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2003 DIGILAW 1272 (BOM)

Anil Umrao Gote v. State of Maharashtra

2003-12-15

H.L.GOKHALE, S.S.PARKAR

body2003
JUDGMENT - GOKHALE H.L., J.:---Heard Mr. Pradhan for the petitioner and Mr. Raja Thakare, Special Public Prosecutor for the respondent. 2.The petitioner is a member of the Maharashtra State Legislative Assembly elected from Dhule. The petitioner has been arrested on 29th June, 2003 for commission of offences under the provisions of Maharashtra Control of Organized Crimes Act, 1999 (MCOC Act). A.C.R. has been registered by Band Garden Police Station, Pune under sections 120-B, 255, 260, 263-A, 419, 420, 471 to 476, 109 and 34 of Indian Penal Code read with section 63(A)(b) of the Bombay Stamp Act, 1958 and sections 3, 4 and 24 of the said MCOC Act read with sections 7, 12 and 13(1)(d) of Prevention of Corruption Act. The petitioner is accused No. 45 under this C.R. and as of now the number of accused is 62. 3.In the month of July 2003, the Monsoon Session of the State Assembly was held. The petitioner had applied for attending the said Session by moving an application to the learned Judicial Magistrate, First Class, Pune. It however appears that the application was adjourned to a long date and it became infructuous. Now the Winter Session is being held from 8th December, 2003 at Nagpur and the petitioner is desirous of attending it. 4.For this purpose, the petitioner initially filed a criminal application invoking section 482 of Code of Criminal Procedure for a temporary bail. However, in view of the order passed by the learned Single Judge, the petitioner was permitted to convert the application in to a writ petition, which he has done and that is how the present petition has been filed. 5.The petition is opposed by filing a reply by one Shri P.R. Choudhary, Deputy Superintendent Police under the Special Investigation Team, Pune which is investigating the offences as stated above. The offences principally are concerning an organized crime syndicate whereunder counterfeit stamps were sold in an organized manner depriving the State revenue of thousands of crores of rupees. 6.Mr. Pradhan, learned Counsel appearing for the petitioner, submitted that under Article 194(2) of the Constitution, there are certain privileges which are available to the members of the State Legislatures. The offences principally are concerning an organized crime syndicate whereunder counterfeit stamps were sold in an organized manner depriving the State revenue of thousands of crores of rupees. 6.Mr. Pradhan, learned Counsel appearing for the petitioner, submitted that under Article 194(2) of the Constitution, there are certain privileges which are available to the members of the State Legislatures. Article 194(1) guarantees a freedom of speech to a member of the House and Article 194(2) provides that a member of the Legislature shall not be liable for any proceedings in any Court in respect of anything said or any vote given by him in the Legislature. Undoubtedly these are privileges of the Member of Assembly and there can be no dispute that they should be safeguarded. Mr. Pradhan tried to submit that when such a privilege was available under Article 194(2), it could not be curtailed by any Executive Act. However, as far as this submission is concerned, he could not show any infringement thereof in the context of the petitioner since he is taken in custody for investigation in an offence. 7.Mr. Pradhan relied upon Article 190(4) also which provides that if a member does not attend the House for a period of 60 days without permission, then his seat was liable to be declared vacant. Mr. Pradhan stated that the petitioner has attended all the Sessions so far and that too on all the days except the Monsoon Session and he fears that eventually he will be hit by this Article. As far as this submission is concerned, there is a clear provision for moving the House to seek the necessary permission. In any case, Mr. Pradhan accepted that as of now no occasion to forfeit the membership has arisen. Through this petition, the petitioner is seeking that he should be permitted to attend the House for the Winter Session being held in Nagpur. Although the prayer is for temporary bail, Mr. Pradhan submitted that if the Court so deems fit, the petitioner may be taken to the House in police escort everyday and after the Session is over, he may be taken in custody. However, as stated above, as far as these two submissions based on Articles 194(2) and 190(4) are concerned, we do not find any merit therein requiring us to permit the petitioner to attend the House on the basis of those Articles. 8.Mr. However, as stated above, as far as these two submissions based on Articles 194(2) and 190(4) are concerned, we do not find any merit therein requiring us to permit the petitioner to attend the House on the basis of those Articles. 8.Mr. Pradhan then relied upon Rule 306 of the Maharashtra Legislative Assembly Rules. This Rule also provides that a member remaining absent may apply for leave of absence. This only an enabling provision and does not carry the submission of the petitioner any further. 9.Mr. Pradhan then referred to section 8 of the Representation of the People Act, 1951 which contains a provision regarding disqualification from membership for a period of six years on conviction for certain offences. He submitted that even when it comes to a conviction for certain offences, sub-section (4) of section 8 provides that the disqualification is not to come into force for a period of 3 months after the conviction and during the pendency of appeal or revision therefrom. It was therefore submitted that whereas even after the conviction the disqualification is not to operate, then in that case when the person is in custody as an under trial prisoner, surely his rights could not be curtailed. Here again, the submission is misconceived. The present curtailment of the petitioners freedom is to facilitate the investigation. This section 8(4) is an enabling provision which protects the member from disqualification for a period of 3 months from the date of conviction (within which period he may file the necessary appeal or revision) and during the pendency of that proceeding. That provision cannot be read to prevent any such person being kept in custody for investigation resulting into his not attending the House. 