Punjab-Haryana High Court
Ram Kumar Chaudhary vs State Of Haryana on 30 January, 2014
Author: M.M.S.Bedi
Bench: M.M.S.Bedi
CRM-M-3814-2014 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-3814-2014 (O&M).
Decided on: January 31, 2014.
Ram Kumar Chaudhary
.. Petitioner
VERSUS
State of Haryana
.. Respondent
***
CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI
***
PRESENT Mr.P.S.Ahluwalia, Advocate,
for the petitioner.
M.M.S. BEDI, J. (ORAL)
Petitioner is an elected member of Legislative Assembly from Doon Constituency, Himachal Pradesh and is presently in custody in a case of murder of one Jyoti with whom he had illicit relations.
The application for regular bail was dismissed by this Court on 22.1.2014. He has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C., that he having been in custody since 8.1.2013 was compelled to absent himself from the four sessions of Himachal Pradesh Legislative Assembly . 5th session of assembly is to be convened from 3.2.2014 to 4.2.2014 as per the provisional calendar of its Session, Annexure P4. Placing reliance on the provisions of Articles 190 (4) and 194 (2) of the Constitution of India, it has been argued that on account of absence for more than 60 days without permission of the House, the House may declare the Raj Kumar Arora 1 2014.02.03 17:33 I attest to the accuracy and integrity of this document CRM-M-3814-2014 (O&M) seat of the Legislature as vacant.
It is claimed that the petitioner will be deprived of the privilege of immunity provided under Article 194(2) of the Constitution of India.
In the spirit of above said provisions, Mr.P.S.Ahluwalia, Advocate, for the petitioner has argued that the petitioner has got an indefeasible right to attend the 5th session of Himachal Pradesh Legislative Assembly as he has a constitutional obligation to attend the proceedings of the Session. He has argued that as per the spirit of provisions of Article 194 of the Constitution of India certain privileges are conferred on the person of State Legislation and the privileges have got a sacrosanct nexus and in saggregation with the obligations cast on a member of the State Legislation. He relied upon the precedents of Hon'ble the Apex Court in a case of Nalin Soren Vs. State of Jharkhand in SLP (Crl.) No.5859 of 2013, decided on 18.7.2013, wherein the sitting MLA of Jharkhand Assembly was permitted to appear in custody to the Assembly for the purpose of participating in the proceedings in Assembly. He also relied upon Rajesh Ranjan Vs. State of Bihar, 2000 (9) SCC 222, wherein elected Member of Parliament was permitted to be produced before the Speaker of the Lok Sabha for the purpose of taking oath so that he may not loose his membership of the Parliament.
After hearing the learned counsel for the petitioner the first legal question which arises for consideration is the power of Raj Kumar Arora 2 2014.02.03 17:33 I attest to the accuracy and integrity of this document CRM-M-3814-2014 (O&M) this Court in the exercise of inherent jurisdiction under Section 482 Cr.P.C., to grant permission to the petitioner to attend 5th session of Legislative Assembly on the ground that he has got a right of speech inside the House and on the ground that he enjoys exclusive privilege as member of the State Legislation to meet the constitutional obligation. The provisions of Article 190 and 194 of the Constitution of India are pari materia with Articles 101 & 105 of the Constitution of India under Chapter V which deals with the members of the Parliament, their disqualification and the privileges etc. The provisions of Articles 101 & 105 of the Constitution of India fall under Chapter VI (i) of the Constitution of India dealing with the members of the State executive, State Legislation and the disqualification and privileges etc., of the members of the State Legislation. Provisions of Articles 101 & 105 of the Constitution of India were considered before a Division Bench in Suresh Kalmadi Vs. Union of India and others, 2012 (1) RCR (Crl.), 543, where a member of the Parliament facing serious charges of corruption sought permission to attend parliamentary proceedings. The Division Bench of Delhi High Court taking into consideration the fundamental rights, powers, privileges and immunities arrived at a conclusion that in the exercise of powers under Section 226 of the Constitution of India, it will be inappropriate to exercise the discretion under Article 226 of the Constitution of India to grant permission to an accused of a serious offence to attend the parliamentary session solely on the foundation that he has Raj Kumar Arora 3 2014.02.03 17:33 I attest to the accuracy and integrity of this document CRM-M-3814-2014 (O&M) got a right of speech inside the Parliament or on the foundation that he enjoys exclusive privilege in the Parliament as a member on the substratum that he has to participate in the proceedings to meet the constitutional obligation. The inherent power vested in the High Court under Section 482 Cr.P.C., cannot be involved where the jurisdiction under Article 226 of the Constitution of India cannot be invoked. This question was decided in M/s Pepsi Foods Ltd. Vs. Special Judicial Magistrate, AIR 1998 (SC) 128. It was held in the said case that if a Court finds that the petitioner could not invoke its jurisdiction under Article 226 of the Constitution of India, the Court cannot certainly treat the said petition under Article 227 of the Constitution of India or Section 482 Cr.P.C. So far as the judgments cited by the learned Counsel for the petitioner permitting the members of the Legislative Assembly or Parliament to attend the session in custody, are concerned, the said power cannot be exercised under the garb of authority under Section 482 Cr.P.C., by this Court.
The petition is thus, dismissed. Anything mentioned in this order will not prejudice the rights of the petitioner, in any manner. He would be at liberty to seek permission of the House to absent himself from the meetings in accordance with the provisions of law.
(M.M.S.BEDI) JUDGE January 31, 2014.
rka Raj Kumar Arora 4 2014.02.03 17:33 I attest to the accuracy and integrity of this document