Jharkhand High Court
Hemant Soren vs Directorate Of Enforcement on 28 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No.145 of 2024
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Hemant Soren, aged about 48 years, son of Shibu Soren, Resident of Chief Minister House, P.O.-Gonda, P.S. Gonda, District-Ranchi. .... .... Petitioner Versus Directorate of Enforcement, Govt. of India represented through its Assistant Director, Ranchi Zonal Office, Plot No. 1502/B, Airport Road, Ranchi Jharkhand. ([email protected]) P.O. & P.S. -Hinoo, Dist-Ranchi. .... .... Respondent CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Kapil Sibal, Sr. Advocte Mr. Rajiv Ranjan, Sr. Advocate Mr. Piyush Chitresh, Advocate Mr. Shray Mishra, Advocate For the Resp.- E.D. : Mr. S.V. Raju, (Sr. Adv.) Addl. S.G.I. Mr. Zoheb Hossain, Advocate Mr. Amit Kumar Das, Advocate Mr. Saurav Kumar, Advocate Mr. Risabh Dubey, Advocate
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C.A.V on 26/02/2024 Pronounced on 28/02/2024
1. This Court, before proceeding to pass order on merit deems, it fit and proper to refer herein the order passed by this Court on 26th February, 2024, which reads as under:
"1.This case has been listed under the heading „For Orders‟ with defects.
2.It has been submitted by the learned Senior Counsel for the petitioner that the defect, as pointed out by the office, has already been removed.-2-
3.Mr. Amit Kumar, Das, learned counsel appearing for the respondent-E.D. has sought for leave of this Court to file counter affidavit in the Court. It has been submitted that the copy of the same has been served upon Mr. Rajiv Ranjan, learned Senior Counsel for the petitioner.
4.Let it be taken on record.
5.Learned Senior Counsel for the petitioner has submitted that he does not require to file any response to the counter affidavit.
6.One supplementary affidavit has also been filed, which has been prayed to be taken on record. The copy of the same has been served upon Mr. Amit Kumar Das, learned counsel appearing for the respondent-E.D.
7.Let it be taken on record.
8.Learned senior counsel for the respondent also does not require time to file any response.
9.The compilation of judgments have also been filed by Mr. Amit Kumar Das, learned counsel for the respondent-E.D. by serving soft copy of the said judgments upon Mr. Rajiv Ranjan, learned Senior Counsel for the petitioner.
10.Accordingly, both the parties have submitted that the matter may be heard on merit.
11.Heard Mr. Kapil Sibal, learned senior counsel being assisted by Mr. Rajiv Ranjan, learned senior counsel for the petitioner at length.
12.In response, Mr. S.V. Raju, learned Addl. S.G.I being assisted by Mr. Amit Kumar Das has argued on behalf of respondent-Enforcement Directorate.
13.Learned senior counsel for the petitioner has also responded to the argument so made by learned senior counsel for the respondent.
14.Hearing of both the parties concluded. The judgment is reserved."
Prayer:
2. The instant writ petition has been filed under Article 226 -3- read with Article 227 of the Constitution of India seeking therein following reliefs:
"a. For quashing of the order dated 22.02.2024 passed by learned court of AJC 1st cum Special Judge, PMLA, Ranchi in connection with ECIR No. 06/2023 whereby an application filed on behalf of the petitioner seeking permission to participate in the Budget Session scheduled to be held from 23.02.2024 up to 02.03.2024 has been rejected in a most arbitrary manner and against the constitutional mandate as well as legal propositions settled by the Hon‟ble Supreme Court of India, now pending in the court of learned AJC 1st Cum Special Judge, PMLA, Ranchi.
b. for granting permission to the petitioner to participate in the Budget Session scheduled to be held from 23.02.2024 up to 02.03.2024 in the Jharkhand Vidhan Sabha."
Brief facts of the case:
3. Brief facts of the case, as per the pleading made in the writ petition as also in the supplementary affidavit filed on behalf of the petitioner, which needs to be refer herein reads as under:
4. It appears from the factual aspects that an FIR bearing No. 272 of 2023 dated 01.06.2023 was registered by P.S. Sadar, Ranchi against one Bhanu Pratap Prasad, Revenue Sub Inspector under Section 465/467/468/469 476/466/420/379/474 of the Indian Penal Code. Thereafter, on the basis of aforesaid FIR, ECIR bearing -4- No. RNZO/25/23 was recorded by the Directorate of Enforcement, Ranchi Zonal Office on 26.06.2023.
5. In connection with the said case, various summons were issued to the present petitioner, namely, Hemant Soren and on 20.01.2024 the petitioner was questioned by the ED Officials and thereafter he was taken into custody by the ED Officials on 31.01.2024.
6. Thereafter, the petitioner was produced before the learned Court of Additional Judicial Commissioner 1st cum Special Judge, PMLA, Ranchi on 01.02.2024.
7. For remand of the petitioner, the respondent-ED preferred an application before learned Court of Additional Judicial Commissioner 1st cum Special Judge, PMLA, Ranchi, which was allowed vide order dated 02.02.2024 and the petitioner was remanded for a period of five days. Further, on 07.02.2024, an application for extension of remand was filed by the respondent-ED, which was also allowed and remand was extended for a further period of five days and lastly on 12.02.2024, application for extension was allowed for 72 hours.
8. It has further been stated that petitioner was produced on 15.02.2024 upon expiry of remand period and since then the petitioner is in judicial custody. -5-
9. It has been stated that thereafter on 20.02.2024, the petitioner preferred an application before the learned court seeking permission to participate in Budget Session scheduled to be held from 23.02.2024 to 02.03.2024 but the same was rejected vide order dated 22.02.2024 on the ground that such power to grant permission is upon the Constitutional Court, which has been questioned by filing the instant writ petition by invoking the power conferred to this Court under Article 226 and 227 of the Constitution of India.
10. It has been stated in the writ petition that previously, the petitioner was the Member of Rajya Sabha from June, 2009 to January, 2010, elected to the Legislative Assembly in December, 2009, served as the Deputy Chief Minister of Jharkhand from September, 2010 till January, 2013 and Chief Minister from July, 2013 till December, 2014.
11. It has further been pleaded in the writ petition that the petitioner is a law abiding citizen, who had assumed the office of Chief Minister in December, 2019 and is presently serving as the Chief Minister of the State, however, this fact has been rectified by filing supplementary affidavit stating therein that he was -6- serving as Chief Minister of the State till the date of arrest i.e., 31.01.2024.
12. The Hon'ble Governor has called for a Session of the House scheduled to be held from 23.02.2024 to 02.03.2024 in terms of Article 174(1) of the Constitution of India and a notification being Notification No. 2575/Vi.Sa dated 12.02.2024 has been issued by the Jharkhand Vidhan Sabha wherein all the members have been requested to attend the Session of house on the scheduled date, as mentioned above.
13. The contention has been made that all the sitting member of the Legislative Assembly in the current Jharkhand Vidhan Sabha has been invited, as such the petitioner has a right to participate in the Session of Assembly and hence the present application has been filed seeking an order from this Court to permit the petitioner to participate in the Session of the Assembly and participate in the proceeding from 23.02.2024 to 02.03.2024, as per the agenda enclosed.
