Surendra Singh and Others Vs. State of U.P. and anr. - Court Judgment

Excerpt:
[altamas kabir; cyriac joseph, jj] - karnataka legislative assembly (disqualification of members on ground of defection) rules, 1986 rule 6 -- all the above-mentioned appeals arise out of the order dated 10th october, 2010, passed by the speaker of the karnataka state legislative assembly on disqualification application no.1 of 2010, filed by shri b.s. yeddyurappa, the legislature party leader of the bharatiya janata party in karnataka legislative assembly, who is also the chief minister of the state of karnataka, on 6th october, 2010, under rule 6 of the karnataka legislative assembly (disqualification of members on ground of defection) rules, 1986, against shri m.p. renukacharya and 12 others, claiming that the said respondents, who were all members of the karnataka legislative assembly, would have to be disqualified from the membership of the house under the tenth schedule of the constitution of india. in the interest of the state and the people of karnataka i hereby express my lack of confidence in the government headed by shri b.s. yeddyurappa and as such i withdraw my support to the government headed by shri b.s. yeddyurappa the chief minister. five independent mlas also expressed lack of confidence and withdrew support to the government led by shri b.s. yeddyurappa. having said this, the appellants submitted that the notice was in clear violation of the disqualification rules, 1986, and especially rules 6 and 7 thereof. the speaker took up the disqualification application no.1 of 2010 filed by shri b.s. yeddyurappa, the respondent no.1 herein, along with the replies to the show-cause notices issued to the thirteen mlas, who had submitted individual letters to the governor indicating their withdrawal of support to the government led by shri yeddyurappa. except for shri m.p. renukacharya and shri narasimha nayak, all the other mlas were represented by their learned advocates before the speaker. answering the aforesaid issues, the speaker arrived at the finding that after having been elected from a political party and having consented and supported the formation of a government by the leader of the said party, the respondents, who are the appellants herein, other than shri m.p. renukacharya and shri narasimha nayak, had voluntarily given up their membership of the party by withdrawing support to the said government. in support of the same, the speaker relied on media reports and the affidavit filed by shri eswarappa. the speaker recorded that the same had not been denied by the appellants herein. the speaker also observed that the governor never elects the leader of the legislature party. yet another decision relied upon by the speaker was the decision in rajendra singh rana & ors. the speaker was of the view that by their conduct the appellants had voluntarily given up the membership of the party from which they were elected, which attracted disqualification under the tenth schedule. the speaker then took note of the retraction by shri m.p. renukacharya and shri narasimha nayak, indicating that they had no intention of withdrawing support to the government led by shri yeddyurappa and that they extended support to the party and the government and their elected leader. the speaker then took up the objection taken on behalf of the appellants herein that the show-cause notice to the appellants had been issued in violation of the provisions of rules 6 and 7 of the karnataka legislative assembly (disqualification of members on ground of defection) rules, 1986, hereinafter referred to as "the disqualification rules,1986", inasmuch as, they were not given seven days' time to reply to the show-cause notice, as contemplated by rule 7(3) of the aforesaid rules. on the basis of his aforesaid reasoning, the speaker rejected the objection filed on behalf of appellants and went on to disqualify the appellants herein under paragraph 2(1)(a) of the tenth schedule to the constitution with immediate effect. the application seeking disqualification of shri m.p. renukacharya and shri narasimha nayak was dismissed. the learned judge held that paragraph 2 of the tenth schedule deals with disqualification of members of the house. the learned judge also held that paragraph 2(1) deals with disqualification of a member of a house who belongs to a political party, while paragraph 2(2) deals with disqualification of a member of a house elected as an independent. the speaker could call upon the leader who enjoyed the majority support of the members of the house to form an alternative government. what constitutes defection under paragraph 2(1)(a) of the tenth schedule is deserting the party the learned judge also considered the case of shri m.p. renukacharya and shri narasimha nayak, who were among the 13 members against whom the disqualification petition had been filed by the chief minister. (now appeals), questioned the order of the speaker dated 10th october, 2010, disqualifying the appellants from membership of the house, on grounds of mala fide and violation of rules 6(5)(b) and 7(3) of the disqualification rules, 1986, as also the principles of natural justice. furthermore, apart from mentioning that the appellants had written to the governor withdrawing their support to the government, the disqualification