1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 947 OF 2008 CRIMINAL WRIT PETITION NO. 947 OF 2008 CRIMINAL WRIT PETITION NO. 947 OF 2008 WITH WITH WITH CRIMINAL APPLICATION NO. 163 OF 2008 CRIMINAL APPLICATION NO. 163 OF 2008 CRIMINAL APPLICATION NO. 163 OF 2008 WITH WITH WITH CRIMINAL APPLICATION NO. 188 OF 2008 CRIMINAL APPLICATION NO. 188 OF 2008 CRIMINAL APPLICATION NO. 188 OF 2008 Mohammed Saleem Vali Mohd Qureshi, An Indian Inhabitant aged about 37 years, residing at Ward No. 25, Ghar No. 536, Kuresh Nagar, Kashi Wada, Bhiwandi, District : Thane at present lodged at Thane Central Prison, Thane. ... Petitioner Versus 1. The State (at the instance of Nijampur Police Station), 2. Municipal Secretary, Bhiwandi Nizampur City Municipal Corporation, Bhiwandi, Thane. 3. Superintendent of Thane Central Prison, Thane. ... Respondents Mr. Majeed Memon with Mr. Prakash Wagh for the Petitioner. Mr. P.S. Hingorani, A.G.P. for R. No. 1. Mr. R.S. Apte with Mr.N.R. Bubna for R. No. 2. Mr. Chetan Agarwal i/by Mr. H. Kandalkar for Intervenor. CORAM: F.I. REBELLO, & CORAM: F.I. REBELLO, & CORAM: F.I. REBELLO, & A.A. KUMBHAKONI, JJ. A.A. KUMBHAKONI, JJ. A.A. KUMBHAKONI, JJ. DATED: OCTOBER 07, 2008 DATED: OCTOBER 07, 2008 DATED: OCTOBER 07, 2008 ORAL JUDGMENT (Per F.I. Rebello,J.): ORAL JUDGMENT (Per F.I. Rebello,J.): ORAL JUDGMENT (Per F.I. Rebello,J.): 2 . Rule. Heard forthwith. . The Petitioner is an elected member of Bhiwandi Nijampura Municipal Corporation. The first meeting of the Corporation after the general election was held on 13.06.2007. On 28.5.2007, the Petitioner was arrested by the Officers of the Nijampura Police Station for the offences punishable under Section 147, 148, 149, 302, 506 (II) of I.P.C. read with Section 37(1) and 135 of the Bombay Police Act, in connection with C.R. No. I/85/2007. The chargesheet has been filed before the Sessions Court, Thane vide Sessions Case No. 361 of 2007 and the matter is pending before the court. The Petitioner since his arrest has been unable to attend the meeting of the civic body except on 17.11.2007 when according to Petitioner he was allowed to attend with due permission pursuant to the order passed by this court. The facts also reveal that the Petitioner was allowed to sign the muster roll on 16.6.2008 pursuant to the order of the court dated 16th June, 2008. 2. That order passed on Criminal Application No. 3761 of 2007, by the learned Single Judge, reads as under : "The Respondents are directed to take the 3 applicant to Bhiwandi Nijampura Mahanagarpalika, Bhiwandi on 17.11.2007 to attend the meeting at 4.00 p.m. on that day with adequate police escort and after the applicant signs the roster, he shall be taken back to the premises where he is detained." . This court was further pleased to direct the applicant to deposit Rs.5,000/- with Nizampura Police Station, Bhiwandi towards the expenses of police escort. 3. This Petition thereafter came to be filed before this court wherein reliefs prayed amongst others are by way of mandamus to direct Respondent Nos. 1 and 3 to take the Petitioner to Bhiwandi Nizampura Municipal Corporation Headquarters on 29.4.2008 under police escort to enable him to attend civic body general meeting and sign the roster on such terms and conditions as the court deems fit and proper. Further relief is to take the Petitioner to Bhiwandi Nizampura Municipal Council Headquarters at the interval of every month under police escort to enable him to attend the meeting and sign the roster on such terms and conditions as this court may direct. 4 4. Petitioner’s case is that since 17.11.2007 the Municipal Corporation held several meetings. On account of his incarceration has been deprived of attending those meetings. The Petitioner had applied before the Ad hoc Additional Sessions Judge for permission to attend the meeting on 26.3.2008. It was rejected on the same day for the reasons set out in the order. It is contended that the rejection was based mostly on the reasoning given by the learned Judge that if the applicant/accused is allowed to attend the meeting, it may lead to trouble in Bhiwandi city. The court also noted that if the applicant/accused is prevented from attending the said meeting, there is no possibility of disqualification of his Corporatorship. Since 17.11.2007 the period of six months would expire on 17.5.2008 and as such the Petitioner would stand disqualified if he fails to attend the meeting for the period of six months from 17.5.2008. The civic body does not have predetermined programmes for its meetings and some time very short notice is given for the meeting. In these circumstances, considering the provisions of Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "B.P.M.C. Act") Petitioner should be allowed to attend the meeting for both purposes i.e. to exercise his right as an councillor as also so that he does not stand disqualified. 