14. It has further been stated that the current Session is for the purpose of passing of the budget, which is considered to be money bill and carries great importance, as money bills and other financial bills showcase any government's -7- future plan and policies and its importance lies in the fact that the budget determines the financial future of the State and as such depriving the petitioner from participation in the budget session would not be said to be in consonance with the constitutional mandate.
15. The ground has been taken that the money bill is considered to be most crucial bill for any legislative assembly and the said fact can easily be determined by Article 198 of the Constitution of India, which provides special procedures in respect of money bill. The money bill introduced in a legislative assembly is crucial inasmuch as the money bill put to vote amounts to a confidence vote on the government.
Argument on behalf of petitioner:
16. Mr. Kapil Sibal, learned senior counsel being assisted by Mr. Rajiv Ranjan, learned senior appearing for the petitioner [Advocate General] in order to assail the impugned order passed by learned Additional Judicial Commissioner 1st cum Special Judge, PMLA, Ranchi and further for seeking direction to permit the petitioner to participate in the Budget Session of the Legislative Assembly, has taken the following grounds:
I. The power of Court cannot be said to be limited so -8- far as the jurisdiction of the court is concerned in protecting the fundamental right as guaranteed under the Constitution of India.
II. No charge-sheet has been submitted against the petitioner and merely on the basis of ECIR, the right to participate in the Budget Session cannot be taken away otherwise, otherwise it will lead to violation of right guaranteed to the members of Legislative Assembly by the Constitution of India.
III. Learned senior counsel has taken the ground that it is not a case where the petitioner is seeking permission regarding 'right to vote' in the parliamentary or legislative election rather it is a case where the petitioner is seeking permission to participate in the budget session and in that view of the matter the implication, as referred under Section 62(2) and 62(5) of the Representation to the People Act, 1951, will not come into play.
IV. The learned senior counsel for the petitioner on the basis of said argument has tried to impress upon the Court that there is no implication/embargo in the Representation to the People Act denying the right to participate in the Session.-9-
V. Learned senior counsel in order to strengthen his argument has relied upon following judgments:
a. Ankul Chandra Pradhan, Advocate Supreme Court Vs. Union of India & Ors [(1997) 6 SCC 1].
b. People‟s Union for Civil Liberties & Anr. vs. Union of India & Anr. [(2003) 4 SCC 399] c. K. Ananda Nambiar & Anr. Vs. Chief Secretary to the Govt. of Madras & Ors. [1965 SCC OnLine 74] d. News Item "Madhepura In a Tizzy Over Pappu Visit" in the Time of India Dated 5.5.2004 in Re Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr. [(2005) 3 SCC 311] e. Mohd. Shahabuddin Vs. State of Bihar & Ors [(2007) 10 SCC 28] f. Nalin Soren Vs. State of Jharkhand [2013 SCC OnLine Jhar 1216]; and g. Anil Vasantrao Deshmukh Vs. Directorate of Enforcement & Anr. [Special Leave to Appeal (Cr.) No. 5825 of 2022].
17. Learned senior counsel for the petitioner, based upon the aforesaid submission and judicial pronouncements, has submitted that the impugned order may be quashed and -10- set aside and by way of consequential direction, the petitioner may be permitted to participate in the Budget Session of Legislative Assembly.
Pleading made in the counter affidavit:
18. The respondent-Enforcement Directorate has filed counter affidavit and vehemently opposed the prayer made by the petitioner.
19. The respondent-ED has filed counter affidavit raising the issue of maintainability of the instant petition stating that petition under Article 226 of the Constitution of India is not maintainable against the judicial order.
20. Besides, the issue of maintainability, on merit it has been stated that merely because the petitioner is not allowed to participate in the proceeding of Session of Legislative Assembly cannot be said to be infringement of fundamental right or constitutional right as no irreparable loss or injury is made out based upon the fact that the petitioner who is an M.L.A of the ruling party (Jharkhand Mukti Morcha) is having the strength of 47 votes as against 29 votes of the opposition and hence the opposition as is being shown, that due to non- participation of the petitioner for the purpose of voting in the Budget Session the same since is to be treated as the -11- Money Bill and if it will not be passed then it will amount to motion of 'No Confidence' and the government will collapse, is not avaiable in view of the fact that the ruling party to which the petitioner belongs is having 47 votes against 29 votes of the opposition. Hence, it is not a case where irreparable loss is being caused to the petitioner if he will not participate in the Budget Session.
21. Further, the ground of conduct of the petitioner has also been taken by making reference that when the petitioner was allowed to Trust Vote on 5.02.2024, had abused the indulgence granted by learned Special Court by commenting on the proceeding under PML Act with an attempt to influence the investigation and seeking to cast aspersion on the arrest which are the matter being sub- judice.
22. It has been stated that any relief, if granted, as per the prayer made in the writ petition will breach the right to equality as applied to all person in lawful custody. Argument on behalf of respondent-ED
23. Mr. S.V. Raju, learned Addl. S.G.I [Sr. Advocate] assisted by Mr. Amit Kumar Das, learned counsel appearing for the respondent-ED has taken the following grounds based upon the aforesaid pleading:
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I. On the issue of maintainability, it has been stated that the impugned order passed by the concerned Court i.e., the Court of Additional Judicial Commissioner 1st cum Special Judge, PMLA, Ranchi by refusing to grant permission to participate in the Budget Session of State Legislative Assembly has already been rejected and in that view of the matter the said order being a judicial order passed by learned Additional Judicial Commissioner 1st cum Special Judge, PMLA, Ranchi as such writ petition under Article 226 will not be maintainable rather Article 227 of the Constitution of India which has got supervisory power, will be applicable.
II. That the instant petition is not maintainable since the same has been filed under Article 226 read with Article 227 of the Constitution of India. Such contention has been made on the ground that the prayer has been made in the present petition is for issuance of writ of certiorari and once such prayer has been made the same can only be issued under the extra-ordinary jurisdiction conferred to this Court under Article 226 of Constitution of India and not under Article 227 of the Constitution of India.-13-
Thus, the present petition is misconceived and is fit to be dismissed.
III. Further, it has been submitted that whether detention is preventive or punitive it is not material rather the material is as to whether to participate in the Session is the fundamental right or having the right to speech as guaranteed under Article 19(1)(a) of the Constitution of India or it is a right to speech within the floor of Assembly, as per Article 194 of the Constitution of India. Therefore, the petitioner cannot take the ground that merely because he will not be allowed to participate in the Session then his fundamental right of speech, as guaranteed under Article 19 (1) (a) of the Constitution of India, will be infringed cannot be said to be available.
IV. The petitioner has also failed to make out a case of irreparable loss since as per the pleading made in the counter affidavit the ruling party to which the present petitioner belongs along with the alliance who have formed the government in the State is having 47 votes while in opposition it has 29 votes.
Therefore, as has been contended on behalf of petitioner, that if the petitioner will not be allowed -14- to participate in the scheduled Session then serious prejudice, said to be irreparable in nature, will be caused on the ground that the budget is to be treated as Money Bill and the same if fails will lead to 'no confidence' and in consequence thereof the government will collapse, is not at all available.
V. The ground has been taken that there is difference in between the 'permission to vote or take oath' to that of 'permission to participate in the proceeding of Session'.
