TaxTMI 
TaxTMI 
TaxTMI 
2016 (6) TMI 1446
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....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 vot....
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....sentation 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. 4. I have heard learned counsel for the parties. 5. The preamble to the Representation of the People Act 1950 reads as under; An Act to provide the allocation of seats in, and the delimitation of Constituencies for the purpose of election to the House of the People and legislatures of states, the qualification of voters at such elections, the preparation of elector....
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.... provisions have been made in general terms and where the legislature intended to make specific provisions in respect of any of the Houses of the Parliament or the State Legislatures or in respect of any of the matters dealt with in these Acts, such provisions have been made expressly. Section 59 of the Act of the 1951 affords a good example of it. Main Section delegates power to provide for the manner of ballot where as the proviso makes a special provision in respect of the election of the Council of States and says that votes at an election to fill seats in the Council of States shall be given particularly by open ballots. Thus, interpreting the provisions of these two Acts, we have to keep in mind whether the provision is cast in genera....
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.... law for the time being in force. (6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector. 10. The Judgment of the Hon'ble Apex Court in Anukul Chandra Pradhan v. Union of India and others (1997)6 SCC 1 examines the constitutional validity of the provision of Section 62 (5) of the Act of 1951 on the touchstone of Articles 14 and 21 of the Constitution and upholds its validity observing as under:- "6.The effect of sub-section (5) of Section 62 of the Act is that any person who is confined in prison while serving a sentence of imprisonment on his conviction for any offence or is under lawful confi....
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....r under a sentence of imprisonment or transportation or otherwise, or is in lawful custody of the police cannot be allowed to vote at an election to the Council of States. However, this restriction is not applicable to a detenue under any law relating to preventative detention. Sub-Section (5) of Section 62 of the Act 1951 uses the word 'shall' and therefor, is a mandatory proposition of law which this court is bound to follow, being the express exposition of law by the legislature. The Judgment of the Hon'ble the High Court of Orrisa in the case of Shri Ramesh Chandra Jena (supra), to the extent it allows a person subject to restriction of Sub-section (5) of Section 62 of the Act 1952 to vote, appears to be in per incurium and ....