w w w . L a w y e r S e r v i c e s . i n



Shiv Ram etc v/s The State

    Civil Writ Petn. Nos. 221, 167, 168, 200, 270, 284 of 2000

    Decided On, 28 January 2000

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE N.N. MATHUR & THE HONOURABLE MR. JUSTICE D.N. JOSHI

    For the Petitioners: Mahesh Bora, P.P. Chaudhary, Rajesh Joshi, R.K. Charan, G.R. Punia, Advocate. For the State: Sagar Mal Mehta, Advocate General, Assisted, Sundeep Bhandawat, Advocate.



Judgment Text

1. By this group of writ petitions under Art. 226 of the Constitution of India, the petitioners have challenged the constitutional validity of S. 19(g), 19(gg) and Proviso (ii) of Section 19 of the Rajasthan Panchayati Raj (Third Amendment) Ordinance, 1999, All the writ petitions are disposed of by common judgment.

2. On 17-1-2000, one of the petitions came up for admission and a notice was given to the learned Advocate General. The case was posted for final hearing on 27-1-2000. Mr. Mahesh Bora, learned counsel appearing for the petitioner, submitted that as the State has not filed reply, the petitioner is entitled to interim relief i.e. stay of offending provisions providing disqualification to contest election. Mr. Sagar Mal Mehta, learned Advocate General, submits that he is prepared to argue the petition finally without filing the reply. In view of this, we have taken up the group of writ petitions for final hearing at admission stage.

3. The Rajasthan Panchayati Raj Act, 1994, came into force on 23-4-1994, hereinafter referred to as 'the Act of 1994'. His Excellency the Governor of Rajasthan proclaimed the Ordinance as published in the Rajasthan Rajpatra dated 27th December, 1999, known as Rajasthan Rajpatra (Third Amendment) Ordinance, 1999, hereinafter referred to 'the Ordinance of 1999'. Para 5 of the Ordinance of 1999 provides with the amendment in S. 19, which is extracted as follows :

"5. Amendment of S. 19, Rajasthan Act No. 13 of 1994. In S. 19 of the Principal Act."

(i) and (ii) xxx xxx xxx xxx

(iii) for the existing clause (g), the following shall be substituted, namely :

"(g) has been convicted of any offence by a competent Court and sentenced to imprisonment for six months or more, such sentence not having been subsequently reversed or remitted or the offender pardoned."

(iv) After clause (g) and before clause (h), the following new clause shall be inserted, namely :

"(gg) is under-trial in the competent Court which has taken cognizance of the offence and framed the charges against him of any offence punishable with imprisonment for five years or more."

(v) xxx xxx xxx xxx

(vi) for the existing proviso (ii), the following shall be substituted, namely :

"(ii) for the p

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urpose of clauses (c), (g) and (k), any person shall become eligible for election after a lapse of six years from the date of his dismissal or the date of conviction, as the case may be."

4. Thus, by amendment, a disqualification is provided for contesting the election on the post of panch or Sarpanch to a person, who has been sentenced to imprisonment for six months or more by a competent Court or a person against whom, a competent Court has taken cognizance of an offence and framed the charges of an offence punishable with imprisonment for five years or more. The proviso (ii) of S. 19 liberates a person from disqualification under clauses (c), (g) and (k) after a lapse of six years from the date of dismissal or the date of conviction as the case may be.

5. We have heard Mr. Mahesh Bora, Mr. Rajesh Joshi, Mr. P. P. Chaudhary, Mr. G. R. Punia, Mr. R. K. Charan, learned counsel for the petitioners and Mr. Sagar Mal Mehta, learned Advocate General, assisted by Mr. Sundeep Bhandawat.