VI. Further ground has been taken that the petition if
construed to be under Article 227 of the
Constitution of India then the basic principle to exercise the supervisory power as conferred under Article 227 of the Constitution of India is to interfere with the said order if there is any apparent error on the face of it but no such error has been pointed out since there is no pleading to that effect.
VII. In support of his submission, learned senior counsel for the respondent-ED has relied upon following judgments:
a. K. Ananda Nambiar & Anr. Vs. Chief Secretary to the Govt. of Madras & Ors. [1965 SCC OnLine 74] -15- b. Ankul Chandra Pradhan, Advocate Supreme Court Vs. Union of India & Ors [(1997) 6 SCC 1].
c. A.R. AnTulay Vs. R.S. Nayak and Anr [(1988) 2 SCC 602] d. Raghuraj Pratap Singh @ Raja Bhaiya vs. State of U.P.& Ors [2003 SCC OnLine All 265].
e. Suresh Kalmadi Vs. Union of India & Ors [2011 SCC OnLine 3639], Response on behalf of petitioner:
24. In response, Mr. Rajiv Ranjan, learned senior counsel for the petitioner [Advocate General] has submitted that so far objection made on behalf of the respondent-ED with respect to the maintainability of the present writ petition is concerned, under Article 226 of the Constitution of India since the order dated 22.02.2024 passed by the learned Additional Judicial Commissioner, a judicial officer, is only to be assailed under the supervisory jurisdiction as under Article 227 of the Constitution of India, it has been submitted that prayer no. 1 so far it relates to quashing of the impugned order dated 22.02.2004, is not being pressed rather only he is pressing second prayer i.e., seeking permission to participate in the Budget Session of Jharkhand Assembly -16- scheduled to be held from 23.02.2024 to 02.03.2024 in the Jharkhand Vidhan Sabha.
25. The submission in consequence of the aforesaid argument has been made that the impugned order since has not been assailed, hence the writ petition may be construed to be filed under Article 226 of the Constitution of India i.e., under extraordinary jurisdiction for the purpose of issuance of direction to permit the petitioner to participate in the Budget Session of Jharkhand Vidhan Sabha.
Reply by the respondent-ED
26. In reply to the aforesaid submission, the objection has been made by learned senior counsel for the respondent- ED that even if the said prayer will be accepted confining the prayer with respect to prayer no. ii i.e., permission to to participate in the Budget Session the same is also not fit to be granted in view of the fact that the prayer of the petitioner has already been rejected by the concerned Special Judge.
Consideration of the rival submissions:
27. This Court has heard learned counsel for the parties and considered the pleadings made in the petition, supplementary affidavit as also in the counter affidavit -17- and the finding recorded by learned court. Issue of Maintainability:
28. This Court, before adverting to the merit of the case, deems it fit and proper to decide the issue of maintainability as raised by learned senior counsel for the respondent-ED as to:
"Whether the present petition is to be construed to be considered under Article 226 or under Article 227 of the Constitution of India or under Article 226 read with Article 227 of the Constitution of India?"
29. With respect to issue on maintainability, Mr. Rajiv Ranjan, learned senior counsel appearing for the petitioner, after conclusion of argument advanced by Mr. Kapil Sibal, learned senior counsel for the petitioner who although has not submitted before this Court with respect to confining the prayer but the such prayer has been made by Mr. Rajiv Ranjan, learned senior counsel, who also happens to be the Advocate General, has confined this writ petition to only prayer no. ii.
30. Be that as it may, since Mr. Rajiv Ranjan, learned senior counsel [learned Advocate General] has submitted before this Court that the writ petition may be construed to be under Article 226 of the Constitution of India for the purpose of issuance of direction as per prayer no. 2 but -18- even then this Court needs to refer herein that why such occasion has arisen for confining the prayer by learned senior counsel for the petitioner while the issue of maintainability of the present petitioner has been raised by learned counsel for the respondent-ED.
31. Under the Constitution of India, the High Court has been conferred with the power of extraordinary original jurisdiction which power is to be exercised by the High Court under Article 226 of the Constitution of India under which the High Court is to issue five types of prerogative writs including the writ of certiorari along with the writ in case of violation of 'legal vested right'.
32. Article 227 of the Constitution of India is also under the Constitution but it does not confer the extraordinary original jurisdiction to the High Court rather under the provision of Article 227 the power of superintendence is with the Court falling within its territorial jurisdiction. Subsequently, by carving out and taking away the power from Section 115 of the Code of Civil Procedure, the supervisory power has also been conferred to the High Court to be exercised under Article 227 of the Constitution of India in an order if passed which is interlocutory in nature, which power can only be -19- exercised if there is any error on the face of order or there is lack of jurisdiction.
33. Reference in this regard be made to the judgment rendered in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 holding therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and the power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court's power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner.
34. Recently, the Hon'ble Apex Court in the case of M/s Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181, has been pleased to hold that the power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such -20- discretionary relief must be exercised to ensure there is no miscarriage of justice. For ready reference relevant paragraph 15 to 17 of the judgment reads as under:
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd. [Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97] has observed : (SCC pp. 101-102, para 6) "6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this -21- Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex parte decree -22- and therefore the submission that the appellant came to know of the ex parte decree only on release from jail on 6-5- 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he was incarcerated and could not attend the civil suit proceedings from 6-10- 2015 to 6-5-2017. If it was felt that the application for setting aside the ex parte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."
35. The issue of Article 226 and 227 of the Constitution of India fell for consideration before the Hon'ble Apex Court in the case of Surya Dev Rai vs. Ram Chander Rai [(2003) 6 SCC 675] wherein, relying upon several decisions of Hon'ble Supreme Court, the Hon'ble Apex Court has laid down scope, power and difference in Article 226 and 227. It has further been held that the first and foremost difference between the two Articles is that proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory.
36. The Hon'ble Apex Court in the case of Surya Dev Rai -23- (supra) has been pleased to conclude that under Article 226 of the Constitution, writ is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted:
(i) without jurisdiction, by assuming jurisdiction where there exists none, or
(ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or
(iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
37. The Hon'ble Supreme Court, through this judgment, brought all the subordinate judicial bodies under the ambit of Article 226 of the Constitution of India. The judgment rendered in the case of Surya Dev Rai (supra) fell for consideration before the Three Judges Division Bench of the Hon'ble Apex Court in the case of Radhey Shyam & Another vs. Chhabi Nath & Ors. [(2015) 5 SCC 423] in order to consider the correctness of law laid down therein wherein the view taken by the Hon'ble Apex Court in the case of Surya Devi (supra) has been reversed to the extent that the order passed by the judicial officer will only be amenable under Article 227 of the Constitution of India under its supervisory jurisdiction. So far as it is to be exercised under Article 226 of the -24- Constitution of India is only for the purpose of issuance of privilege writ.
38. Coming back to the facts of present case regarding the issue of maintainability since Mr. Rajiv Ranjan, learned senior counsel [Advocate General] is not in dispute with respect to aforesaid proposition of law rather he has confined his prayer by admitting the ratio laid down by Hon'ble Apex Court in the case of Radhey Shyam & Another vs. Chhabi Nath & Ors.(supra) has confined his prayer with respect to prayer no. II only, hence this Court is proceeding to examine the right of the petitioner so far as prayer no. 2 is concerned which pertains to grant of permission to participate in the Budget Session of the Jharkhand Vidhan Sabha.