application does not also contain any averment that the appellants had met any person from any other political party. it was submitted that the speaker acted against all principles of natural justice and the propriety in taking on record the affidavit affirmed by the state president of the bharatiya janata party shri k.s. eswarappa, with the sole intention of supplying the inadequacies in the disqualification application filed by shri yeddyurappa. mr. nariman submitted that the speaker had applied two different yardsticks as far as the appellants and shri m.p. renukacharya and shri narasimha nayak are concerned, despite the fact that they too had written identical letters to the governor withdrawing support to the government led by shri yeddyurappa. mr. nariman submitted that once shri m.p. renukacharya and shri narasimha nayak had written to the governor expressing their decision to withdraw support to the government headed by shri yeddyurappa, the provisions of paragraph 2(1)(a) of the tenth schedule came into operation immediately and the speaker was no longer competent to reverse the same. mr. nariman submitted that at every stage the speaker had favoured shri yeddyurappa and even though rule 7(2) of the 1986 rules provided for the dismissal of the petition which did not comply with the requirements of rule 6, as in the present case, the speaker did not do so. reiterating mr. nariman's submissions, mr. rao submitted that withdrawal of support by the appellants to the government led by shri yeddyurappa did not amount to voluntarily relinquishing the membership of the bjp since the government led by a particular leader and the political party are not synonymous. mr. rao submitted that in blatant disregard of the above-mentioned rules, the speaker had entertained the defective petition filed by shri yeddyurappa in complete disregard of rules 6 and 7 of the 1986 rules. mr. rao pointed out that paragraph 100 of the decision in kihoto hollohan's case (supra) declares the speaker or the chairman acting under paragraph 6 of the tenth schedule to be a tribunal. mr. sorabjee submitted that after detailed replies had been filed by the appellants, a full- fledged hearing had been given to them and hence the appellants did not suffer any prejudice on account of the procedure adopted by the speaker in disposing of shri yeddyurappa's disqualification application. mr. sorabjee submitted that while the two mlas had retracted their letters to the governor upon reiterating their faith in the government led by shri yeddyurappa, the appellants were bent upon bringing down the bharatiya janata party government with the ulterior motive of forming a new government with the members of the opposition. mr. jain submitted that even the question of not having received the copy of the notice sent by the speaker was a clear afterthought, since detailed replies had been submitted by them and if the appellants had to differ with the functioning of shri yeddyurappa, they should have taken up the matter within the party without writing to the governor withdrawing their support to the bharatiya janata party government led by shri yeddyurappa. the facts of the case reveal that the appellants along with shri m.p. renukacharya and shri narasimha nayak, wrote identical letters to the governor on 6th october, 2010, indicating that as mlas of the bharatiya janata party they had become disillusioned with the functioning of the government headed by shri b.s. yeddyurappa. in the instant case, the appellants had in writing informed the governor on 6th october, 2010, that having become disillusioned with the functioning of the government headed by shri b.s. yeddyurappa, they had chosen to withdraw support to the government headed by shri b.s. yeddyurappa and had requested the speaker to intervene and institute the constitutional process as constitutional head of the state. this conduct on the part of the speaker is also indicative of the "hot haste" with which the speaker disposed of the disqualification petition as complained of by the appellants. there was no compulsion on the speaker to decide the disqualification application filed by shri yeddyurappa in such a great hurry within the time specified by the governor to the speaker to conduct a vote of confidence in the government headed by shri yeddyurappa. on 25th january, 1991, president's rule was revoked and shri ravi s. naik was sworn in as chief minister of goa. on the same day, one dr. kashinath g. jhalmi, belonging to the maharashtrawadi gomantak party, filed a petition before the speaker for shri naik's disqualification on the ground of defection. simultaneously with the above, the speaker, shri sirsat, was removed from the office and was replaced by the deputy speaker who began to function as speaker in his place. shri bandekar and shri chopdekar filed an application before the deputy speaker for review of the order dated 13th december, 1990, by which they had been disqualified from the membership of the house. it was in the appeal filed by shri bandekar and shri chopdekar that the issue of voluntary resignation from membership of the maharashtrawadi gomantak party fell for consideration of the high court, while in ravi s. naik's case the question was whether a valid split of the aforesaid party had been effected with shri naik forming a