and immunities of the members of the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution
This Court in the case of M section M Sharma vs Shri Sri Krishna Sinha 1 has considered in great detail those immunities with respect to the publication of a portion of a speech which was directed by the Speaker to be expunged from the proceedings of the House
This Court has held that the publication of such a portion of the proceedings is not within the privilege attaching to the publication of a faithful report of the proceedings of a House of the State Legislature
That case was not concerned with the penal law of the country
In that case the Court was concerned with ascertaining the powers of the Assembly to punish for contempt of the House with reference to the privileges and immunities of a House of the Legislature of a State
Hence that decision does not assist us in determining the present controversy
If we turn to the legal position in England with reference to the House of Commons it is clear that the immunity of a member of the House of Commons is in respect of the speeches made by him in Parliament but it does not extend to the publication of the debate outside Parliament
If a member of a House of Commons  _publishes his speech made in the House separately from the rest of the proceedings in the House he will be liable for defamation if his speech contains matters defamatory of any person
In the celebrated case of R vs Lord Abingdon 2Lord Kenyon had decided that a speech which had been made in 1 1959 Suppl 1 SCR 806 2  170 ER337 492 the House of Lords was not privileged if published separately from the rest of the debate
In May Parliamentary Practice 16th Edition by Lord Campion occur the following statements in respect of the two well known cases of Abingdon 1 and Creevey Journal of the House of Commons 1912 13 704 Abingdon s case 1
An information was filed against Lord Abingdon for a libel
He had accused his attorney of improper professional conduct in a speech delivered in the House of Lords which he afterwards published in several newspapers at his own expense
Lord Abingdon pleaded his own case in the Court of King s Bench and contended that he had a right to print what he had by the Law of Parliament a right to speak but Lord Kenyon said that a member of Parliament had certainly a right to publish his speech but that speech should not be made a vehicle of slander against any individual if it was it was a libel
The Court gave judgment that his lordship should be imprisoned for three months pay a fine of pound 100 and find security for his good behaviour
Creevey s case 2 1813
Creevey a member of the House of Commons had made a charge against an individual in the House and incorrect reports of his speech having appeared in several newspapers Mr Creevey sent a correct report to the editor of a newspaper with a request that he would publish it
Upon an information filed against him the jury found the defendant guilty of libel and the King s Bench refused an application for a new trial See Lord Ellenborough s judgment in Rex vs Creevey 2
Mr Creevey who had been fined pound 100 complained to the House of the proceedings of the King s Bench but the House refused to admit that they were a breach of privilege
 It is clear on a reference to the law in England in respect of the privileges and immunities of the House of Commons that there is no absolute privilege attaching to the publication of extracts from proceedings in the House of Commons
So far as a member of the House of Commons is concerned he has an absolute privilege 1 1794 Esp 226 M section 2 73 493 in respect of what he has spoken within the four walls of the House but there is only a qualified privilege in his favour even in respect of what he has himself said in the House if he causes the same to be published in the public press
The case of publication of proceedings of Parliament not under the authority of the House stands on the same footing as the publication of proceedings in courts of justice
That was made clear by Cockburn CJ in the case of Wason vs Walter 1
Explaining why the publication of a single speech in the proceedings in the House would not be absolutely privileged the learned Chief Justice observed  It is to be observed that the analogy between the case of reports of proceedings of courts of justice and those of proceedings in Parliament being complete all the limitations placed on the one to prevent injustice to individuals will necessarily attach on the other a garbled or partial report or of detached parts of proceedings published with intent to injure individuals will equally be disentitled to protection
So long as Parliament does not crystallise the legal position by its own legislation the privileges powers and immunities of a House of a State Legislature or Parliament or of its members are the same as those of the House of Commons as stated above
In the present case the appellant sought to put certain questions bearing upon the conduct of the complainant the first respondent in this case