39. Here it needs to refer herein as per the objection made by Mr. S.V. Raju, [learned senior counsel] learned Addl. S.G.I appearing for the respondent-ED that the order impugned is operative against the petitioner whether the prayer of the petitioner has been refused to participate in the Budget Session.
40. This Court, so far as this issue is concerned, after going through the impugned order that the learned AJC 1 st cum-Special Judge has not gone into the merit of the -25- issue rather the claim has been rejected on the ground that the relief taking into consideration the nature of prayer is only to be granted by the Constitutional Court but the same having not been decided on the merit as such this Court is of the view that when the prayer made in this writ petition is being confined to prayer no. II seeking permission to the petitioner to participate in the Budget Session, which is to be considered by this Court under its extraordinary original jurisdiction hence such objection as raised by respondent-ED is hereby found to be not any substance.
41. Accordingly, the instant petition is maintainable and to be heard on merit so far prayer no. II is concerned. Analysis of case on Merit:
42. The reason for considering the issue on merit is the essence of time, since it has been submitted at Bar by Mr. Rajiv Ranjan, learned senior counsel [Advocate General] appearing for the petitioner that 29.02.2024, 01.03.2024 and 02.03.2024 are the probable date for voting on the Money Bill, hence, this Court deems it fit and proper to decide the issue on merit taking into consideration the second prayer made in the writ petition.
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43. The prayer no. II is seeking for a direction to the effect that 'granting permission to the petitioner to participate in the Budget Session scheduled to be held from 23.02.2024 up to 02.03.2024 in the Jharkhand Vidhan Sabha.‟
44. The rival submission has been made in this regard on behalf of both the sides.
45. Learned senior counsel for the petitioner on the one hand has tried to impress upon the Court that due to non- participation of the petitioner the money bill if not passed in the Budget session, the same will amount to 'no confidence' and consequence would be collapse of government. Further ground has been taken that since the writ petitioner is the member of the ruling alliance being member of Jharkhand Mukti Morcha and as such he needs to participate in the Budget Session.
46. Learned senior counsel has further taken the ground that it is not a case where the petitioner is seeking permission regarding 'right to vote' in the parliamentary or legislative election rather it is a case where the petitioner is seeking permission to participate in the budget session and in that view of the matter the implication, as referred under Section 62(2) and 62(5) of the Representation to the People Act, 1951, will not come into play. -27-
47. While on the other hand, learned senior counsel for the respondent-ED has raised serious objection by taking the ground of having no irreparable loss said to be irreversible if the petitioner will not participate in the budget session, even accepting that in the budget session money bill would be passed, reason of which has been explained at paragraph 10 of the counter affidavit wherein it has been averred that the number of votes having with the alliance party, who is in the government, are 47 while in opposition it is 29. Therefore, if one member [petitioner] will not participate in the budget session there is no question of collapse of government. In that view of the matter, the loss will not be said to be irreversible loss.
48. Ground has also been taken that the aforesaid position of number of votes has purposely not been pleaded in the writ petition. However, the same has been brought on record by the respondent-ED by way of filing counter affidavit.
49. Further ground has been taken by taking into consideration the conduct of the petitioner at paragraph 15 of the counter affidavit.
50. This Court has considered the rival submissions -28- advanced on behalf of parties and now proceeding to examine the issue as to whether the direction, as has been sought for by the petitioner, to allow him to participate in the budget session, can be allowed?
51. This Court, in order to answer the aforesaid issue, requires to answer the following inter-linked issues, which are as under:
I. Whether Article 105 or 194 of the Constitution of India is said to be under the fold of fundamental right or merely a right to speech in the parliament or the state assembly? or, II. Whether non-participation of a member of legislative assembly in the floor will amount to infringement to Article 19(1) (a) of the Constitution of India, which is under Part III thereof is fundamental right to speech?
III. Whether the petitioner, being a Member of State Legislative Assembly in the State of Jharkhand and in a situation where a serious allegation of laundering of public money has been leveled against him, in which he has been taken into custody by Enforcement of Directorate after the valid order of remand, can it be just and proper to pass a direction to grant permission to participate in a proceeding the same to be legal vested right?-29-
IV. Whether in the facts and circumstances of the case, the non-participation of the petitioner in the on-
going session can be construed to be irreparable loss, due to non-participation of the petitioner in the assembly session?
V. Whether there is difference in between „right to vote‟ or „right to take oath‟ or „right to participate in Session‟ of the parliament or the state assembly‟?
VI. Whether the judgment rendered by Hon‟ble Supreme Court K. Anand Nambiar (supra) is only with respect to punitive detention or preventive detention; and further the judgment upon which reliance has been placed i.e., the judgment of Nalin Soren (supra) and Anit Vasantrao Deshmukh (supra) is applicable in the facts of the case?
VII. Whether the implication as referred under Section 62(2) and 62(5) of the Representation to People Act, will not come into play in the facts and circumstances of the present case?
VIII. Whether any speech given in the floor by the petitioner, which was alleged to be misconduct, can be looked into by the High Court in consideration of grant of permission to participate in the Session?
52. But before that it is relevant to refer herein the provision of Article 19(1)(a) of the Constitution; Article 105 so far it -30- relates to the right to speech in the floor of the parliament and Article 194 of the Constitution of India which pertains to right to speech to be made in the floor of assembly.
53. For ready reference, Article 19(1) (a), 105 and 194 of the Constitution of India is quoted hereunder as:
"19. Protection of certain rights regarding freedom of speech, etc.-- (1) All citizens shall have the right-- (a) to freedom of speech and expression;
105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof.--(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings. 1 [(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, 2 [shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.]].
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.-31-
194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof.--(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. 1 [(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, 2 [shall be those of that House and of its members and committees immediately before the coming into force of section 26 of the Constitution (Forty-fourth Amendment) Act, 1978]. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature."
54. It is evident from the provision of Article 19(1) (a) of the constitution of India, which is under Part III thereof. it is fundamental right to speech. The Article 105 or 194 is also right to speech but it is not under part III said to be under the fold of fundamental right to speech rather the same is the right to speech in the floor of the parliament or the state legislative assembly, as the case may be. -32-
55. The right to speech as per Section 19(1)(a) of the Constitution of India or under Article 105 or Article 194 is distinct to each other. Article 19(1)(a) being a fundamental right confers freedom to speech while 105 or Article 194 of the Constitution of India provides the freedom to speech and the immunities of the speech which to be made on the floor of parliament or legislative assembly, as the case may be.
56. The distinction has been carved out by Hon'ble Apex Court in the provision of Article 19(1)(a) and 105 and 194 of the Constitution of India in the case of Pandit M.S.M. Sharma vs Shri Sri Krishna Sinha & Ors. AIR 1959 SC 395, wherein at paragraph 25 the distinction has been carved out in between these two constitutional mandates.