5 5. A reply has been filed by the Assistant Police Commissioner pointing out the various cases, numbering in all 10 for various offences which are pending against the Petitioner apart from Sessions Case No. 361 of 2007. As on 16.5.2008 the period of six months as prescribed under the provisions of the B.P.M.C. Act in terms of Section 11(6)(c) has already expired and the Petitioner stands disqualified. . A reply has also been filed on behalf of Respondent No. 2. It is pointed out therein that the issue pertaining to disqualification, the Commissioner, Bhiwandi Nijampura Municipal Corporation by order dated 4.8.2008 has referred to complaints of the said Mohd. Kureshi. The matter therefore, it is set out, is pending consideration as to whether the Petitioner stands disqualified. 6. The question therefore, is whether the Petitioner considering the provisions of B.P.M.C. Act can be permitted to attend the meetings of the Corporation. 7. We may firstly refer to the relevant provisions of the B.P.M.C. Act. To consider the issue, we are 6 reproducing Sections 11 and 12. "11. A councillor shall cease to hold office as such if at any time during his term of office he, - (a) becomes disqualified for being a councillor by reason of the provisions of section 10; (b) absents himself during three successive months from the meetings of the Corporation, except from temporary illness or other cause to be approved by the Corporation; (c) absents himself from or is unable to attend the meetings of the Corporation during six successive months from any cause whatever, whether approved by the Corporation or not ; or (d) acts as a councillor or as a member of any committee of the Corporation by voting on, or taking part in the discussion of, or asking any question concerning, any matter in which he has directly or indirectly by himself or his partner any such share or interest as is described in clause (b) of 7 sub section (2) of section 10 or in which he is professionally interested on behalf of a client, principal or other person. 12. (1) If any doubt or dispute arises whether a councillor has ceased to hold office as such under section 11, such councillor or any other councillor may, and at the request of the Corporation, the Commissioner shall, refer the question to the Judge. (2) On a reference being made to the judge under sub section (1) such councillor shall not be deemed to be disqualified untill the Judge after holding an inquiry in the manner provided by or under this Act determines that he has ceased to hold office." . Considering Section 11(b), the councillor would cease to hold the office, if he absents himself during three consecutive months from the meetings of the Corporation except for temporary illness or other causes to be approved by the Corporation. It is therefore, open to the councillor to apply for leave. If leave is not granted and that too 8 arbitrarily, the party aggrieved can resort to the remedy which he may be entitled to. . Section 11(c) sets out that if the councillor absents himself from or is unable to attend the meetings of the Corporation during six successive months for any cause whatsoever, whether approved by the Corporation or not, a councillor shall cease to hold office as such. It is, therefore, clear that even if the councillor applies for leave of absence and even if that absence has been approved by the Corporation, irrespective of that if the councillor during six successive months is unable to attend the meetings such councillor stands disqualified. Section 12 then sets out that if any doubt or dispute arises whether the councillor has ceased to hold the office as such under Section 11 such councillor or any councillor may and at the request of the Corporation shall refer the question to the Judge. Under Section 2(29) the Judge means in the City of Pune, a Judge of the Court of Small Causes and in any other city the Civil Judge (Senior Division) having jurisdiction in the city. 8. The question that we have therefore, to answer is whether even if the Corporator is held for an offence and the proceedings are pending, whether it 9 will be open to this court to permit a councillor like Petitioner, to attend the meeting in order to avoid disqualification. 