Dr. Jatish Chandra Ghosh Vs. Hari
Sadhan Mukherjee & Ors  INSC 14 (16 January 1961)
SINHA, BHUVNESHWAR P.(CJ) SINHA, BHUVNESHWAR
P.(CJ) DAS, S.K.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1961 AIR 613 1961 SCR (3) 486
State Legislature-Member, Powers and
Privileges ofPublication of questions disallowed by Speaker-Prosecution for
defamation -Immunity-Constitution of India, Art. 194Indian Penal Code, 1860
(XLV of 1860), ss. 499, 500.
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 ss. 500 and 501 of the Indian Penal
The appellant pleaded privilege and immunity
under Art. 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 Art. 194 of the Constitution
to publish the disallowed questions and could not be prosecuted there for.
Held, that the claim of immunity under Art.
194 of the Constitution must be negatived.
Clause (1) of Art. 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 Art. 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
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 v. Walter, (1868-69) L.R. 4 Q.B. 73,
M. S. M. Sharma v. Sri Krishna Sinha, 
SUPP. 1 S.C.R. 806, distinguished.
Dr. Suresh Chandra Banerjee v. Punit Goala,
(1951) 55 C.W.N. 745, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
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
1961. 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 s. 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 s. 500 of the Indian
Penal Code and the second and third accused, who have been cited as respondents
2 and 3 in this Court, under s. 501 of the Indian Penal Code. After several
adjournments, the petitioner raised, by way of preliminary objection to
the-.criminal prosecution, the question of his absolute privilege and immunity
from prosecution under the provision of the Constitution. The learned
Magistrate by his order dated October 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 v. 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
Art. 228 of the Constitution for having the case withdrawn to the (1) (1951) 55
High Court for determination of the
constitutional question raised by him by way of defence, but that, application
was dismissed by a Bench of the High' Court on November 9, 1955, presumably on
the ground that the. case did not involve any substantial question of law as;
to the interpretation of the Constitution. Not daunted by the adverse order
aforesaid of the Bench of the High Court, the petitioner again moved the High
Court and obtained a rule on several grounds including the question of the
proceedings being barred by the provisions of Art. 194 of the Constitution. The
learned Single Judge, who dealt with the case on this occasion, noticed the
position that strictly speaking the constitutional question could not be
allowed to be reagitated in view of the Bench decision aforesaid. But the
learned Judge all the same dealt with the points raised by the appellant
including the question arising under Art. 194 of the Constitution. The learned
Judge dismissed the application holding that a member of the Legislative
Assembly had no absolute privilege in respect of the questions sought to be
asked by him, which had been disallowed but he had published them all the same.
It was also pointed out that the questions had never been asked in the House
and that, therefore, could not be said to form part of the proceedings of the
House. He further held that the publication in the journal at the instance of
the appellant could by no means be said to have been under the authority of the
House. The appellant moved the learned Judge for a certificate under Art.
132(1) of the Constitution, but that application was also refused on the ground
that the case did not involve any substantial question of law as respects the interpretation
of the Constitution. The appellant then moved this Court and obtained special
leave to appeal from the judgment of the High Court refusing the claim of
privilege. He also obtained stay of 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 Art. 194 of the Constitution and that
on a proper construction' of; those provisions it should have been held (1)
that questions sought to be asked by a member of a Legislative Assembly, even
though disallowed by the Speaker, formed part of the proceedings of the House,
and, as such, their publication would not attract the provisions of the Indian
(2) the provisions of Art. 194 should be
liberally construed in favour of persons like elected members of the Assembly
who are rendering public service not only by making speeches and asking
questions in the Assembly, but also by publishing them in the public press with
a view to apprising the country and, particularly the constituency of what had
been happening in the House. In other words, it Was claimed that there was an
absolute privilege in favour of a member and that, therefore, he could not be prosecuted
for having published the questions he sought to put, but had been disallowed by
Do the provisions of Art. 194 of the
Constitution lend any support to the contentions aforesaid raised on behalf of
the appellant? The first clause of Art. 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 Committee 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;
Art. 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
Art. 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 Art. 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. S. M. Sharma v.
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. v. Lord Abingdon (2),,Lord Kenyon had decided that
a speech which had been made in (1)  Suppl. 1 S.C.R. 806, (2) (1794) 1
ESP. 226; 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.-Mr. 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 v.
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;
170 E,R, 337(2).(1813)1 M, &S. 2 73;
195 E.R, T02.
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 v. 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) (1868) L.R. 4
Q.B. 73, 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 ss. 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.
(1) (1868) L.R. 4 Q.B, 73.