Judgment Case ID: 1105

Judgment:
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. K.B. Bagchi and S.N. Mukherjee	 for the respondents. January 16. The Judgment of the Court was delivered by SINHA	 C.J. 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 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 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 (2)		Lord Kenyon had decided that a speech which had been made in (1) [1959] Suppl. 1 S.C.R. 806	 (2) ; 170 E.R.337	 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	 C.J. 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 appellant	 who was an elected member of the West Bengal Legislative Assembly	 gave notice of his intention to put certain questions in the Assembly and on those questions being disallowed by the Speaker published them in a journal called Janamat of Ghatal	 his own constituency. The first respondent who was then the Sub Divisional Magistrate of Ghatal and whose conduct was the subject matter of some of those questions	 filed a complaint against the appellant and two others	 the editor and the printer and publisher of the janamat	 under sections 500 and 501 of the Indian Penal Code. The appellant pleaded privilege and immunity under article 194 of the Constitution as a bar to criminal prosecution. The trial Magistrate as also the High Court found against him. On appeal by special leave it was claimed on his behalf that he had an absolute privilege under article 194 of the Constitution to publish the disallowed questions and could not be prosecuted therefor. Held	 that the claim of immunity under article 194 of the Constitution must be negatived. Clause (1) of article 194 had no application since the matter was clearly outside the scope of that clause. Clause (2) of that Article was also inapplicable since it was not the case of the appellant that the publication was under the authority of the Legislative Assembly and it could not also be said that it came within the expression " anything said or any vote given " in that clause. The publication of a disallowed question by a member of the Assembly does not come within the powers	 privileges and immunities enjoyed by a member of the House of Commons and	 consequently	 cl. (3) of article 194 also cannot be of any help to the appellant. The immunity enjoyed by a member of the House of Commons is clearly confined to speeches made in Parliament and does not extend to the publication of the debate outside. If he publishes his speech	 made in the House	 separately from the rest of the proceedings of the House	 he is liable for defamation	 in case.it is defamatory. Abingdon 's case	 Espinasse 's Reports	 Nisi Prius 1793 1810	 228 and Creevey 's case	 I Maule and Selwyn 's Reports	 King 's Bench	 1813 1817	 273	 referred to. 487 There is no absolute privilege attaching to the publication of extracts from the proceedings in the House of Commons and a member	 who has absolute privilege in respect of his speech in) the House itself	 can claim only a qualified privilege in respect of it if he causes the same to be published in the public press. Quaere: Whether publication of parliamentary proceedings	 not authorised by the House	 stands on the same footing as the publication of proceedings in a court of law. Wason vs Walter	 (1868 69) L.R. 4 Q.B. 73	 referred to. M. section M. Sharma vs Sri Krishna Sinha	 [1959] SUPP. 1 S.C.R. 806	 distinguished. Dr. Suresh Chandra Banerjee vs Punit Goala	 	 referred to.