TaxTMI 
TaxTMI 
2024 (10) TMI 1824
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....f India (through Video Conferencing) SURESHWAR THAKUR, J. 1. The instant petition has been preferred by the petitioner under Article 226/227 of the Constitution of India for the issuance of a writ in the nature of mandamus, thus directing the Enforcement Directorate to take appropriate legal action against respondent No. 5, who is/was a member of the Legislative Assembly Haryana, and, is re-contesting from Samalkha constituency, despite registration of FIRs and Enforcement Case Information Report, besides despite issuance of various non-bailable warrants. The petitioner has also sought a direction being issued upon respondent No. 3 to re-evaluate the affidavit dated 9.9.2024 (Annexure P-19) furnished by respondent No. 5 in Form 26 under Rule 4-A of the Conduct of Election Rules, 1961, as the said form is in violation of The Representation of the People Act, 1951 (for short 'the Act of 1951'). Brief facts of the case 2. It is averred in the petition that the petitioner is a registered voter of Samalkha constituency, and, has been aggrieved by the inaction of the authorities concerned, whereby respondent No. 5 has been enabled to circumvent the provisions of law, besides ....
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.... is also averred thereins, that on the complaint of the District Town Planner Enforcement Gurugram, another FIR No. 151 of 5.7.2023 under Sections 120-B, 420, 467, 468, 471 IPC at P.S. Sushant Lok, Gurugram (Annexure P-6), was registered against Mahira Homes Private Limited and its Directors of whom respondent No. 5 was a Director for a certain period), and against Associate Companies and Authorized Signatories, for submitting forged and fabricated plans in respect of two licences i.e. licence No.9 of 2022 and licence No. 61 of 2023. Furthermore, the District Town Planner concerned, got registered another FIR No. 175 of 18.5.2002 under Section 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 at P.S. Rajendra Park, Gurugram (Annexure P-7) against six persons including respondent No. 5 and his son Sikander Singh, on the allegations that SAFPL and the accused persons, had got issued licence No. 106 of 2017 for setting up of Affordable Group Housing Colony by submitting bank guarantees. However, several bank guarantees were found to be fake, and, upon confirmation it was found that the same were never issued by the bank(s) concerned, who had purportedly issued the ....
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....of the Constitution of India. Moreover, it is averred that in column Nos. 6A and 8 of the nomination form, respondent No. 5 has given false undertakings. However, the said defective and self contradictory nomination form was accepted by the Election Commission of India without application of mind despite the fact that 3 FIRs were mentioned before Column 5(i) in the nomination form. 8. The learned counsels for the petitioner have placed reliance upon a judgment rendered by the Apex Court in case titled as State of West Bengal and others versus The Committee for Protection of Democratic Rights West Bengals and others, reported in 2010(3) SCC 571. The relevant paragraphs of the judgment (supra) become extracted hereinafter. "35. As regards the power of judicial review conferred on the High Court, undoubtedly they are, in a way, wider in scope. The High Courts are authorised under Article 226 of the Constitution, to issue directions, orders or writs to any person or authority, including any government to enforce fundamental rights and, "for any other purpose". It is manifest from the difference in the phraseology of Articles 32 and 226 of the Constitution that there is a ma....
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.... upon a judgment rendered by the Apex Court in case titled as Public Interest Foundation and others versus Union of India and another, reported in 2018 AIR (Supreme Court) 4550. The relevant paragraphs of the judgment (supra) become extracted hereinafter. "113. In Resurgence India v. Election Commission of India33, referring to the precedents, this Court ruled thus:- "20. Thus, this Court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in Parliament and such right to get information is universally recognised natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution. It was further held that the voter's speech or expression in case of election would include casting of votes, that is to say, voter speaks out or expresses by casting vote. For this purpose, information about the candidate to be selected is a must. Thus, in unequivocal terms, it is recognised that the citizen's right to know of the candidate who represents him in Parliament will constitute an integral part of Article 19(1)(a) of the Constitution of India and any act, which is derogative ....