9. In the instant case according to Petitioner he has applied for bail which application is still pending. The issue is, however, irrespective whether the bail is granted or not, the councillor who has been charged for the offences, should be denied a right of attending the meetings of the Corporation so that he does not stand disqualified. A councillor even if he is chargesheeted for serious offences, does not cease to be a councillor except in terms of the statutory provisions. The disqualifications after being elected, are as set out under Section 11. There is no provision under the B.P.M.C. Act which holds that the councillor after being elected, if he is chargesheeted ceases to be councillor. This court in these circumstances will have to balance the rights of a Councillor to attend the meeting and the consequences of such temporary release. The Petitioner here is an under trial. To our mind the mere fact that the Corporator has been chargesheeted and is in prison as an under trial, ought not to deprive his constituency of a councillor whom they had elected and the right of such councillor who is not convicted to avoid disqualifications. The 10 Petitioner here has been chargesheeted for the serious offence and apart from that, there are several other cases pending against the Petitioner. Inspite of these offences, the Petitioner appears to have been elected. As long as the law does not bar such an individual from contesting or from being disqualified for that reason, his antecedents become irrelevant. The test then would be whether on the facts and circumstances, a councillor like the Petitioner shall be allowed to attend meetings to avoid disqualification on the ground of failure to attend meeting. 10. The next question is considering the affidavit field by Respondent No. 2, whether on the Petitioner having not attended meeting during the course of six months, he ceases or stands disqualified as councillor. The Petitioner last attended the meeting and signed the roster as Corporator on 17.11.2007. The present Petition was filed in this court on 25.4.2008. In the affidavit filed on behalf of Respondent No. 2 is annexed the order made by the Commissioner of the Corporation. That order notes that on 16.6.2008, the Petitioner was granted permission to sign the attendance register of the Corporation. That was pursuant to the order of this court. 11 . Reading of Section 11(c) would result in holding that absentism for the meetings during six successive months for whatever reasons results in automatic disqualification. In other words even if the Corporator falls sick and had been granted leave for absence by the Corporation, in attending the meeting, irrespective of such approval being granted for his absence, such Corporator can be disqualified. A person chargesheeted is not deprived of his civil rights except that he is temporarily incarcerated. Considering the nature of the offence, he may not even be released on bail. Such Corporator considering Section 11(c) in our opinion, need not be denied an opportunity of at least being present at a meeting before expiry of six months from the last meeting, under police escort, to attend the meeting and sign the muster so as not to suffer disqualification under Section 11(c). This on one hand would protect the interest of the constituents who had voted for him and his civil rights and at the same time, in case of serious criminal offence protect the witnesses from being interfered with. The other aspect is if such councillor is therefore, granted bail or acquitted by a court, he cannot be restored back to this councillorship, whereas taking the view we have taken a vacancy will not arise. 12 . The conclusion therefore, would be that we can not deny to a councillor in the absence of any material showing that public order would be affected, to prevent such Councillor from appearing at one such meeting. We make it clear that this would depend on the facts of each case and we do not construe section 11(c) to mean that this court in every case must allow such attendance. This court must bear in mind the public interest as also law and order. The offence against the Petitioner in the instant case is amongst others for the offence under Section 302. However, considering the facts and circumstances and as the Petitioner had been allowed to attend earlier two meetings and nothing untold has been pointed out to this court, on the Petitioners’ attendance on these two meetings which had resulted in law and order situation, we are inclined to mould the relief in the instant case. 12. Petition partly succeeds. We direct the Petitioner to deposit a sum of Rs.5,000/- with Respondent No. 3. On making such payment, Respondent Nos. 1 and 3 to make arrangements to permit the Petitioner to attend one meeting before the expiry of six months from the meeting last attended. Attendance at meeting hereinafter shall be subject to the decision on his disqualification which is pending before the Judge. In the event the 13 Judge holds that the Petitioner does not stand disqualified, this arrangement would continue. In the event the Judge holds that the Petitioner stands disqualified, the order directing him to be allowed to attend a meeting would become infructuous. . Rule made absolute accordingly. No order as to costs. . Criminal applications are disposed of as infructuous. (A.A. KUMBHAKONI, J.) (A.A. KUMBHAKONI, J.) (A.A. KUMBHAKONI, J.) (F.I. REBELLO,J.) (F.I. REBELLO,J.) (F.I. REBELLO,J.)