ASHOK BHUSHAN, J. - (1.) THIS writ petition has been filed by a sitting member of Uttar Pradesh Legislative Assembly who is detained in prison facing criminal charge under Sections 323,342,457,364,302,201,120-B IPC and 7th Criminal Law Amendment Act praying for a writ of mandamus commanding the respondents to permit the petitioner to participate in the session of Uttar Pradesh Legislative Assembly.
(2.) BRIEF facts of the case necessary for deciding the controversy raised in the writ petition are: The petitioner contested the general election of Legislative Assembly from the State of U.P. in the year 2007 as a ruling party candidate from Auraiya Sadar Constituency No.285 and was declared elected. On 24/12/2008, an F.I.R. was lodged by one Smt. Shashi Gupta wife of Manoj Kumar Gupta an Engineer working with the State Government under Sections 323,342,457 and 364 I.P.C. with the allegation that in the intervening night three persons came at their residence and had beaten the husband of the petitioner and had abducted him. Police after investigation submitted a charge-sheet against several other persons for charges of murder and criminal conspiracy. Petitioner was arrested by Police Station Akbarpur and was lodged in jail on 25/12/2008, since then the petitioner is detained in District Jail, Etawah. The case was committed on 16/2/2009 to the Court of Sessions Judge, Auraiya and the trial of the petitioner is pending. Apart from criminal charges as mentioned above, petitioner has also been detained under the National Security Act, 1980, U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986. The petitioner claims that he is still a Member of Legislative Assembly of U.P. from Constituency No. 285 and his seat is not vacant under Article 190 of the Constitution of India. Petitioner further claims that he is not subject to any disqualification for being member of State Assembly of U.P. as mentioned under Article 191 of the Constitution of India. The membership of the petitioner as M.L.A. has not been suspended till date. A notification dated 14/1/2009 was issued by the Secretariat, Vidhan Sabha, U.P., Luckknow for holding proceedings of Legislative Assembly for discussion and passing of demands for Second Supplementary grants for the financial year 2008-2009 which was informed to all the members of the Legislative Assembly of State of U.P. The petitioner moved an application dated 07/2/2009 in the Court of Chief Judicial Magistrate with a prayer to grant permission for his participation in the proceedings of the Legislative Assembly of the State of U.P. The application was rejected by the Chief Judicial Magistrate vide order dated 09/2/2009. This writ petition has been filed thereafter seeking a writ of mandamus commanding the respondents to ensure participation of the petitioner in the sessions of the Legislative Assembly of State of U.P.
(3.) SHRI R.A. Verma, learned counsel for the petitioner in support of the writ petition contended that petitioner having been elected as M.L.A. from Auraiya Sadar Constituency No. 285, it is his right to represent the people of the constituency in Assembly and in event he is denied the participation in the assembly, the right of people to be represented in the assembly shall be denied. He submits that petitioner is not a convict nor suffers from any of the disqualification for being a Member of Legislative Assembly of State of U.P. He submits that detention is only with the object of stopping a detenue from intermixing with the society and the petitioner in this case is not claiming permission for intermixing with the society, rather he is seeking permission to participate in the assembly.;