6. The petitioners have challenged the constitutional validity of the aforesaid provisions on several grounds, out of which, following have been canvassed before us :

(i) There existed no emergency, which called for his Excellency the Governor to promulgate the Ordinance of 1999;

(ii) The impugned amendment is hit by Arts. 14 and 21 of the Constitution of India as it provides an unreasonable restriction on a person to contest the election for the post of Panch or Sarpanch

7. It is submitted by the learned Advocate General that the right to elect and right to be elected are not fundamental rights and they are only statutory rights. In view of this, there is no question of infringement of any fundamental right of a person. Learned counsel has placed reliance on certain decisions of the Apex Court in N.P. Ponnuswami v. The Returning Officer, Namakkal reported in AIR 1952 SC 64; Jagan Nath v. Jaswant Singh reported in AIR 1954 SC 210; Dhartipakar Madan lal Agarwal v. Rajiv Gandhi reported in 1987 (supp) SCC 93 : (AIR 1987 SC 1577); C. Narayanaswamy v. C. K. Jaffer Sharief reported in 1994 Supp (3) SCC 170; Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe reported in (1995) 5 SCC 327 : (AIR 1995 SC 2284) and Ram Beti v. District Panchayat Raj Adhikari reported in (1998) 1 SCC 680 : (AIR 1998 SC 1222).

8. It is also contended by the learned Advocate General that as the process of election has commenced, it is not appropriate for this Court to interfere at this stage. Learned counsel has invited our attention to the provisions of Art. 243-f (b) and 243 (O), which are analogous to Art. 329(b) of the Constitution of India. It is submitted that the said provision provides a bar for entertaining an election matter after the election process has commenced.

Contention No. (i) :

9. It is contended by Mr. Mahesh Bora, learned counsel for the petitioners that His Excellency the Governor has been empowered to issue Ordinances to meet an emergency in which immediate action is required. It is submitted that in the instant case, there was no emergency as the Assembly was in session in the month of November. If the Government was genuinely interested, the bill could have been introduced while the Assembly was in session in November, 1999. It is, thus, submitted that there existed no emergency, which called for issuing of the Ordinance. It is well settled that the necessity of immediate action and promulgating an ordinance is purely a matter of subjective satisfaction of His Excellency the Governor. He is the sole judge as to the existence of the circumstances necessitating making of an ordinance. His satisfaction is not justiciable. It cannot be questioned on the ground of error of judgment or otherwise in Court. A reference may be made to a decision of the Apex Court in State of Punjab v. Satya Pal reported in AIR 1969 SC 903. In view of the settled position of law, the first contention raised is devoid of merit and the same is, accordingly, rejected.

Contention No. (ii) :

10. It is contended that Art. 21 of the Constitution of India gives a right to every person of his life and liberty. The personal liberty includes the right to contest an election and such a right cannot be snatched without procedure established by law. It is, thus, argued that while it is true that the right to contest the election is not a fundamental right still a person cannot be deprived of his statutory right even without adopting the procedure laid down by law. Thus, unless a person is held guilty of offence, simply because a charge has been framed against him, he cannot be deprived of his statutory right to contest election.

11. There is almost unanimity including among political parties that there is growing nexus between the political parties and anti-social elements polluting the atmosphere of Indian democracy. It is imperative for the proper functioning of the parliamentary democracy and the institutions created by or under the Constitution that a person, who has been charged with the certain types of offences and is under-trial, is not allowed to join the election fray till he gets a clean chit from the Court. In spite of widely acknowledged evil, persons, responsible and entrusted the job to cure, have not come forward to do something substantial in right direction. The reasons are obvious. It is expected that national interest is kept above all other interests, including so called political constrains. What to talk of common man, Law makers knows well that history sheeters, notorious, bad character persons involved in crimes of heinous nature like murder, dacoity or rape are contesting elections and getting elected. But person concerned appears to be not only conscious but over-conscious of the legal position that in the eye of law, a person is presumed to be innocent unless proved guilty. This principle of jurisprudence cannot be read in isolation and in absolute terms. It is now well settled that a person can be deprived of individual liberty by reasonable restrictions, if it is necessary in the public interest. The Apex Court dealing with the identical contentions in a bail matter in Babu Singh v. State of Uttar Pradesh reported in AIR 1978 SC 527 observed that deprivation of freedom by refusal of bail is not for punitive purpose but for bi-focal interests of justice to the individual involved and the society affected and does not violate Art. 21 of the Constitution of India. There is no violation of fundamental right of a person in not permitting him to contest the election, as such, offending provisions of the Ordinance cannot be impeached on this ground. As far as violation of statutory rights is concerned, a reasonable restriction can be provided in the public interest not to enter such person in election fray.