10.Mr. Pradhan relied upon a few judgments to substantiate his rights. Firstly, he relied upon the judgment of the Apex Court in (Bhuvan Mohan Patnaik v. State of A.P.)1, reported in 1975(3) S.C.C. 185 . In this matter, the petitioners were making a grievance about the armed guards and the live-electrical mechanism fixed outside the jail wall. 10.Mr. Pradhan relied upon a few judgments to substantiate his rights. Firstly, he relied upon the judgment of the Apex Court in (Bhuvan Mohan Patnaik v. State of A.P.)1, reported in 1975(3) S.C.C. 185 . In this matter, the petitioners were making a grievance about the armed guards and the live-electrical mechanism fixed outside the jail wall. The Supreme Court did not accept the grievances made by the petitioner though it did observe relying upon various judgments and particularly one in the case of (State of Maharashtra v. Prabhakar Pandurang Sangzgiri)2, 1966(1) S.C.R. 702 that even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution and that he shall not be deprived of his life or personal liberty except according to procedure established by law. However, it is material to note that when one is in custody, certain restrictions automatically get imposed and in para 6 of this judgment the Court has in terms observed as follows:-- "A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence." 11.Mr. Pradhan also referred to the judgment in the case of (Sunil Batra v. Delhi Administration)3, reported in 1978(4) S.C.C. 494 , (and particularly the judgment in (Maneka Gandhi v. Union of India)4, 1978(1) S.C.C. 248 relied upon in this case, which laid that prisoners have various rights as laid down in Sunil Batras case. Mr. Pradhan submitted that when various rights are available to the prisoners and convicts, an under trial prisoner, and particularly one who is a MLA, should not be deprived of his legitimate right to attend an Assembly Session and to represent his voters. It is not possible to accept the submission. The attempt to establish a correlationship between the rights of a detenu and of a MLA in detention facing criminal investigation is far fetched. 12.Mr. Pradhan lastly referred to the judgment in the case of (Ananda Nambiar v. Chief Secretary to Government of Madras)5, reported in A.I.R. 1966 S.C. 657. That was a case where the petitioner, who was a Member of Parliament, was detained by Government of Madras and the detention order was under challenge. The Supreme Court declined to interfere amongst other reasons on the basis of the proclamation of emergency which was then in vogue. Mr. That was a case where the petitioner, who was a Member of Parliament, was detained by Government of Madras and the detention order was under challenge. The Supreme Court declined to interfere amongst other reasons on the basis of the proclamation of emergency which was then in vogue. Mr. Pradhan submitted that he was referring to that judgment only to point out that it was only because of the emergency proclamation that certain rights had come to be curtailed and that the legal proposition should be now held to be changed after the judgment in the case of Sunil Batra (supra). Again, it is material to note that in para 18 of the judgment in Ananda Nambiars case, the Supreme Court observed as follows:-- "The freedom of speech to which Article 105(1) and (2) refer, would be available to a Member of Parliament when he attends the session of the Parliament. If the order of detention validly prevents him from attending a session of Parliament, no occasion arises for the exercise of right of freedom of speech and no complaint can be made that the said right has been invalidly invaded." Prima facie, we do not find that this judgment can carry the submissions of the petitioner any further. It is no doubt true that the petitioner is a representative of the voters and normally he should have the right to attend the House whenever the Assembly Session is called. In the peculiar facts and circumstances of the case, the question to be considered is whether he should be permitted to attend the house, when he is facing a prosecution of a serious magnitude. 13.In the reply filed by Mr. Choudhary, it is pointed out that the investigation is still going on. In para 2 of the reply, it is stated that the petitioner is one of the accused in the Stamp Scam and the charge-sheet has already been filed against him. It is further stated that the petitioner has played a significant role in the conspiracy and there is thumping evidence to show his association with and abetment of the Organized Crime Syndicate by the principal accused AKL Telgi. Thereafter it is mentioned that under the orders of the Division Bench presided over by the Honble Chief Justice, the Special Investigation Team has received the intercepted tape recorded conversations between the conspirators from the State of Karnataka. Thereafter it is mentioned that under the orders of the Division Bench presided over by the Honble Chief Justice, the Special Investigation Team has received the intercepted tape recorded conversations between the conspirators from the State of Karnataka. It is specifically averred that these conversations have revealed that the present petitioner was very much in contact with Telgi when Telgi was in custody of the