The court recognized the potential infringement of the democratic right of elected members to vote and permitted the filing of a writ petition to challenge the legality of arrests made immediately prior to an election.

ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. Shri B.M.Mangukiya, learned advocate made an urgent mention during the Court proceedings that four persons, named as Shri Vallabh Duda Makwana, Shri Chandu Mohan Makwana, Shri Batuk Makwana and Ms.Vijuben Chauhan, elected members of Taluka Panchayat, Sihor, Bhavnagar, have been arrested around 10:30 a.m., in order to restrain them illegally from casting their votes in the elections of President and Vice President of said Taluka Panchayat. It is submitted that this is a case of highhandedness of the local Police who are there to ensure that the above-named four members may not cast their votes during the polling which would be ending by 12:00 noon, today. The contention is that as per the information received by the counsel, the Police had intimated that some FIR was lodged against these four persons and they have been arrested due to the lodging of the criminal cases, in order to restrain them from casting their votes.

2. Shri Utkarsh Sharma, learned Assistant Government Pleader is directed to get a report from the Superintendent of Police, Bhavnagar, by 1:30 p.m. Learned Government Pleader is also directed to personally contact the Superintendent of Police, Bhavnagar, to find out the reasons for the arrest of the above-noted four persons and assess the situation on the spot. Let this matter be posted at 1:30 p.m.

FURTHER ORDER AT 2:30 P.M.

3. Mr. Utkarsh Sharma, learned AGP has provided the copy of the FIR and the report of the Superintendent of Police, Bhavnagar, which are taken on record.

4. In view of the order passed by us in the pre-lunch session, the report of the Superintendent of Police, Bhavnagar alongwith the copy of the First Information Report lodged yesterday, i.e. on 12.09.2023, registered at 23:10 hours, has been submitted before us. The incident comprising of offence under Sections 365, 114 of the IPC was reported to have occurred on 11.09.2023 at 17:00 hours.

5. The copy of the report of the Superintendent of Police, Bharnagar has been supplied to Mr. B.M. Mangukiya, the learned advocate who has made urgent mentioning today during the court proceedings. Upon perusal of the said report, it is submitted by Mr. Mangukiya, the learned advocate that the alleged report of kidnapping and subsequent recovery of the kidnapped person with the accused in a vehicle on the road was Stage-managed, in order to deprive the members of the Taluka Panchayat from casting their votes. It is submitted that out of four persons, whose names are mentioned in FIR, two persons namely Shri Vallabh Duda Makwana and Ms. Vijuben Chauhan have been permitted to cast their votes, as they were released, whereas two other persons namely Shri Chandu Mohan Gohil and Shri Batuk Bhupat Makwana have been arrested today in the morning, have not been permitted to casts their vote and they are still in the Police custody.

6. The submission, thus, is that the issue is about the right of the elected members of Taluka Panchayat Shihor, Bhavnagar to participate in the democratic process of election their right to cast their votes. As they have been illegally restrained at the behest of some interested persons, due to illegal action of the Police authorities, the matter is required to be considered by invoking the jurisdiction under Article 226 of the Constitution of India.

7. On the said submissions, we permit Mr. B.M. Mangukiya, learned advocate to file a writ-petition incorporating all grounds of challenge to the action taken by the Police a