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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 ..... 2 of the R.P. Act is not applicable to the Presidential Elections. Presidential Election is governed by the Presidential and Vice Presidential Elections Act, 1952. Mr. Chavan did not point out any provision under the R.P. Act that prohibits the undertrial to cast vote in the Presidential Election. Petitioner is permitted to cast vote for Presidential Elections 2017, scheduled on Monday i.e. 17th July, 2017 - Jail Superintendent, Byculla and Commissioner of Police, Mumbai are directed to take appropriate steps for producing him at the place of polling viz: Central Hall, 4th Floor, Vidhan Bhavan, Backbay Reclamation, Mumbai 400 032 with sufficient police escort for the purpose of casting vote for the Presidential Elections 2017. They shall ensure that petitioner is taken to the Polling Station before 10.00 a.m. positively. After casting vote, he shall be immediately taken back to Byculla Jail. Petition disposed off. - WRIT PETITION NO. 2638 OF 2017 - - - Dated:- 14-7-2017 - R.G. KETKAR, J. Mr. Sachin R. Pawar, learned Counsel for the petitioner. Mr. Pravin P. Chavan, Special P.P., for respondents No.1 and 2. ORDER P.C. Not on board. At the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dergoing imprisonment in District Jail, Siwan, Bihar. He is a sitting Member of Parliament and decided to cast his vote for election of VicePresident. The Apex Court permitted the petitioner therein to cast his vote subject to imposing conditions. He submitted that the petitioner is undertrial and is not convicted in any case. The petitioner is also not served with any detention order. He, therefore, submitted that subject to imposing conditions, petitioner may also be permitted to cast his vote in the Presidential election, which is scheduled to be held on 17th July, 2017. 6. On the other hand, Mr. Chavan has strenuously opposed the Petition. He relied on following decisions: [1] Order dated 17th February, 2017 passed by the learned Special Judge under the Prevention of Corruption Act below Exhibit 154 in the case of petitioner herein. That application was filed by the petitioner seeking permission to attend the budget session which was to commence from 6th March, 2017 to 7th April, 2017. The learned Special Judge relying upon decision of Delhi High Court in the case of Suresh Kalmadi Vs. Union of India and others, L.P.A No. 707 of 2011 dismissed the application. [2] Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this subsection, a person whose name has been entered in the electoral roll shall not cease to be an elector. 9. As noted earlier, the Presidential elections are scheduled on 17.07.2017 and the papers are produced before me today in the afternoon session. In view of the limited time at my disposal, I am prima facie of the opinion that Section 62 of the R.P. Act is not applicable to the Presidential Elections. Presidential Election is governed by the Presidential and Vice Presidential Elections Act, 1952. Mr. Chavan did not point out any provision under the R.P. Act that prohibits the undertrial to cast vote in the Presidential Election. 10. In the case of Mohd. Shahbuddin [supra], petitioner had moved the High Court seeking permission to cast vote for election of VicePresident. As no orders were passed, he moved Apex Court. In paragraph 3, the Apex Court noted that petitioner is undergoing imprisonment in District Jail, Siwan, Bihar. In paragraph 4, the Apex Court issued direction to the Jail Superintendent of the District Jail, Siwan to take the petitioner with sufficient police escort to the Parliament House, Delhi, to cast his vote and the Election Commission may allow him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Apex Court referred to Section 7(b) of the R.P. Act and held that 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 Member of Parliament is concerned, there can be no distinction. If a person who is convicted and sentenced, has necessarily to forgo his right of participating in the business of the Legislature to which he belongs, because he is convicted and sentenced, it would follow that a person who is detained must likewise forgo his right to participate in the business of the Legislature. As noted earlier, in the present case, neither the petitioner is served with a detention order nor he is convicted and sentenced. In view thereof, the said decision is not applicable to the facts of the present case. 15. Mr. Chavan relied upon the decision of the Division Bench of this Court in Tanaji s/o Keshavrao Bhoite (supra). In that case, petitioner was an elected Director of respondent No.5, The Jalgaon District Central Cooperative Bank Limited. He was served with the detention order passed by the Collector, Jalgaon under the Maharas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Special Judge, below exhibit154, rejecting the petitioner's application seeking permission to attend the Budget Session between 06.03.2017 and 07.04.2017. I do not find any merit in this submission. Mr. Chavan also relied upon the order dated 27.03.2017 passed by this Court (Coram: A. S. Gadkari, J.) in Bail Application No.505 of 2017. The petitioner had sought temporary bail for a period of one month starting from 06.03.2017 to 07.04.2017 to enable him to attend Budget Session of the Maharashtra Legislative Assembly. For the reasons already recorded, even this decision is not applicable. 18. In my opinion, the learned Sessions Judge should have allowed the application in the light of the decision of the Apex Court in Mohd. Shahabuddin's case (supra) subject to imposing conditions. 19. In the light of the aforesaid discussion, Petition succeeds. Application at exhibit-272 filed by the petitioner before the learned Special Judge [under the P. C. Act], Greater Mumbai is allowed in the following terms: : O R D E R : [1] Petitioner is permitted to cast vote for Presidential Elections 2017, scheduled on Monday i.e. 17th July, 2017; [2] Jail Superintendent, Byc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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