1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. CIVIL WRIT PETITION(PIL)NO.5708 of 2005 For Approval and Signature : HONOURABLE THE CHIEF JUSTICE MR.J.M.PANCHAL HON'BLE MR.JUSTICE BHANWAROO KHAN ====================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================================== Harji Ram Choudhary - Petitioner Versus Union of India & Ors. - Respondents ====================================================== Appearance : None present for the petitioner Mr. M.S. Singhvi, for the respondents. Mr. S. Ladhrecha, Addl.G.A. Mr. V.K. Mathur, for Union of India. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR.J.M.PANCHAL and HONOURABLE MR.JUSTICE BHANWAROO KHAN Date : September 27, 2007 ORAL ORDER (Per : HONOURABLE THE CHIEF JUSTICE MR.J.M.PANCHAL) By filing the instant public interest litigation under Article 226 of the Constitution, the petitioner has prayed to issue an appropriate 2 direction to the Police Department of the State including the Home Secretary to immediately arrest the respondent no.11 by executing non-bailable warrant pending with the authorities of the State for nearly last 10 years. The petitioner has further prayed to issue appropriate directions to the Election Commission of India as well as Chief Election Officer, Rajasthan State to initiate legal action against the respondent no.11 under Section 33 (A) and 125(A) of the Representation of People Act, 1952. It is also prayed by the petitioner to initiate appropriate proceedings against the said respondent for disqualifying him from contesting any election for the time as provided by law. The petitioner has also prayed to direct the authorities to initiate criminal proceedings against the respondent no.11 under Section 193 and 417 IPC. Lastly, the petitioner has prayed to initiate an enquiry into the matter of non-execution of non-bailable warrant issued against the respondent no.11 including the then Chief Secretary, Home Secretary, Collector, Jalore as well as Superintendent of Police, Jalore. According to the petitioner, the respondent no.11 is a known smuggler of Gold, Silver, Drugs, Electronic items, etc. and therefore criminal cases have instituted against him which are pending in different courts at Mumbai. What is claimed by the petitioner is that the respondent no.11 is declared absconder against whom non-bailable warrants have been issued by the learned Chief Metropolitan Magistrate, Mumbai which are pending for execution since several years. It is asserted by the petitioner that the respondent no.11 had filed an affidavit at the time of submitting his nomination papers from Bhinmal 3 constituency while contesting election as M.L.A. which is contrary to the provisions of the Representation of People Act, 1952. It is also averred by the petitioner that the respondent no.11 was detained under COFEPOSA Act by an order dated July 29, 1994, and therefore could not have contested the election as M.L.A. Under the circumstances, the petitioner has filed the instant petition and claimed the reliefs to which reference is made earlier. On service of notice, the respondent no.11 has filed detailed reply controverting the averments made in the petition. What is stated by the said respondent in the reply is that with reference to non- bailable warrant issued by the learned Chief Metropolitan Magistrate, Mumbai, he was released on bail vide order dated November 29, 2005 passed by the learned Chief Metropolitan Magistrate, Mumbai, and therefore it is wrong to say that the non-bailable warrant is pending against him and should be executed by the authorities. It is also pointed out by him that at the time of submitting nomination papers, no charge-sheet was submitted against him for offences punishable under the provisions of the Customs Act whereas the detention order was revoked by the appropriate Government, and therefore, no case is made out by the petitioner to initiate any legal action against him under Section 33(A) and 125(A) of the Representation of People Act, 1952. What is asserted by the respondent no.11 in his reply is that he has not incurred any disqualification from contesting any election, and therefore no directions should be issued to the respondents to initiate any action for disqualifying him from contesting any election. It is further mentioned by the said respondent in his reply 4 that no case is made out for initiating proceedings against him under Section 193 and 417 IPC nor any case is made out for ordering an enquiry into the matter of so called execution of non-bailable warrant by the authorities, and therefore the petition should be dismissed. It may be mentioned that initially the petitioner was represented by his learned lawyer Mr. M.S. Raghaw. The Court is informed by the learned counsel for the respondents that now Mr. M.S. Raghaw is appointed as Additional Advocate General for the State of Rajasthan and would not be able to appear against the State Government and other authorities. The order-sheet would indicate that Mr. D.R. Loonkar, learned advocate had appeared for the petitioner and thereafter another lawyer Mr. Manoj Rathore had appeared for the petitioner. When the case was called out for hearing, no one has remained present on behalf of the petitioner nor the petitioner himself is personally present to argue the case. The learned counsel for the respondents have asserted that in fact this is not a public interest litigation but the petition is filed to ventilate personal grievances which have no substance, and therefore the petition should be heard on merits. Under the circumstances, this Court has considered the merits of the matter with the assistance of learned advocates for the respondents. This Court has also taken into consideration the documents forming part of the petition. As far as the first prayer namely, to direct the Police Department and Home Secretary to immediately arrest the respondent no.11 by executing 5 non-bailable warrant, is concerned, this Court finds that the respondent no.11 was enlarged on bail with reference to said non-bailable warrant by learned Chief Metropolitan Magistrate, Mumbai vide order dated November 29, 2005. Therefore, the first prayer has become infructuous and is accordingly refused. So far as the second prayer namely, to issue directions to the Election Commission of India and the Chief Election Officer Rajasthan State to initiate legal action under Section 33(A) and 125(A) of the Representation of People Act is concerned, this Court finds that at the time when the nomination papers were submitted by the respondent no.11, no charges were framed against the respondent no.11 under the provisions of the Customs Act whereas the detention order passed against him was revoked on April 26, 1999, and therefore it is difficult to conclude that wrong informations were furnished by the respondent no.11 in the year 2003 when he had submitted nomination papers. Thus, no case is made out by the petitioner to direct the Election Commission of India or the Chief Election Officer Rajasthan State to initiate legal action against the respondent no.11 under Section 33(A) or 125(A) of the Representation of People Act, 1952. It is not established by the petitioner that the respondent no.11 has incurred disqualification from contesting any election at all, and therefore the third prayer is also liable to be refused and is accordingly refused. As far as prayer to initiate criminal proceedings against the respondent no.11 under Section 193 and 417 of the IPC is concerned, this Court finds that no case is made out by the petitioner to initiate any criminal action against the respondent no.11 nor any case is made out to order an enquiry into the matter of non-execution 6 of non-bailable warrant issued against the respondent no.11 by various authorities of the State Government. The net result of the above discussion is that this Court does not find any substance in the petition, and therefore the petition is liable to be dismissed. For the foregoing reasons, the petition fails and is dismissed. Notices are discharged. There shall be no order as to costs. [BHANWAROO KHAN ],J. [J.M.PANCHAL],CJ. Praveen