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....time in order to infuse the culture of purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that 'we shall be governed no better than we deserve, and thus, complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizenry. Be it clearly stated that informed choice is the cornerstone to have a pure and strong democracy." 10. The learned counsel for the petitioner has also placed reliance upon a judgment rendered by the Apex Court in case titled as Satish Ukey versus Devendra Gangadharrao Fadnavis and another, reported in 2019 (4) RCR (Civil) 809. The relevant paragraphs of the judgment (supra) become extracted hereinafter. "19. A cumulative reading of Section 33-A of the 1951 Act and Rule 4-A of the 1961 Rules and Form-26 along with the letters dated 24.8.2012, 26.9.2012 and 26.4.2014, in our considered view, make it amply clear that the information to be furnished under Section 33- A of the 1951 Act includes not only information mentioned in clauses....
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....dismissed as such. Submissions of the learned senior counsels for respondent No. 5 12. The learned senior counsels for respondent No. 5 have argued that the petitioner has not approached with clean hands by not disclosing the correct facts, and, that he has no locus standi to file the present petition as a Public Interest Litigation. They have further argued that the present petition is a motivated petition deliberately filed at the time when the election process has already commenced. The learned counsels has argued that the first prayer made in the instant petition is not maintainable, and, that this Court should not interfere in the investigations through the exercisings of powers under Article 226 of the Constitution of India. They rest the above submission on the ground, that there is no FIR by any of the home buyer against respondent No. 5, and, that respondent No. 5 has given complete disclosures. Furthermore, they have argued that respondent No. 2 has issued summons under Section 50 of the PML Act upon respondent No. 5, and, that respondent No. 5 rather on multiple occasions has joined the enquiry/investigation. Subsequently respondent No. 2 again issued summons under....
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....sion of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167 (3) of the Code. Since warrant is and can be issued for appearance before the Court only and not before the police and since authorisation for detention in police custody is neither to be given as a matter of course nor on the mere asking of the police, but only after exercise of judicial discretion based on materials placed before him, Mr. Desai was not absolutely right in his submission that warrant of arrest under Section 73 of the Code could be....
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....tion 437 of the Code and the judgment of this Court in Gurcharan Singh and others v. State (Delhi Administration). Section 437 of the Code applies when an accused suspected of committing a non-bailable offence is arrested or detained without warrant by a police officer in charge of a police station or is brought before a court, other than the High Court or the Court of Sessions. It is observed that the accused would be released on bail, except for in cases specified in clauses (i) and (ii) of Section 437(1) of the Code. Section 437(1)(i) applies at the stage of initial investigation where a person has been arrested for an offence punishable with death or imprisonment for life. Section 437(1)(ii) imposes certain fetters on the power of granting bail in specified cases when the offence is cognizable and the accused has been previously convicted with death, imprisonment for life, or 7 years or more, or has previously been convicted on two or more occasions for non-bailable and cognizable offences. The power under Section 437(1) of the Code is exercised by the court, other than the High Court or the Sessions Court. In other cases, Section 437(3) of the Code will apply. Gurcharan Singh ....
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.... hereinafter. "In view of the above discussion, though the jurisdiction of the High Court is not barred to entertain a writ petition, but it is a judicial restraint to interfere in the elections once the election process is set in motion. This is so in the line on the interpretation of Article 329 of the Constitution pertaining to elections to the Parliament and Legislative Assemblies and Article 343 ZG in respect of elections to the Municipalities. Therefore, the rule of law, which has been adopted consistently, is that after the election process is set in motion, this Court in exercise of the powers under Article 226 of the Constitution will not interfere in the election process. Though in terms of Prithvi Raj's case (supra), we find that after the elections are concluded, there is power of judicial review, but normally since the Statute has provided effective alternative remedy; it is the said remedy, which should be availed rather than the extra ordinary writ jurisdiction of this Court. Thus, we find that invocation of writ jurisdiction of this Court was misconceived and untenable." 17. Reliance has also been placed upon a judgment rendered by the Apex Court in ....