57. For ready reference, paragraph 25 of the said judgment is referred herein:
"25. Article 194 has already been quoted in extenso. It is quite clear that the subject-matter of each of its four clauses is different. Clause (1) confers on the members freedom of speech in the legislature, subject, of course, to certain provisions therein referred to. Clause (2) gives immunity to the members or any person authorised by the House to publish any report etc. from legal proceedings. Clause (3) confers certain powers, privileges and immunities on the House of the Legislature of a State and on the members and the committees thereof and finally clause (4) extends the provisions of clauses -33- (1) to (3) to persons who are not members of the House, but who, by virtue of the Constitution, have the right to speak and otherwise to take part in the proceedings of the House or any committee thereof. In the second place, the fact that clause (1) has been expressly made subject to the provisions of the Constitution but clauses (2) to (4) have not been stated to be so subject indicates that the Constitution-makers did not intend clauses (2) to (4) to be subject to the provisions of the Constitution. If the Constitution-makers wanted that the provisions of all the clauses should be subject to the provisions of the Constitution, then the Article would have been drafted in a different way, namely, it would have started with the words:"Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of the Legislature --" and then the subject-matter of the four clauses would have been set out as sub-clause (i), (ii), (iii) and
(iv) so as to indicate that the overriding provisions of the opening words qualified each of the sub-clauses. In the third place, it may well be argued that the words "regulating the procedure of the Legislature" occurring in clause (1) of Article 194 should be read as governing both "the provisions of the Constitution" and "the rules and standing orders". So read freedom of speech in the Legislature becomes subject to the provisions of the Constitution regulating the procedure of the legislature, that is to say, subject to the Articles relating to procedure in Part VI including Articles 208 and 211, just as freedom of speech in Parliament under Article 105(1), on a similar construction, will become subject to the articles relating to procedure in Part V including Articles 118 and 121. The argument that the whole of Article 194 is subject to Article 19(1)(a) overlooks the provisions of clause (2) of article 194.
The right conferred on a citizen under Article 19(1)(a) can be restricted by law which falls within clause (2) of that article and he may be made liable in a court of law for breach of such law, but clause (2) of Article 194 categorically lays down that no member of the Legislature is to be made liable to any -34- proceedings in any court in respect of anything said or any vote given by him in the Legislature or in committees thereof and that no person will be liable in respect of the publication by or under the authority of the House of such a Legislature of any report, paper or proceedings. The provisions of clause (2) of Article 194, therefore, indicate that the freedom of speech referred to in clause (1) is different from the freedom of speech and expression guaranteed under Article 19(1)(a) and cannot be cut down in any way by any law contemplated by clause (2) of Article 19."
58. The power, privilege and immunities of the State legislature has further been discussed by Hon'ble Apex Court in the case of Powers, Privileges and Immunities of State Legislature, Re V. Special Reference No. 1 of 1964 [AIR 1965 SC 745] where the question arose regarding power, privilege and immunities of the State legislature and its members. Emphasis was laid on the concept of freedom of speech in the legislative assembly. Their Lordships, interpreting Article 194(1), ruled that had the legislators been entitled only to freedom of speech and expression as enshrined under Article 19(1)(a), conferment of the same right in the manner adopted by Article 194(1) would have been unnecessary and, therefore, concluded that Article 19(1)(a) was not one of the provisions of the Constitution which controlled the first part of clause (1) of Article 194.
59. It was further held that it was due to the importance -35- attached to the necessity of absolute freedom in debates within the legislative chambers by the Constitution- makers that they thought it necessary to confer complete immunity on the legislators from any action in any court in respect of their speech including votes in the legislative chambers in the wide terms prescribed by clause (2).
60. Thus, clause (1) confers freedom of speech on legislators within the legislative chamber and the same was made literally absolute and unfettered by virtue of clause (2).
61. Again in the case of P.V. Narasimha Rao Vs. State (CBI/SPE) [(1998) 4 SCC 626] the same has been taken into consideration as under paragraph 27, which reads as under:
"27. Clause (1) secures freedom of speech in Parliament to its Members. The said freedom is "subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament". The words "subject to the provisions of this Constitution" have been construed to mean subject to the provisions of the Constitution which regulate the procedure of Parliament, viz., Articles 118 and 121. (See: M.S.M. Sharma v. Sri Krishna Sinha [AIR 1959 SC 395 :
1959 Supp (1) SCR 806] SCR at p. 856 and Special Reference No. 1 of 1964 [AIR 1965 SC 745 : (1965) 1 SCR 413 (also known as Keshav Singh case)] also known as the Legislative Privileges case [AIR 1965 SC 745 : (1965) 1 SCR 413 (also known as Keshav Singh case)] SCR at p. 441.) The freedom of speech that is available to Members of Parliament under Article 105(1) is wider in amplitude than the right to freedom of speech and expression guaranteed under Article 19(1)(a) -36- since the freedom of speech under Article 105(1) is not subject to the limitations contained in Article 19(2).
62. The purpose of referring the distinction in between Article 19(1)(a) and 105 and 194 is to consider the fact as to whether seeking participation in the Budget Session can be said to a fundamental right.
63. Since the 'right to speech' as guaranteed under Article 19(1)(a) of the Constitution of India has been held to be distinct over Article 105 and 194 of the Constitution of India, therefore, merely because one or the other Member of Parliament or Member of State Legislative Assembly is not being allowed to participate in the proceeding due to the valid detention after valid order of remand the same cannot be construed to be in violation of Article 19(1)(a) of the Constitution of India.
64. Further Article 105 or article 194 will also not be applicable in view of the fact that the same deals with the immunity from liability under any proceeding of any Court based upon the speech given by the concerned Member in parliament or any committee or the legislative assembly. Therefore, the participation in the assembly in view of the fact that the same is not under the fold of Section 19(1)(a) or under article 105 or 194 of the Constitution of India reason being that the occasion to -37- have immunity will only come if one or the other member of parliament or state legislative assembly will participate in the meeting of floor and by virtue of speech given therein he is to claim immunity under the said provision.
65. But even admitting the fact that neither the petitioner has got fundamental right to participate in the proceeding of the Session nor any constitutional right even then the petitioner since is a Member of State Legislative Assembly in the State of Jharkhand in view thereof in a situation where a serious allegation of laundering of public money has been leveled in which the petitioner has been taken into custody by Enforcement of Directorate after the valid order of remand can it be just and proper to pass a direction to participate in the proceedings the same to be legal vested right, which is also to be looked into by the Court exercising the power conferred under Article 226 of the Constitution of India leaving apart the fundamental right as referred under part III of the Constitution of India.
66. The 'legal vested right‟ has been defined so many times by the Hon'ble Apex Court. The vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested -38- right can arise from contract, statute or by operation of law.
67. In this regard, it would be relevant to mention the meaning of vested/accrued right, as has been discussed by Hon'ble Apex Court in MGB Gramin Bank Vs. Chakrawarti Singh [(2014) 13 SCC 583] at paragraph 11, 12 and 13, which read under as:
"11. The word "vested" is defined in Black's Law Dictionary (6th Edn.) at p. 1563, as:
"Vested.--fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are „vested‟ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute „vested rights‟."
12.In Webster's Comprehensive Dictionary (International Edition) at p. 1397, "vested" is defined as law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest.
13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed."
68. It is evident from the interpretation of phrase 'legal vested right' that the same is only to be construed to be followed if the petitioner has got any right to participate in the -39- proceeding. The same can be said to be available in a case where no legal proceeding is pending then certainly in the capacity of people's representative such member of the State Legislative assembly, who has been elected, to present himself on behalf of the citizen of the constituency and in such circumstance it can be said to be vested legal right.