12. We are also not oblivious of the fact that while there is increase in criminalisation in the Country, there is also growing tendency of false implication to achieve political, business or private motives. In a country like ours where criminal Courts excel in slow motion, once a case is registered against a person, the political opponent may not allow the trial to concluded and succeed in keeping him away from the election for ever or at least for a substantial period. A reading of the offending Ordinance under challenge show that this aspect has been taken care of as only such of the persons have been kept out of election fray against whom a charge has been framed for serious offences.

13. A study of the relevant provisions of the Code of Criminal Procedure and as being interpreted by various decisions of the Apex Court, it would be evident that the possibility of such false implication, if not completely ruled out, has been minimised. Appropriate remedies have also been provided under the Law to get redress from false and motivated prosecution.

14. A person is disqualified to contest an election only when cognizance is taken and charge is framed against him. Thus, the question arises is as to when the cognizance is taken and the charge is framed. Criminal Law is set into motion by filing FIR in commission of cognizance offence. The duty of the investigating Officer is not merely to bolster up prosecution case and collect such evidence only which may procure conviction, but to bring out unvarnished truth. Chapter XII provides procedure of investigation by police. The police after independent investigation is required to submit its report known as "Police Report". If police finds no case, may submit report u/S. 169, Cr. P.C. If prima facie case is found, charge sheet may be filed u/S. 173, Cr. P.C. On receiving the police report, first judicial scrutiny takes place, when magistrate applies his mind to satisfy, if there is sufficient material to take cognizance. Copy of the Police report and copies of statements and documents are given to the accused as required by Ss. 207 and 208, Cr. P.C. The next effective stage is of framing of charge. In the Code of Criminal Procedure, there are three pairs of Sections, which deals with the questions of framing of charge or discharge being relatable to either a sessions trial or trial of warrant case or summons case. Sections 227 and 228, Cr. P.C. is with respect to sessions trial. Sections 239 and 240, Cr. P.C. is with respect to the warrants case. Section 245(1) and (2) is with respect to trial of summons case. They are extracted as follows :

"Discharge.

227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

"Framing of charge.

228. (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

When accused shall be discharged.

239. If, upon considering the police report and the documents sent with it under S. 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

Framing of charge.

240.(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claimed to be tried.

When accused shall be discharged.

245. (1) If, upon taking all the evidence referred to in S. 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if for reasons to be recorded by such Magistrate, he considers the charge to be groundless.

15. The common language of the provisions is that at the stage of framing of charge, the Court has to apply its mind to the question whether or not, there is any ground for presuming the commission of offence by the accused. It has been repeatedly emphasized by the Apex Court and the other High Courts in various decisions that as framing of charge affects person's liberty substantially, need for proper consideration of material warranting such order.

16. In Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra reported in AIR 1972 SC 545, the Apex Court warned the trial Courts not to blindly adopt the decision of the prosecution without fully adverting to the material on record for framing the charge. While upholding the order of the trial Court discharging the accused, the Court observed as follows (para 21) :

"If on the existing material, there is no ground for presuming them to be guilty then there can hardly be any point in framing charges and going through the formality of a trial and then acquitting them. Such a course would merely result in unnecessary harassment to the appellants without serving the cause of justice."

17. Considering the scope and ambit of consideration by the trial Court as the stage of framing of charge, the Apex Court in State of Bihar v. Ramesh Singh reported in AIR 1977 SC 2018 observed that at the initial stage of framing of charge, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in the cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

18. In Union of India v. Prafulla Kumar Samal reported in AIR 1979 SC 366, the Apex Court after considering the scope of S. 227 observed that the words "not sufficient grounds for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but he has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. The Court further observed that the jurisdiction under S. 227 of the Code is exercised by a senior and experienced Judge and he cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. The Court further explained that this however does not mean that Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

19. In State of Karnataka v. L. Muniswamy reported in AIR 1977 SC 1489, the Court observed that at the stage of framing of charge, the Court has to apply its mind to the question whether or not, there is any ground for presuming the commission of offence by the accused.