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....erred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed. (3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a [Special Court or] Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the [Special Court or] Magistrates Court." 19. Insofar as the judgments relied upon by the learned counsel for the petitioner rendered in Public Interest Foundation's case (supra), the thereins expressed mandate, with respect to a right inhering in a voter to get information about the credentials of the candidate, who contest elections, thus foists the requisite locus standi in the present petitioner. Conspicuously, when the said invested right in a voter is stated thereins to be an ensual of the concept of democracy, and, is stated to be an integral part of Article 19(1)(a) of the Constitution of India. Moreover when ....
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....ated 29.9.2023, became challenged by Sikander Singh by filing CRM-M-51250- 2023. During the pendency of the petition (supra), this Court vide order dated 13.10.2023, directed accused Sikander Singh to join investigations before the ED. Subsequently vide verdict dated 26.2.2024, passed by this Court upon CRM-M-37710-2023 and upon CRM-M-51250-2023, the supra became dismissed, besides therebys the order dated 29.9.2023, as made by the Special Court concerned, and, therebys also the recording of ECIR became upheld by this Court. Being aggrieved from the order (supra) passed by this Court, accused Dharam Singh preferred SLP (Crl) 3867 of 2024 before the Hon'ble Supreme Court, which was dismissed as withdrawn on 6.5.2024 and, the order dated 26.2.2024 passed by this Court was upheld. The Apex Court had also directed the ED that if it intended to arrest Dharam Singh, it may take the permission of the Hon'ble Supreme Court. Resultantly, ED filed an application seeking permission to arrest the petitioner. However, on the next date after lengthy arguments, as the Apex Court was not inclined to entertain the petition, thereupon the petitioner Dharam Singh withdrew the SLP, and, as such the SL....
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....ainst Dharam Singh Chhoker, rather became fully empowered to to arrest the said accused concerned, especially when the said case embodied thereins non-bailable offences. However, he failed to do so. Submission of the learned senior counsels for respondent No. 5 25. Though, the learned senior counsels for respondent No. 5 have vigorously contended, that in terms of paragraph 41 of the verdict rendered by the Apex Court in Arvind Kejriwal's case (supra), that the power to arrest, as conferred under Section 19(1)(a) of the PML Act vis-a-vis the Enforcement Officer rather can be validly exercised only when the material with the designated officer, enables him to form an opinion, but by recording reasons in writing that the arrestee is guilty. 26. In sequel, even after the concurrent orders of dismissal becoming passed, respectively by the learned Special Judge concerned, and, by this Court, upon the application filed under Section 438 Cr. P.C. by respondent No. 5, wherebys post the dismissal of the SLP (supra), he claimed the indulgence of anticipatory bail in ECIR/GNZO/20/2-21 dated 16.11.2021, they yet submit that the said orders of dismissal, did also yet require in terms o....
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....ainst the accused concerned, became upheld by this Court. 29. In consequence, the argument (supra) raised by the learned senior counsels for respondent No. 5 is bereft of vigour, and, the same is required to be rejected. 30. The making of concurrent orders of dismissal respectively by the Special Judge concerned, and, by this Court upon the application for anticipatory bail moved by respondent No. 5, to the objective mind of this Court, is a reckoner for further concluding, that there bys this Court had formed an opinion, that prima facie a non-bailable offence has been committed by respondent No. 5. Resultantly, the said concurrently made rejection orders do prima facie also render an opinion that respondent No. 5 had prima facie committed a non-bailable offence, and, as such for aiding the making of investigations into the offence committed by respondent No. 5, thus there were but naturally the requisite reasons to believe with the investigating officer concerned, thus to cause his arrest. 31. In sequel, the effect of the above, especially when the said orders are not demonstrated to be quashed and set aside by the Hon'ble Supreme Court, is that, the investigating office....
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....e arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71." 34. Conspicuously, besides reiteratedly when he was not concealing or hiding himself but was openly canvassing for his candidature to the assembly seats Samalkha, therebys but obviously the said motions and the consequent thereto passing of the orders, do garner a conclusion, that in the garb of the ED motioning the learned Special Court concerned, for the respective issuances of warrants of arrest, and, for the passing of the orders for declaring him a proclaimed offender, thus intended to camouflage its complete inaction and indolence, in arresting Dharam Singh C....