69. But the same is to be considered in a different angle if such Member of Parliament of Member of State Legislative Assembly has been taken into judicial custody by virtue of valid order of remand. Admitted position herein is that order of remand has not been challenged and after the valid order of remand the petitioner is languishing in judicial custody on the basis of allegation of laundering of the public money by making out a case as per the ECIR under the provisions of PML Act, 2002. In such circumstances, it cannot be said that any legal vested right has accrued to the petitioner to participate in the proceeding of the floor.
70. So far as the issue of irreparable loss, due to non-
participation of the petitioner in the assembly session, is concerned, circumstances of irreparable loss will be said to be there if the voting strength of the ruling and -40- opposing party are neck to neck, then in such cases probability is there of non-passing of the budget leading to loss of confidence in government which will have adverse impact across the State.
71. The principle will be otherwise if such situation is available and in that circumstances if the petitioner will not be allowed to participate and in consequence thereof if the government falls then loss will be said to be 'irreversible'.
72. The word 'irreversible' has been taken note of by the Hon'ble Apex Court in the case of Kihoto Hollohan V Zachillhu & Ors [1992 Supp (2) SCC 651] wherein in the matter of order interlocutory in nature exception has been carved out to be looked into by the Court that the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.
73. For ready reference, paragraph 110 and 111 of the judgment is quoted as under:
"110. In view of the limited scope of judicial review that is available on account of the finality clause in Paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a -41- stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.
111. In the result, we hold on contentions (E) and (F):
That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power.
That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned. That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case [(1965) 1 SCR 413 : AIR 1965 SC 745] to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words „be deemed to be proceedings in Parliament‟ or „proceedings in the legislature of a State‟ confines the scope of the fiction accordingly. The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth -42- Schedule and their decisions in that capacity are amenable to judicial review.
However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence."
74. The word 'irreversible' is having bearing herein reason being that if the situation is so that the loss caused will be irreversible then it will come into the fold of irreparable loss and the same was the interpretation made by Hon'ble Apex Court in paragraph 110 and 111 of the judgment referred in Kihoto Hollohan V Zachillhu & Ors (supra) wherein it has been held that the power of judicial review is to be exercised after the final decision is taken by speaker and if the order is found to be in violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, as would appear from proposition of law laid down at paragraph 111 of the said judgment that there is no complete embargo in exercising the power of judicial review even in the interlocutory stage rather the same can be exercised if the cases of interlocutory -43- disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence. In the aforesaid proposition the word 'irreversible' and 'consequence' are of paramount consideration as if the membership of the writ petitioner will be cancelled by declaring him disqualified in exercise of power conferred to the speaker the same would have irreversible repercussion.
75. Applying the said proposition of law in the facts of the case that as has been referred hereinabove that the loss will be said to be irreversible if the voting members of the ruling party and the opposition are neck to neck; meaning thereby for example if the number of member of legislative assembly are 40 and 39 and near about then in such situation non-participation of a member in the floor at the time when budget is to be passed will have the repercussion and in that circumstances due to non- participation of single member is the Session will be said to leading of non-passing of the money bill and in that situation there is likelihood of the collapse of the government which only will be said to come under the fold of 'irreversible loss' having not been compensated and said to come under the fold of 'irreparable loss'. -44-
76. But that is not the situation herein, which is evident from the statement made by Enforcement Directorate at paragraph 10 of the counter affidavit that the member of legislative assembly in the ruling side is 47 and in opposition is 29 as per trust voting dated 05.02.2024.
77. For ready reference the paragraph 10 of the counter affidavit is quote as under:
"10.No case of irreparable injury or irreversible damage is made out by the petitioner for the reason that when the petitioner had participated in the trust vote when he was taken in custody on 05.02.2024 the political party of which the petitioner is a member had secured 47 votes as against 29 votes by the opposition which clearly makes out that his absence or presence would make no difference to the ultimate outcome of the voting under money bill. Therefore, the argument that the voting in money bill amounts to confidence vote on the govt, therefore his presence is indispensable, is without substance and no case for irreparable injury is made out. In these circumstances if one member of the legislative assembly i.e, the petitioner herein will not participate it cannot be said to be a loss irreparable casing irreparable loss to be petitioner or its party."
78. On the basis of discussion made hereinabove, this Court is of the view that no irreparable loss will be caused to the petitioner due to non-participation in the on-going assembly session.
79. So far the issue of difference in between 'right to vote' or 'right to take oath' or 'right to participate in Session' of the parliament or the state assembly' is concerned, -45- admittedly, the 'right to vote' or 'right to take oath' or 'right to participate is the on-going Session in the parliament or the state assembly' are the valuable right. Therefore, the parameters which is to be looked into with respect to issue of 'right to vote' and 'right to contest' is on different parameters to that of right to participate in the session'.
80. It could be understood that right to vote, right to take oath can be said to be a valuable right but so far as right to participate in the Budget Session in a case of punitive detention is concerned, it cannot be said to be a right under the fold of vested right, as per the judgment rendered by Hon'ble Delhi High Court in the case of Suresh Kalmadi case wherein the Hon'ble Delhi High Court has taken note of the judgment as rendered by Hon'ble Apex Court in the case of K. Ananda Nambiar & Anr. Vs. Chief Secretary to the Govt. of Madras & Ors. (supra).
81. But so far as parameter which is to be applied either in the case of 'right to vote or 'right to take oath' the same being mandatory in nature in view of valuable right hence, in such cases the Court can pass appropriate order allowing such member of Parliament or Assembly, -46- as the case may be, to participate in the Session for the purpose to vote or take oath but the rights so far as to participate in the Session is to be considered is on different parameters and if such member of Parliament or Legislative Assembly is languishing in judicial custody on the basis of valid order of remand passed by the competent Court of criminal jurisdiction then the right to participate in the Session cannot be allowed to be passed taking into consideration the law laid down by Hon'ble Apex Court in the case of K. Ananda Nambiar & Anr. Vs. Chief Secretary to the Govt. of Madras & Ors (supra).
82. The aforesaid issue requires consideration since the learned senior counsel appearing for the petitioner has relied upon the judgment rendered by Hon'ble Apex Court in the case of Nalin Soren Vs. State of Jharkhand [supra] and Anil Vasantrao Deshmukh Vs. Directorate of Enforcement & Anr. (supra), which were the case where the permission was allowed to participate in the vote of confidence.
83. Learned senior counsel appearing for the petitioner has relied upon the judgment rendered in the case of Nalin Soren Vs. State of Jharkhand Jharkhand [2013 SCC -47- OnLine Jhar 1216], which has been passed in consequence of the order passed by Hon'ble Apex Court in Special Leave to Appeal (Crl) No. 5859 of 2013, wherein the said Nalin Soren was allowed to participate but as would appear from the aforesaid order the same was the permission to participate in the vote of confidence.
84. For ready reference, the judgment passed by Hon'ble Apex Court in the case of Nalin Soren (supra), is quoted as under:
"This matter was mentioned in the morning by Vivek Tankha, learned senior counsel on behalf of a Mr. sitting M.L.A. of Jharkhand Legislative Assembly, Mr. Nalin Soren, against whom certain criminal proceedings appear to have been taken. Mr. Tankha had submitted that a Vote of Confidence is to be taken in the Assembly today in Ranchi at 2.00 p.m. and that the petitioner, if arrested, will be prevented from casting his vote in the Confidence Motion.
