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2016 Supreme(Raj) 85
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, BENCH AT JAIPUR
PRAKASH GUPTA, J.
Banwari Lal Kushwaha – Appellant
Vs.
State of Rajasthan – Respondents
S.B. Criminal Writ Petition No.234/2016
Decided On : 9-06-2016
For the Appellant : Mr. Rajeev Surana
For the Respondent: Mr. BN Sandu, AAG & GA, Mr. Sudesh Saini, Addl. G.C, Mr. RS Raghav, Dy. GC
Headnote:
Election - Representation of People Act, 1951 - Section 59, 62 and 62(5) - Indian Penal Code, 1860 - Section 302 and 120 B - Rajaya Sabha Election - Voters - Right to Vote - Custody for purpose of participating in casting vote in Rajaya Sabha Election - Seeking direction to respondent to allow petitioner to participate in Rajaya Sabha Election and cast his vote which is scheduled - Petitioner is an elected re-presentive of Legislative Assembly, is presently, behind bars pending trial for offence under Section 302 and 120 B of IPC - By notification Election of Rajya Sabha has been declared and voting for same going - Petitioner has right to vote as he represents Dholpur constituency – Held, Police cannot be allowed to vote at an election to the Council of States - However, this restriction is not applicable to a detenue under any law relating to preventative detention. Sub-Section (5) of Section 62 of Act 1951 uses the word shall and therefor, is a mandatory proposition of law which this court is bound to follow, being the express exposition of law by the legislature -Judgment of the Honble High Court of Orrisa in case of Shri Ramesh Chandra Jena (supra), to extent it allows a person subject to restriction of Sub-section (5) of Section 62 of Act 1952 to vote, appears to be in per incurium and this court, in backdrop of express provision of law, feels unable to subscribe to the findings of the said judgment - Petitioner cannot be allowed to cast his vote at the election to Rajya Sabha since, he is in prison and in the lawful custody of the police. Further the proviso to the Section will not apply since he is not in preventive detention - Furthermore, right to cast vote at an election is a statutory right as observed by the Supreme Court in Anukul Chandra Pradhans case - Judgment of Honble Apex Court in the case of Nalin Soren (supra) relied upon by the learned counsel for the petitioner, court opinion is not helpful to interpret provisions of the Representation of People Act - parties in the present petition and they are not made party by the petitioner - Petition dismissed.
By this petition, following prayers have been made:-
(1)“By issuing an appropriate writ, or order or direction, respondent may kindly be directed to allow petitioner to participate in Rajaya Sabha Election and cast his vote which is scheduled on the 11.6.2016 by escorting him in custody for the purpose of participating in casting vote in the Rajaya Sabha Election.
(2)The Hon'ble Court may kindly pass such other order or a direction, which it may deem just, proper and expedient in the facts and circumstances of the present case. Any other appropriate relief to which the appellant/petitioner is found entitle may also be granted.”
2. It is submitted by the learned counsel for the petitioner Shri Rajeev Surana that the petitioner is an elected representive of Legislative Assembly, is presently, behind the bars pending trial for the offence under Section 302 and 120 B of IPC. By notification dated 18th May, 2016 Election of Rajya Sabha has been declared and voting for the same going
to be held on 11th June, 2016. It is submitted that petitioner has a right to vote as he represents the Dholpur constituency. Though, the petitioner is confined in Dholpur jail District Dholpur, yet has the right to cast vote since he has not been convicted and is merely imprisoned pending trial. Therefore, he may be allowed to exercise the said right while accompanied by police escort. Learned counsel for the petitioner made a reference to the Judgment of Hon'ble Apex Court in the case of Nalin Soren v. State of Jharkhand, in petition for special leave to appeal Criminal No. 5859/2013 decided on 18.7.2013 wherein permission to attend the assembly proceedings was granted. It is also submitted that the right of the petitioner to said vote is a constitutional right. Learned counsel for the petitioner has further placed reliance on a judgment of the Orissa High Court in the case of Shri Ramesh Chandra Jena @ Ramesh Jena vs. State of Orissa and Ors., WP(C) No.10342 of 2010, decided on 10.06.2010 wherein the petitioner, a member of the Orissa
Legislative Assembly, was allowed to participate in the process of voting to the Biennial Elections to the Council of States, 2010.
3. On the other hand, Learned Additional Advocate General Shri B.N. Sandhu has submitted that Chief Election Commission of India and the Secretary Rajasthan State Legislative Assembly are necessary parties in the present petition and without there being
made parties the petition is not maintainable and deserves to be dismissed. It is also submitted that in view of Section 62 (5) of Representation of People Act, 1951, the petitioner is not entitled to vote since, he is confined in prison and is in lawful custody of the police. Further, since he is not in preventive detention, proviso to Section 62(5) will not apply. In support of his contention, Learned AAG has placed reliance on Anukul Chandra Pradhan Advocate v. Union of India and others (1997), 6 SCC page 1.
4. I have heard learned counsel for the parties.
5. The preamble to the Representation of the People Act 1950 reads as under;
An Act to provide the allocation of seats in, and the delimitation of Constituencies for the purpose of election to the House of the People and legislatures of states, the qualification of voters at such elections, the preparation of electoral rolls, the manner of filling seats in the council of states to be filled by representatives of Union Territories, and matters connected therewith.
6. The Preamble to the Representation of the People Act 1951 reads as under;
An Act to provide for the conduct of elections of the House of Parliament and to the House or Houses of the Legislatures of each state, the qualification and disqualification for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.
7. From the perusal of the preambles of these Acts, it is apparent that these Ac
