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TMI Blog2017 (7) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... P. C. Act], Greater Mumbai below Exhibit 272 in Special Case No. 104 of 2015 and Special Case No. 108 of 2015 arising from C.R. No. 336 of 2015. The petitioner has also prayed for direction to the respondents and in particular, 2nd respondent to provide security through marshals along with armed police escort for the transit of the petitioner to the Assembly to cast his ballot in the Presidential Election scheduled on 17th July, 2017. 4. In support of this Petition, Mr. Pawar has relied upon the order dated 3rd July, 2017 passed by the learned Special Judge under the Prevention of Money Laundering Act in Spl. PMLA Case No. 2 of 2016 in the case of Assistant Director, Directorate of Enforcement Vs. Chhagan Bhujbal & Ors. By that order, learned Special Judge permitted accused No.1 Chhagan Bhujbal to cast vote for Presidential Election, 2017 by directing Jail Superintendent, Arthur Road Jail and Commissioner of Police, Mumbai to take appropriate steps for producing him at the place of polling with sufficient police escort for the purpose of casting vote for the Presidential Elections 2017. After casting vote, he shall be immediately taken back to Arthur Road Jail. Registrar (Session ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decision in case of K. Ananda Nambiar and others [supra] was considered by Delhi High Court in the case of Suresh Kalmadi [supra]. He also relied upon Section 62 (5) of the Representation of the People Act, 1951 (for short 'R.P. Act') to contend that petitioner is not entitled to vote at any election as he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police. He submitted that petitioner is under trial. He is in lawful custody of the Police and, therefore, he is not entitled to cast vote in the Presidential election. He further submitted that right to cast vote is not a fundamental right and, therefore, no case is made out out for granting any relief to the petitioner. 8. I have considered the rival submissions advanced by the learned Counsel appearing for the parties. I have also perused the material on record. It is no doubt true that the petitioner is facing about 10 cases. It is also not in dispute that as on date the petitioner is not convicted of any of the offence / charges levelled against him. Mr. Chavan relied on Section 62(5) of the R.P. Act. Section 62 (5) lays down tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debate, and to record his vote. So long as a Member of Parliament is qualified to be such Member, no law can validly take away his right to function. The right to participate in the business of the legislative chamber to which he belongs, is a constitutional right. The Constitutional right of a Legislature can be regarded as his fundamental right. 12. In paragraph 17, the Apex Court held that they are not rights, which can be properly described as constitutional rights of the Members of Parliament at all. The Apex Court referred to Articles 79, 85 and 86 and observed that these Articles cannot be construed to confer any right as such on individual Members or impose any obligation on them. It is not as if a Member of Parliament is bound to attend the Session, or is under an obligation to be present in the House when the President addresses. The context in which these Articles appear shows that the subject matter of these articles is not the individual rights of the Members of Parliament, but they refer to the right of the President to issue a summons for the ensuing Session of Parliament or to address the House or Houses. 13. In paragraph 18, the Apex Court held that on a close ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooperative Societies Act, 1960 and the Maharashtra Cooperative Societies Rules, 1961 as also byelaws of the 5th respondent society. The right is thus carved out under the statutory rules. The said right cannot be regarded as a legal right justiciable in Court against "State", as long as the State has not acted in any manner, which can attract the description "denial of a right by the State". In paragraph 17, the Division Bench held that right of attendance is not exercisable on the face of preventive detention order of the petitioner. In paragraph 18, the Division Bench, considering the background and the social stigma on account of preventive detention, held that the relief in equity and as a constitutional right, enforceable through Article 226 of the Constitution of India was not available to the petitioner. In my opinion, the said decision is also not applicable to the facts of the present case. 16. Mr. Chavan relied on the decision in the case of Suresh Kalmadi [supra], and in particular paragraph 17. The Delhi High Court denied permission to the petitioner to attend the Sessions of Parliament and record his vote. In that case, petitioner sought direction against respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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