We had, therefore, requested either Mr. Atul Jha or Mr. Tapesh Singh, learned Advocates, to be present when the matter was taken up. Pursuant thereto, Mr. Tapesh Singh is present when the matter is taken up.
Having regard to the urgency, we dispose of the matter by directing that the petitioner may surrender LO the police authorities forthwith and if he is taken into custody, he shall be escorted to the Assembly in custody for the purpose of participating in the proceedings in the Assembly. Thereafter, the petitioner will remain in custody and may proceed to take other steps, as he may be advised.
The special leave petition which is directed against the order dated 17th July, 2013, passed in I.A. No.4908 of 2013 in Writ -48- Petition (Crl.) No.103 of 2012, passed by the Jharkhand High Court, is disposed of accordingly.
Let a copy of this order be made available immediately to learned counsel for both the parties, who will ensure that it is communicated to the Speaker of the Assembly immediately."
85. Likewise, order passed by the Hon'ble Apex Court in the case of Anil Vasantrao Deshmukh Vs. Directorate of Enforcement & Anr. passed in Special Leave to Appeal (Crl.) 5825 of 2022, the same is also with respect to seeking permission to participate in the proceedings of the floor test to be conducted in the Special Session of the State Legislation.
86. For ready reference, the said judgment passed in Anil Vasantrao Deshmukh Vs. Directorate of Enforcement & Anr (supra) is quoted as under:
"Having heard the learned senior counsel for the applicants-petitioners and Shri Tushar Mehta, the learned Solicitor General appearing on behalf of the respondents. we allow the applicants-petitioners to participate in the proceedings of the floor test to be conducted in the Special Session of the State Legislation of the Maharashtra Vidhan Sabha scheduled to be held tomorrow i.e. 30th June, 2022 at 11.00 A.M. Since the applicants-petitioners are presently in judicial custody pursuant to the cases registered against them by the Enforcement Directorate and the Central Bureau of Investigation respectively, both the agencies are directed to escort the applicants to the Vidhan Sabha Hall and once the proceedings are over, the applicants shall be brought back to the jail and taken in the judicial custody.-49-
Shri Chitnis, the learned counsel appearing for the State of Maharashtra undertakes to inform the concerned jail authorities for compliance of the instant order. Interlocutory applications are disposed of in above terms. Therefore, the reliance has been put by learned counsel for the petitioner in both the cases i.e., Nalin Soren Vs. State of Jharkhand Jharkhand (supra) and Anil Vasantrao Deshmukh Vs. Directorate of Enforcement & Anr (supra) is not applicable in the facts of the present case."
87. But herein the case of the petitioner is not for participation in the floor test rather it is for the participation in budget session.
88. The issue of participation in the parliament or the state assembly has also elaborately been discussed by Hon'ble Apex Court in the case of K. Ananda Nambiar & Anr. Vs. Chief Secretary to the Govt. of Madras & Ors (supra). The same needs to be refer herein in order to consider the submission made on behalf of Mr. Kapil Sibal, learned senior counsel appearing for the petitioner that the K. Ananda Nambiar case is only to be applied in the case of preventive detention but that is not the proposition as laid down, as would be evident from paragraph 18, wherein it has been laid down that the parameter which is to be followed in a case of conviction and sentence inflicted will also be applicable if a person has been detained by forgoing his right in the business of legislature.
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89. For ready reference, paragraph 18 of the judgment is quoted hereinbelow:
"There is another aspect of this problem to which we would like to refer at this stage. Mr Setalvad has urged that a Member of Parliament is entitled to exercise all his constitutional rights as such Member, unless he is disqualified and for the relevant disqualifications, he has referred to the provisions of Article 102 of the Constitution and Section 7 of the Representation of the People Act. Let us take a case falling under Section 7(b) of this Act. It will be recalled that Section 7(b) provides that if a person is convicted of any offence and sentenced to imprisonment for not less than two years, he would be disqualified for membership, unless a period of five years, or such less period as the Election Commission may allow in any particular case, has elapsed since his release. If a person is convicted of an offence and sentenced to less than two years, clearly such conviction and sentence would not entail disqualification. Can it be said that a person who has been convicted of an offence and sentenced to suffer imprisonment for less than two years, is entitled to claim that notwithstanding the said order of conviction and sentenced, he should be permitted to exercise his right as a legislator, because his conviction and sentence do not involve disqualification? It is true that the conviction of a person at the end of a trial is different from the detention of a person without a trial; but so far as their impact on the alleged constitutional rights of the Members of Parliament is concerned, there can be no distinction. If a person who is convicted and sentenced, has necessarily to forego his right of participating in the business of the legislature to which he belongs, because he is convicted and sentence, it would follow that a person who is detained must likewise forego his right to participate in the business of the legislature. Therefore, the argument that so long as the Member of Parliament has not incurred any disqualification, he is entitled to exercise his -51- rights as such Member, cannot be accepted."
90. It is, thus, evident that the Hon'ble Apex Court in the case of K. Ananda Nambiar & Anr. Vs. Chief Secretary to the Govt. of Madras & Ors (supra) has laid down the proposition that there may be no distinction in between the case of the person, who has been convicted at the end of trial with the person who has been detained without the trial, so far their impact on their alleged constitutional rights of the Member of Parliament or Assembly is concerned.
91. Thus, it can safely be said that the person who is detained on the basis of valid order of custody will also have to forgo his right of participation in the business of the legislature.
92. It is pertinent to mention here that in the case of Raghu Raj Pratap Singh alias Raja Bhaiya v. State of UP, [2003 SCC OnLine All 265], a Division Bench of the High Court of Allahabad (Lucknow Bench) declined the permission by stating that the rights and obligations under Article 194 of the Constitution of India being referred to by the learned counsel for the petitioners were the rights and privileges inside the House and, if they were detained by a valid order, it was implied that they cannot enjoy those privileges and rights so long as they -52- were under detention. It was further held that the right to vote, right to contest election of the Assembly or Parliament or right to take oath as a Legislator or a Parliamentarian were different rights and do not particularly help the case of the petitioners.
93. Further, in the case of Suresh Kalmadi Vs. Union of India & Ors [2011 SCC OnLine 3639], the Division Bench of Hon'ble Delhi High Court has also dealt with the right to participate in the parliament or the legislature as also implication of Article 19 (1)(a), 105 (1) and 194 of the Constitution of India.
94. In the aforesaid judgment the reliance has been placed of the judgment rendered in the case of K. Ananda Nambiar & Anr. Vs. Chief Secretary to the Govt. of Madras & Ors (supra), Tej Kiran Jain V. Sanjiva Reddy [(1970) 2 SCC 270] and P.V. Narsimha Rao Vs State (CBI/SPE) [(1998) 4 SCC 626] (supra).
95. The Hon'ble Delhi High Court has also taken note of the judgment passed by Jharkhand High Court in the case of Kameshwar Baitha Vs. State of Jharkhand [Writ Petition (Criminal) No. 427 of 2009] passed on 04.12.2009 wherein the permission to the petitioner to attend the parliament was declined.
