Pinarayi Vijayan led Kerala government has moved Supreme Court seeking permission to withdraw cases against prominent CPI(M) leaders for vandalism in the Kerala Assembly in 2015 when the current ruling party in the State was in opposition.
The plea was filed against a March 12, 2021 order of the Kerala High Court which had dismissed the State's petition against an order of rejection by the Chief Judicial Magistrate's Court at Thiruvananthapuram, seeking permission to withdraw prosecution against accused including sitting ministers.
The State government stated that the High Court failed to appreciate that the alleged incident had occurred while the assembly was in session and no crime could have been registered against the MLAs without previous sanction of the Speaker of the house for an incident which happened on the floor of the house.
"The FIR registered by the Secretary Legislative Assembly without the consent of the Speaker is wrong...the act of the accused persons being in relation to their function to protest as members of the legislative assembly the MLA’s who are accused in this FIR had entitled to get protection under the Constitution," the petition said.
In this regard, the State also highlighted Articles 105(3) and 194(3) of the Constitution of India which confers certain privileges and immunities on the members of the parliament and State legislature.
"Therefore it not proper to the Secretary of Legislative Assembly to file cases against MLAs with regard to an incident that happened on the floor of the House during the protest made by the opposition members," the plea emphasised.
The appeal further stated that the question involved is with regard to the interpretation of Section 321 of the Code of Criminal Procedure which gives powers to the prosecutor to file an application for withdrawal of a case.
"This Hon’ble Court settled the proposition of law on this aspect in a number of decisions. What can be look into by the court whether the public prosecutor had filed the application for withdrawal in good faith after independently analysing the whole situation and whether the withdrawal of the cases will help the ends of justice," the appeal said.
The Kerala High Court in its order had noted that question was whether the acts allegedly committed by the accused, which, if proven, would be offences punishable under the Indian Penal Code, are to be reckoned as part of the proceedings of the House, for the purpose of their protection.
"The answer can only be in the negative, since privileges and immunities are provided to ensure smooth functioning of the House by guaranteeing absolute freedom to the members to speak and participate in its deliberations. Here the allegation is of the functioning of the Assembly Session having been disrupted by the members by trespassing into the Speakers Dias and committing mischief. The aforementioned acts, if proven to be true, can, by no stretch of imagination, be deemed to be acts done in furtherance of the free functioning of the house," the High Court had said.
The Kerala government contended that when the alleged offences under Section 447 and 427 of IPC and Section 3(1) of the Prevention of Damage to Public Property Act happened in connection with an incident on the floor of the Legislative Assembly, it was not proper dismiss an application filed by the prosecutor under section 321 of Criminal Procedure Code by the Court on the ground that the application submitted by the public prosecutor was not in good faith.
The State argued that there was no evidence to show that the application submitted by the public prosecutor was not in good faith and was based on external influence.