- (1.) THE question, which does arise as to whether Article 194 (2) of the Constitution of India confers any immunity on the Members of Legislative Assembly for being prosecuted in a criminal Court of an offence involving offer or acceptance of bribe.
(2.) BEFORE adverting to the submissions, advanced on behalf of the parties, the case of the prosecution needs to be taken notice of. The Election Commission of India, vide its Notification No. 318/1/2012 dated 12th March, 2012, did notify to fill up two vacant seats of Rajya Sabha from Jharkhand by 31st March, 2012. 19th March, 2012, was fixed as a last date for filing nomination. 20 th March, 2012, was fixed for scrutiny of nomination papers. 22 nd March, 2012, was fixed for withdrawal of nomination and 30th March, 2012, was fixed for poll. Six candidates, namely, Praveen Kumar Singh, Pradeep Kumar Balmuchu, Sanjeev Kumar, Ansuman Mishra, Pawan Kumar Dhoot and Raj Kumar Agarwal, having allegiance to different political parties including the independent candidates, filed their nominations. According to the case of the CBI, none of the major political parties, which fielded its candidate in the election, had decisive majo1rity to to get its candidate elected. In such situation, some of the independent candidates, such as, Raj Kumar Agarwal, Ansuman Mishra and Pawan Kumar Dhoot, jumped in the fray . Jharkhand Mukti Morcha (JMM) had fielded its candidate Sanjeev Kumar. Nevertheless, 10 Members of the Legislative Assembly of Jharkhand Mukti Morcha including the petitioner, did propose to nominate R.K.Agarwal, an independent candidate. Meanwhile, two Members of the Parliament, namely, Babu Lal Marandi and Dr. Ajay Kumar, lodged a complaint on 27/03/2012, before the Chief Election Commissioner of India, alleging therein that there is every possibility of the process of election being influenced by the money power as some of the Members have indulged themselves in Horse Trading. On getting this complaint, the Election Commission of India, on 27/03/2012, alarmed all the departments including the Income Tax Department to check the menace of Horse Trading and use of money power. The Chief Commissioner of Income Tax, Ranchi, in the late night of 29/03/2012, received information to the effect that huge money is being taken from Jamshedpur to Ranchi for distribution amongst some of the Members, who will be participating in the election. On receiving such information, Income Tax authority, with the help of the local police, put a picket on Jamshedpur - Ranchi Highway. During that course, an Innova car was intercepted from which unaccounted cash of Rs. 2.15 crores were recovered. One Sudhanshu Tripathy, the custodian of the cash, explained that the cash of Rs. 2.15 crores had been handed over to him by Sumitra Sah, son -in -law of R.K.Agarwal to be handed over to Arun Kumar Khandelwal, an employee of M/s Jay Shree Motors, Ranchi, belonging to R.K.Agarwal. Upon seizure of cash, the then Dy. Director, Income Tax, Ranchi, lodged a written complaint to Officer -Incharge of Namkum Police Station, Ranchi, which was registered as Namkum P.S. Case No. 58 of 2012 on 30/03/2012, under Section 171(F) and 188 of the Indian Penal Code. Thereupon, this Court, in a Public Interest Litigation (PIL) when did find it a grave case of involvement of money power, Horse Trading to influence the process of the election of the Council of the States, directed the CBI to take up the Investigation relating to the criminality of the persons involved. In compliance with the order, Principal Secretary to the Election Commission of India, requested the Secretary to the Government of India, Ministry of Personnel, Public Grievance & Pension, New Delhi, for entrusting the matters relating to the Election of Rajya Sabha to CBI for thorough investigation for bringing the culprits to book so that pristine purity of the House of Elders is not tarnished. In that event, upon issuance of necessary notification, the CBI took up the investigation of Namkum P.S. Case No. 58/2012 and re - registered the case as RC 2(S)/ 2012 -AHD -R, for further investigation. During investigation, it was found that out of 80 elected Members of Jharkhand Legislative Assembly, 79 Members of Jharkhand Legislative Assembly, participated in the election, whereas one MLA of CPI (M), did not participate. During investigation, it was found that the petitioner by calling R.K.Agarwal on cell phone, asked him to pay Rs. 50 lakhs as an advance for proposing his nomination. Lateron, Air bag was handed over at the residence of Nalin Soren, where most of the MLAs of JM were present. The said Air bag was dropped by the petitioner at the residence of one Rajendra Mandal. Further evidence, which was collected, is that in the evening of 29 th March, 2012, Rs. 1 corer was given by Raj Kumar Agarwal at hotel Radison Blue, Ranchi. The said air bag containing money was brought to the residence of the petitioner and on the following day, it was taken in the vehicle of IOCL to Jamshedpur. The Election Commission did countermand the election and, therefore, Mr. Agarwal was seen coming to the residence of this petitioner at several occasions for getting back a sum of Rs. 1.50 crores, but the petitioner never did oblige him. The CBI further made investigation on the point of investment of the money after the aforesaid transaction. After completion of the investigation, charge sheet was submitted against number of accused persons, including this petitioner on the charge that the petitioner did receive illegal gratification of Rs. 50 lakhs from R.K.Agarwal for proposing his nomination and also Rs. 1 crore for voting in his favour, but the petitioner never voted in favour of Agarwal. On submission of the charge sheet, the Court took cognizance of the offences punishable under Sections 120B and 171 (E) of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against the petitioner and others vide order dated 07/06/2013, which is under challenge.
(3.) MR . Jitender Singh, learned senior counsel appearing for the petitioner submits that notwithstanding the fact that the petitioner has been charged to have received bribe for casting vote in favour of R.K.Agarwal, she cannot be prosecuted criminally as the provision contained in Section 194(2) of the Constitution of India confers immunity upon a person from proceeding in any court in respect of vote given by him in the Legislature and, as such, any prosecution of the petitioner is against the mandate of the Constitution and, thereby, the order taking cognizance is fit to be quashed. In this respect, learned senior counsel submits that the point involved in this case, has no longer remained res integra on account of authoritative judgment rendered by the Hon'ble Supreme Court in a case of "P.V.Narsimha Rao - versus - State (CBI -SPE), [(1998) 4 SCC 626]", where number of Members of the Lok Sabha had been alleged to have been bribed for voting against the no -confidence motion. The question did arise as to whether Article 105(2) of the Constitution confers any immunity on the Members of Parliament for being prosecuted in a criminal Court for an offence involving offer or acceptance of bribe? There, the then Their Lordship Hon'ble Mr. Justice S.C.Agrawal for himself and also for Hon'ble Mr. Justice Anand (minority view) did hold that the immunity from prosecution of a Member, cannot be extended for having received bribe or having entered into a conspiracy to receive bribe for the purpose of giving a vote in the House, whereas the majority view was that anything done, which had nexus with the vote will not make him liable to be proceeded in the Court of law as provision under Article 105(2) gives complete immunity to those persons. Further, it was submitted that since Article 194 (2) is in parameteria of the provision as contained in Article 105 (2), the same would be the fall out in view of the decision of the Constitution Bench and, thereby, the instant prosecution can be said to be against the mandate of the constitutional provision and, hence, order taking cognizance is fit to be quashed.;