- (1.) By this petition, following prayers have been made: - (1)By issuing an appropriate writ, or order or direction, respondent may kindly be directed to allow petitioner to participate in Rajaya Sabha Election and cast his vote which is scheduled on the 11.6.2016 by escorting him in custody for the purpose of participating in casting vote in the Rajaya Sabha Election. (2)The Hon'ble Court may kindly pass such other order or a direction, which it may deem just, proper and expedient in the facts and circumstances of the present case. Any other appropriate relief to which the appellant/petitioner is found entitle may also be granted.
(2.) It is submitted by the learned counsel for the petitioner Shri Rajeev Surana that the petitioner is an elected representive of Legislative Assembly, is presently, behind the bars pending trial for the offence under Section 302 and 120 B of IPC. By notification dated 18th May, 2016 Election of Rajya Sabha has been declared and voting for the same going to be held on 11th June, 2016. It is submitted that petitioner has a right to vote as he represents the Dholpur constituency. Though, the petitioner is confined in Dholpur jail District Dholpur, yet has the right to cast vote since he has not been convicted and is merely imprisoned pending trial. Therefore, he may be allowed to exercise the said right while accompanied by police escort. Learned counsel for the petitioner made a reference to the Judgment of Hon'ble Apex Court in the case of Nalin Soren v. State of Jharkhand, in petition for special leave to appeal Criminal No. 5859/2013 decided on 18.7.2013 wherein permission to attend the assembly proceedings was granted. It is also submitted that the right of the petitioner to said vote is a constitutional right. Learned counsel for the petitioner has further placed reliance on a judgment of the Orissa High Court in the case of Shri Ramesh Chandra Jena @ Ramesh Jena vs. State of Orissa and Ors., WP(C) No.10342 of 2010, decided on 10.06.2010 wherein the petitioner, a member of the Orissa Legislative Assembly, was allowed to participate in the process of voting to the Biennial Elections to the Council of States, 2010.
(3.) On the other hand, Learned Additional Advocate General Shri B.N. Sandhu has submitted that Chief Election Commission of India and the Secretary Rajasthan State Legislative Assembly are necessary parties in the present petition and without there being made parties the petition is not maintainable and deserves to be dismissed. It is also submitted that in view of Section 62 (5) of Representation of People Act, 1951, the petitioner is not entitled to vote since, he is confined in prison and is in lawful custody of the police. Further, since he is not in preventive detention, proviso to Section 62(5) will not apply. In support of his contention, Learned AAG has placed reliance on Anukul Chandra Pradhan Advocate v. Union of India and others (1997), 6 SCC page 1.;