20. Thus, it is well settled that for the purpose of Ss. 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value, disclose the existence of all the ingredients constituting the alleged offence. The purpose of Ss. 227 and 228 is to ensure that the accusation made against the accused is not frivolous. Framing of charge on the basis of vague allegation in the absence of any material to connect the accused with the alleged offence would amount to an abuse of the process of the Court.

21. The accused has also remedy against the order of framing of charge by way of revision under S. 397 of the Code of Criminal Procedure before the superior Court. The order of framing the charge is held to be not an inter locutory order by the Apex Court. In Madhu Limaye v. The State of Maharashtra reported in (1978) 1 SCR 749 : (AIR 1978 SC 47), the Court observed as follows (para 15) :

"Yet for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which,when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of S. 397(2)."

22. The accused has also right to approach the High Court under S. 482 of the Code of Criminal Procedure and to satisfy the Court that continuance of proceedings are abuse of process of the Court. Thus, by impugned Ordinance, prohibition to contest the election is provided at the stage when correctness of the allegations constituting the offence punishable with imprisonment for five years has been thoroughly investigated by the police and filtered by judicial scrutiny. Thus, after the charge is framed, the accused cannot be heard to say outside the trial that he has been falsely implicated for certain ulterior motives. As regards the allegation of delay in trial, the experience shows that accused persons holding the public office or political office or a resourceful accused adopt dilatory tactics by plugging every possible loophole in the law through which the disposal of the case may be delayed. If a person is deprived to enter into the election fray after the charge is framed till he gets clean chit, his anxiety would be early conclusion of the trial. The co-operation of such accused will help the Courts in quick conclusion of the trial. A request can always be made to the trial Courts to take up the trial of case on priority in which the accused is holding a public or political office and has a chance of being entering into the election fray. Thus, in our view, the impugned amendment with an object to check criminalisation in politics and also to warn people in public life not to indulge in criminal activities, is in larger public interest. In view of this, it cannot be held that there is violation of Art. 21 of the Constitution.

23. It is lastly argued that the impugned amendment is hit by Art. 14 of the Constitution of India. It is submitted that the provision is arbitrary and unreasonable inasmuch as in the case of a Member of Parliament or a member of the Legislative Assembly, a person against whom charge has been framed or a person who has been convicted and sentenced to a period of six months or above and if the offence is not of moral turpitude, are entitled to contest the election. They can even hold the high office of Prime Minister or the Chief Minister but on the same ground, a person is deprived of his right to be elected as a Panch or Sarpanch. It is also submitted that selecting the offences punishable with imprisonment of five years or above, is arbitrary inasmuch as there is no nexus in providing such a cut off line. We are unable to agree with the submission of the learned counsel. As regards election of M.P.'s and M.L.A.'s, they are governed by Representation of People Act. Thus to provide such disqualification for M.P.'s and M.L.A.'s is within the domain of Parliament. The impugned Ordinance/legislation pertains to Rajasthan Legislative Assembly. Thus, in our view the impugned Panchayat Act cannot be held to be discriminatory on this ground. We only say that there is no harm in adopting good things of juniors by the seniors. Let the process of purification in democratic governance come from the grass-root i.e. Panch/Sarpanch. Coming to the cut of line of offence punishable with imprisonment for five years, a study of the penal law prevalent in the Country especially that contained in the Indian Penal Code, brings out clearly that severity of each punishment sanctioned by law is directly proportionate to seriousness of the offence. We have looked into the Schedule appended to the Code of Criminal Procedure. All these offences where the punishment is provided above five years are of serious nature. This excludes minor offences.

24. Thus, it cannot be said that there is no basis for fixing the cut off line of five years for the offences pending trial. In view of this, we find no substance in the third contention as well.

25. In view of the aforesaid, we uphold the constitutional validity of the provisions of S. 19(g), (gg) and provision (ii). We find no merit in the group of petitions and each of the writ petitions is dismissed being devoid of any merit. There shall be no order as to costs.
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