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96. The Hon'ble Delhi High Court however has considered the judgment passed by Constitution Bench of Hon'ble Apex Court in the case of K. Ananda Nambiar & Anr. Vs. Chief Secretary to the Govt. of Madras & Ors (supra) and in addition thereto the judgments of different High Courts has also been considered, as would be evident from paragraph 28 and 29 of the judgment wherein the Hon'ble Delhi High Court after discussing all the judgments and the constitutional mandate has been pleased to hold at paragraph 29 that if the order of detention is validly passed and this prevents a member from attending a session of the Parliament, no occasion arises to exercise of the right to freedom of speech and no complaint can be made that the said right has been invalidly invaded.
97. For ready reference, paragraph 28 and 29 of the judgment, is quoted as under:
"28. The submission of Mr. Desai is that when the appellant is an accused and the innocence of an accused is recognized in law, he is not debarred or disqualified to attend the Parliament. There is a subtle distinction between disqualifications for membership and grant of permission to attend the proceedings in a parliamentary session. Once a person is disqualified, he cannot participate or attend the parliamentary sessions. The Court at that juncture has no discretion whatsoever. As has been evincible form the case of Rajesh Ranjan (supra), the Apex Court exercised the -54- discretion and granted permission to take oath. Thus, the discretion is exercisable in certain circumstances to permit an accused to attend the parliamentary session but, a significant one, no discretion is left when someone is convicted as he is disqualified.
29.Thus, the hub of the matter is whether this Court, in exercise of the power under Article 226 of the Constitution of India, should grant permission to the appellant to attend the parliamentary session. The appellant has been involved in offences by which loss to the Government to the tune of Rs. 95 Crores is alleged to have been caused. His detention is in respect of the offences which are quite grave in nature. He has not been admitted to bail because of the nature of the offences. He does not have a right under the Constitution to claim that inspite of being in custody, he has to be allowed to attend the Parliament. In the case of K. Ananda Nambiar v. Chief Secretary to the Government of Madras, AIR 1966 SC 657, it has been clearly held that if the order of detention is validly passed and this prevents a member from attending a session of the Parliament, no occasion arises for exercise of the right to freedom of speech and no complaint can be made that the said right has been invalidly invaded. We must fairly state that Mr. Desai has not really founded his case on the basis of any constitutional or statutory right but on the basis of the conception that the participation becomes imperative as a constitutional obligation is cast regard being had to the spectrum of parliamentary democracy which is one of the basic features of the Constitution of India. As has been stated earlier, in the case at hand, the arrest and incarceration is valid in law and the appellant has not been enlarged on bail. True it is, in the case of K. Ananda Nambiar (supra), the Apex Court was dealing with preventive detention but the present case relates to arrest and custody. When the appellant's custody is valid and the allegations are of great magnitude, it would be totally inappropriate to exercise the discretion under Article 226 of the Constitution of -55- India to grant him the permission to attend the parliamentary session solely on the foundation that he has the freedom of speech inside the Parliament or on the foundation that he enjoys exclusive privilege in the Parliament as its Member or on the substratum that he has to participate in the proceedings to meet the Constitutional obligation. In our considered opinion, though the submission as regards the constitutional obligation has been extremely adroitly edificed, yet the same has to founder inasmuch as grant of permission in the present case to attend the parliamentary session would be an anathema to the exercise of power under judicial review that is inherent under Article 226 of the Constitution of India."
98. Thus, it is evident from the aforesaid judgment that when the appellant's custody is valid and the allegations are of great magnitude, it would be totally inappropriate to exercise the discretion under Article 226 of the Constitution of India to grant him the permission to attend the assembly session solely on the foundation that he has the freedom of speech inside the assembly or on the foundation that he enjoys exclusive privilege in the assembly as its Member or on the substratum that he has to participate in the proceedings to meet the Constitutional obligation.
99. From the discussions made hereinabove it is evident that the right to vote, right to contest election of the Assembly or Parliament or right to take oath as a Legislator or a Parliamentarian are different rights and do not -56- particularly help the case of the petitioner.
100. So far argument advanced on behalf of the petitioner by putting reliance upon the provision of Section 62(2) and 62(5) of the Representation of People Act is concerned, there is no dispute about the fact that the said provision speaks with respect to the prohibition of one or the other if in casting vote or in contesting election in case of judgment of conviction and the reliance on that respect having been placed in the case of Ankul Chandra Pradhan Vs. Union of India (supra) is concerned, this Court is of the view that this Court is conscious of the fact that it is not a case of conviction and hence there is no question of applicability of Section 62(2) and 62(5) of the Representation of Peoples Act.
101. The learned senior counsel has tried to impress upon the court by referring these provisions for the reason that he right to cast vote or to contest election is only to be prohibited as per the provision of Section 62(2) and 62(5) of the Representation of People Act.
102. But according to considered view of this Court since the petitioner has already been an elected member and hence at the moment we are not dealing with his disqualification either to cast vote in the election or -57- considering his right to contest the election.
103. Therefore, it is not a case of consideration of applicability of Section 62(2) and 62(5) of the Representation of People Act.
104. Accordingly, Issue Nos. I to VII are hereby answered.
105. The issue of conduct of the petitioner has also been raised on behalf of respondent-ED as would appear from paragraph 15 of the counter affidavit, which reads as under:
"15. Conduct of the petitioner - The petitioner herein, when he was taken in custody to the assembly for the trust vote on 05.02.2024, had abused the indulgence granted by the Learned Special Court, by commenting on the proceedings under the PMLA with an attempt to influence the investigation and seeking to cast aspersions on the arrest which are matters which are sub-judice. Therefore, the prayer for permission to the petitioner to participate in the budget session is being made in the garb of the voting on the money bill but the real object appears to be to cast aspersions the on investigation being conducted by the Enforcement Directorate as well as an attempt to influence witnesses as well as to prejudice the proceedings pending before this court in relation to his arrest. It is submitted that the same in fact amounts to contempt of the Court as per the law laid down by the Hon'ble Supreme Court in In Re P.C. Sen, (1969) 2 SCR 649, wherein it was held as under:
"8. The law relating to contempt of Court is well settled. Any act done or writing published which is calculated to bring a court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the Court, is a contempt of Court; R.V. Gray (1900 2 QBD 36 at p 40]. Contempt by speech or writing may be by -58- scandalising the Court itself, or by abusing parties to actions, or by prejudicing mankind in favour of or against a party before the cause is heard. It is incumbent upon Courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving reflections on parties to a proceeding amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere, with the due course of justice. The question is not So much of the intention of the contemner as whether it is calculated to interfere with the administration of justice. As observed by the Judicial Committee in Devi Prasad Sharma v. King-Emperor [LR 70 I.A. 216 at p 224]:
"...the test applied by the which heard the Board reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of the law."
106. This Court considering the fact that the privilege is there under Article 194 of the Constitution of India wherein it has been stipulated that no member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and as such this -59- Court is of the view that issue of conduct of the petitioner on the ground of alleged speech made in the floor is not fit to be looked into by this Court, since the alleged speech has been made in the floor therefore, this Court is not making comment upon the same.
107. Accordingly, Issue No. VIII is answered.
108. This Court, after deciding the issues, as answered above, is of the view that it is not a fit case to grant permission to the petitioner to participate in the ongoing Budget Session in the Jharkhand Vidhan Sabha.
109. Accordingly, the instant writ petition lacks merit and as such the same is hereby dismissed.
110. Before parting with the order, it is made clear that any observation(s) made in the order is only in the context of refusal of participation in the Budget Session.
(Sujit Narayan Prasad, J.) Alankar/-
A.F.R