P K MUSAHARY Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this application under Article. 226 of the Constitution of India, the petitioner Shri P.K. Musahary has prayed that three members of Assam Legislative Assembly Shri Parmeswar Brahma, Shri Tejendra Narzary and Smt. Pramila Rani Brahma, who were arrested on 26/11/1992 and detained since then in connection with Dispur P.S. Case No. 588/92 under section 120-B, 302, 307 and 427, IPC, read with sections 3 and 4 of TADA (P) Act as well as sections 4 and 5 of the Explosive Substances Act, be allowed to attend the session of Assam Legislative Assembly and to cast their votes in the election of the Speaker by the Assembly. An application was moved before the Designated Court at Guwahati for allowing them to cast their votes in the election of the new Speaker by the Assembly. The application was registered as Misc Case No. 3803/92. The Designated Court disposed of the petition holding that the Court is not competent to accord permission to cast vote and directed the petitioner to have the appropriate Court for necessary permission - hence this petition.

(2.) Mr. A.R. Barthakur, learned Advocate General, Assam, has contended that the writ petition is not maintainable on the facts and in the circumstances of the case. Mr. B.K. Das, learned counsel for the petitioner, has submitted that the rights of the members of the Legislative Assembly to cast their votes derive from Article 178 of the Constitution and the right to attend the session of Assembly is constitutional right under Article 194 of the Constitution.

(3.) The question which arises for consideration is whether the petition is maintainable of the facts and in the circumstances of the case. Where the privilege of freedom from arrest and detention of a member of Legislative Assembly of a State in civil cases arc concerned, section 135-A, .CPC, provides that, no member shall be liable to arrest or detention in prison under civil process during the continuance of any meeting of Legislative Assembly and during the forty days before and after such meeting, sitting or conference.