Karnataka Jail. We are told that Telgi has been taken in custody on 9th November, 2001 whereas the petitioner has been taken in custody on 29th June, 2003. Mr. Thakare, learned Special Public Prosecutor, has tendered to us the transcript of the tapes in a sealed cover and also showed readiness to provide the tapes for the Court to listen to them. Mr. Thakare submitted that the prosecution is very much relying upon these tapes as also the transcript and submitted that the reading of the transcript would reveal the role of the petitioner in the entire controversy. Mr. Pradhan objected to the transcript being looked into and submitted that unless a privilege is claimed, the petitioner should not be denied access to this transcript if it is to be looked into. Mr. Pradhan submitted that he had not made any submission on merit and, in any case, he denied all the allegations made by Mr. Thakare and the statements made in the reply. 14.In the reply of Mr. Choudhary, it is further stated in para 12 that the petitioner is a highly influential person and moreover if he makes any speech in the Legislative Assembly, claiming privilege, it can result in seriously and adversely affecting the investigation. In para 14, it is stated that high ranking Police Officers who are arrested in the Stamp Scam recently are in custody and investigation is focused on the aspect of political patronage, if any, to the Organized Crime Syndicate and hence if at this stage the petitioner is allowed to go out on bail or to attend the Legislative Assembly, it is bound to cause hindrance in the ongoing investigation. 15.We have considered the submissions by both the Counsel. Undoubtedly, a Member of Assembly does have a right to attend the House whenever a Session thereof is called. 15.We have considered the submissions by both the Counsel. Undoubtedly, a Member of Assembly does have a right to attend the House whenever a Session thereof is called. However, as of now, we are concerned with the prayer of the petitioner, who is a MLA facing prosecution, in the facts and circumstances of the present case to attend the Winter Session at Nagpur and that too, as requested by Mr. Pradhan, under a Police Escort. As against that, Mr. Thakare has submitted that the petitioner is involved in Stamp Scam as averred in the affidavit in reply and the investigation is focused on the aspect of political patronage, if any, to the Organized Crime Syndicate. As of now, the number of accused has gone to 62. Apart from the petitioner, one more MLA from the State of Andhra Pradesh is in custody and good number of Police Officers are also in custody. On the one hand, the petitioner is desirous of exercising his right to represent his voters and to attend the House, on the other hand, the State is keen that the investigation should be permitted to proceed without any hindrance and is very much apprehending that if the petitioner is permitted to attend the House, he may claim a privilege, make some statement in the Assembly and it would seriously affect the investigation. That is what is specifically averred in para 12 of the affidavit in reply. Mr. Thakare has therefore specifically requested us to look into the transcript of the tapes. We have not looked into the transcript of the tapes nor have we heard the tapes, which Mr. Thakare is keen on our listening, principally since there is sufficient material placed on record and particularly through the statements made in the reply filed by Mr. Choudhary, which justify keeping the petitioner under restraint when there are large number of conspirators and when the investigation is at a crucial stage and further when there is also likelihood of supplementary charge-sheet being filed. 16.Having considered the totality of the circumstances, we are of the view that nothing should be permitted to be done which would affect the course of investigation. Any such restriction on the petitioner from attending the House would be until the investigation is completed. Mr. 16.Having considered the totality of the circumstances, we are of the view that nothing should be permitted to be done which would affect the course of investigation. Any such restriction on the petitioner from attending the House would be until the investigation is completed. Mr. Thakare informs that the Special Investigation Team is required to inform the Division Bench presided over by the First Court of the various steps taken on 16th January, 2004. The next occasion when the petitioner may desire to attend the House would be when the Budget Session starts which will be in February/March, 2004. In the event the investigation is completed by that time or has reached a convenient stage, an application, if any, made by the petitioner could be considered at that point of time again depending upon the facts and circumstances as they may then obtain. As of now, in view of the affidavit which is filed by the respondent placing on record the difficulties which the investigation is likely to face, in the event the petitioner is allowed to attend the House, in our view, the prayer made by the petitioner cannot be accepted. We make it clear that we are not deciding the rights of the Members of the Assembly or the Parliament in generality as such. We are concerned with the prayer made by the present petitioner who is one of the accused in the multi crore Stamp Scam. It is also not a case of a political detenu seeking to attend the Session of Assembly or a Parliament. It is on this background and considering the stage at which the investigation presently stands, in our view, it would not be proper to entertain the prayer. Petitioner is therefore rejected. 17.The sealed cover containing the transcript of the tapes is returned to Mr. Thakare. 18.Authenticated copy of this order be made available to the parties. Petition dismissed. -----