N.M. Lodha, Advocate General with Abhinav Sharma, Government Counsel and Laxman Meena, PP, for State

Hon'ble AHLUWALIA, J.—The present petition has been filed under Section 438 Cr.P.C. for grant of transit bail to the petitioner in a case arising out of FIR No. 308/2011 registered at Police Station Thatipur Distt. Gwalior Madhya Pradesh for the offences under Section 3(1)(2)(4) of the Madhya Pradesh Protection of Investors Act, 2000 and Section 420 of Indian Penal Code and Section 45 (s) of the RBI Act, 1934.

2. Petitioner has been named as accused in above said FIR.

3. As is evident that the above said FIR was registered in the year 2011.

4. Counsel for the petitioner has submitted that petitioner had submitted resignation in the year 2010 as Director of the Company qua which commission of offences is alleged by submitting Form No. 32 and same was received in the office of Registrar of the Companies, Madhya Pradesh, Gwalior on 28th July, 2010.

5. Counsel for the petitioner has submitted that once petitioner had resigned as a Director of the Company, he cannot be held liable for the alleged offences. Even otherwise, unless or until, Director is responsible for the day to day affairs of the Company, he cannot be vicariously held liable.

6. This Court will not go into the merits of the case as whether petitioner is entitled to relief of pre-arrest bail or not, is to be decided by the Madhya Pradesh High Court which has territorial jurisdiction to entertain pre-arrest bail application of the petitioner.

7. Before this Court, the limited prayer is, whether transit bail can be granted to the petitioner to approach the concerned High Court to obtain relief of pre-arrest bail.

8. It is urged that during pendency of the registration of the case, petitioner contested election to Rajasthan Legislative Assembly and has been elected as Member of Legislative Assembly. It is contended that petitioner openly canvassed in the Constituency and approached the electorate by holding door to door canvassing. At that time, petitioner was not arrested but on even of taking oath as Member of Legislative Assembly, petitioner is being hounded, as he belongs to opposition.

9. Counsel for the petitioner has submitted that the first Meeting of the Legislative Assembly has taken place and duly elected Members have already been sworn in.

10. Counsel for the petitioner has submitted that due to registration of the FIR and issuance of warrants of arrest, petitioner could not attend the assembly and take the oath.

11. The transit bail is also sought for the reason that during the period petitioner may take oath and save his seat to respect the mandate of the people i.e. ultimate sovereign.

12. This Court on 5th February, 2014 had made a request to the learned Advocate General to assist this Court.

13. Learned Advocate General in pursuance to the request made has caused appearance.

14. It is submitted by the learned Advocate General that plea raised by the counsel for the petitioner that seat of the petitioner shall be declared vacant is misconceived. It is stated that as per Article 190(4) of the Constitution of India, if a Member for a period of sixty days remain absent then, only the House may declare seat vacant.

15. The learned Advocate General has submitted that first Meeting of the House had taken place on 21st January, 2014 and hence, till 21st March, 2014 there is no threat to the petitioner that his seat shall be declared vacant.

16. It is further submitted that the Article 190(4) use the word `may' and there is neither any basis nor material to assume that the house shall declare the seat of the petitioner to be vacant.

17. Learned Advocate General has further submitted that Ultimately will of the House has to prevail and, therefore, no order can be passed which amounts to interference in the affairs of legislature and as per doctrine of separation of the powers, this Court should respect the will and mandate of the House and should refrain to pass any direction.

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