According to r 27 of the Assembly Procedural Rules certain conditions have to be fulfilled in order that a question may be admissible
Amongst other requirements of the rule one of the conditions is that it must not contain any imputation or imply a charge of a personal character
Rule 29 of those rules authorises the Speaker to decide on the admissibility of a question with reference to the provisions of the rules and lays down that the Speaker  shall disallow any question when in his opinion it is an abuse of the right of questioning or is in contravention of those provisions
 In view of the conclusion we have already reached namely that there is no absolute privilege even in favour of a member of the Legislature in respect of a publication not of the entire 63 1  94
proceedings but of extracts from them it is not necessary for us to decide the question whether disallowed questions can be said to form part of the proceedings of a House of Legislature
In this connection it is also relevant to note that we are concerned in this case with a criminal prosecution for defamation
The law of defamation has been dealt with in sections 499 and 500 of the Indian Penal Code
Section 499 contains a number of exceptions
Those specified exceptions lay down what is not defamation
The fourth exception says that it is not defamation to publish a substantially true report of the proceedings of a court of justice but does not make any such concession in respect of proceedings of a House of Legislature or Parliament
The question naturally arises how far the rule in Wason s case 1 can be applied to criminal prosecutions in India but as this aspect of the controversy was not canvassed at the Bar we need not say anything about it as it is not necessary for the decision of this case
The legal position is undisputed that unless the appellant can make out an absolute privilege in his own favour in respect of the publication which is the subject matter of the charge in this case the prosecution against him cannot be quashed
As we have held that he has no such absolute privilege in agreement with the High Court he must take his trial and enter upon his defence such as he may have
As the evidence pro and con has not been recorded in full the arguments at the Bar had naturally to be confined to the purely legal question of the absolute privilege claimed
It need hardly be added that we do not express any opinion on the merits of the controversy which will now be gone into by the learned Magistrate before whom the case has been pending all these years
For the reasons given above it must be held that there is no merit in this appeal
It is accordingly dismissed
The pending prosecution which has been held up for so long it is expected will now be proceeded with without any avoidable delay
Appeal dismissed


Summary:
The question for determination in the appeal was whether the Union of India was entitled to levy and recover arrears of excise duty on cotton cloth for the period April 1 1949 to March 31 1950 payable by the respondent a cloth mill in the State of Rajasthan under the Rajasthan Excise Duties Ordinance 1949
After the coming into force of the Indian Constitution and the extension of the Central Excise and Salt Act 1944 and the rules framed thereunder to the State of Rajasthan by section II of the Finance Act of 1950 the duty in respect of cloth manufactured on and from April 1 1950 became payable under that Act
The appellant Union however claimed that as a result of the agreement entered into on February 25 1950 by the President of India with the Rajpramukh of Rajasthan under article 278 and article 295 of the Constitution the Union of India became entitled as from April 1 1950 to claim and recover all arrears of excise duties which the State of Rajasthan was entitled to recover from the respondent before the Central Excise and Salt Act 1944 was extended to Rajasthan
Notice having been accordingly served on the respondent demanding payment of the outstanding amount of Rs 136551 12 as payable by it it moved the High Court under article 226 of the Constitution
On a reference by the Division Bench which heard the matter in the first instance the Full Bench finding in favour of the respondent held that article 277 was a complete refutation of the said claim by the Union and article 278 and the said agreement were overridden by it
Held that the provisions of articles 277 and 278 of the Con stitution properly construed leave no manner of doubt that article 277 was in the nature of a saving provision subject in terms to the provisions of article 278 permitting the States to levy a tax or duty which after the Constitution could be levied only by the centre
But article 277 had to yield place to any agreement in respect of such taxes and duties made between the Union Government and the Government of a Part B State under article 278
Since there could not be the least doubt in the instant case that the agreement between the President and the Rajpramukh of Rajasthan conceded to the Union the right to levy and collect the arrears of the cotton excise duty in Rajasthan the High Court was wrong in taking a contrary view of the matter