new party with seven other members of the said party. the other appeal filed by shri bandekar and shri chopdekar was dismissed and their disqualification by the speaker was upheld. the speaker was also requested accordingly. on the very same day, shri yeddyurappa, as the leader of the bharatiya janata legislative party in the legislative assembly, filed an application before the speaker under rule 6 of the disqualification rules, 1986, being disqualification application no.1 of 2010, for a declaration that all the thirteen mlas elected on bjp tickets along with two other mlas had incurred disqualification in view of the tenth schedule to the constitution. immediately thereafter, on 7th october, 2010, the speaker issued show-cause notices to the aforesaid mlas informing them of the disqualification application filed by shri b.s. yeddyurappa and informing them that by submitting letters to the governor withdrawing support to the government led by shri yeddyurappa, they had violated paragraph 2(1)(a) of the tenth schedule to the constitution and were, therefore, disqualified from continuing as members of the house. consequently, the disqualification application filed by shri b.s. yeddyurappa is dismissed. 1. heard learned counsel for the applicants and learned a.g.a. for the state.2. there is no need to issue notice to opposite party no.2. this application u/s 482 cr.p.c. has been filed with a prayer to quash order dated 19.1.2011 passed by addl. sessions judge / fast track court no.5, etah in s.t. no.649 of 2008, state v. surendra singh and others under sections 323, 504, 506 ipc and section 3 (1) (x) s.c./s.t. act, whereby application under section 311 cr.p.c. filed on behalf of the applicants for permission to crossexamine p.w.1 was rejected.3. the facts, as revealed by order dated 19.1.2011, are that on 19.8.2009, the case was fixed for evidence. examination-in-chief of p.w.1 biri singh was recorded before lunch and the case was posted after lunch for cross-examination. at about 2:35 p.m., the application for adjournment was moved on behalf of the defence counsel on the ground that he was busy in another court. the said application was rejected and opportunity for cross-examination of p.w.1 was closed. on 17.9.2009, application under section 311 cr.p.c. was moved by accused for opportunity of crossexamination of p.w.1, which was rejected. learned counsel for the applicants submitted that on 19.8.2009,the applicants' counsel could not appear before the trial court for cross-examination of p.w.1, as he was busy in another court and, therefore, learned trial court ought to have adjourned the case and should not have closed the opportunity for cross-examination.4. subsequently, when application under section 311 cr.p.c. was moved, the same ought to have been allowed and should not have been rejected whimsically. 5. considering the facts and circumstances of the case, this court is of the opinion that by rejecting the application under section 311 cr.p.c., valuable rights of the applicants for cross-examination of p.w.1 have been adversely effected. the accused in a criminal case cannot be punished simply for the reason that his counsel could not appear in court for the purpose of cross-examination.6. reasonable opportunity of cross-examination should always be granted to the accused. it is not the case of the prosecution that the applicants were in any manner abusing the process of law. p.w.1 was examined on 19.8.2009 and on that date, adjournment was sought by counsel for the defence and i fail to understand any reason why this adjournment should not have been granted. no doubt, the trial court is under a duty to dispose of criminal case expeditiously, but it must also be kept in mind that justice hurried is justice buried. 7. in these circumstances, the impugned order cannot be sustained and is liable to be quashed. 8. application u/s 482 cr.p.c. is allowed.9. impugned order dated 19.1.2011 is quashed.10. learned addl. sessions judge / fast track court no.5, etah isdirected to provide an opportunity to the applicants to crossexamine p.w.1 biri singh. on production of a certified copy of this order, the trial court shall fix a date for this purpose and shall summon p.w.1 for cross-examination. when p.w.1 appears before the trial court, the applicants shall be provided an opportunity for cross-examination and thereafter the case shall proceed in accordance with law.

Judgment:
1. Heard learned counsel for the applicants and learned A.G.A. for the State.

2. There is no need to issue notice to opposite party no.2. This application u/s 482 Cr.P.C. has been filed with a prayer to quash order dated 19.1.2011 passed by Addl. Sessions Judge / Fast Track Court No.5, Etah in S.T. No.649 of 2008, State v. Surendra Singh and others under sections 323, 504, 506 IPC and section 3 (1) (X) S.C./S.T. Act, whereby application under section 311 Cr.P.C. filed on behalf of the applicants for permission to crossexamine P.W.1 was rejected.

3. The facts, as revealed by order dated 19.1.2011, are that on 19.8.2009, the case was fixed for evidence. Examination-in-chief of P.W.1 Biri Singh was recorded before lunch and the case was posted after lunch for cross-examination. At about 2:35 p.m., the application for adjournment was moved on behalf of the defence counsel on the ground that he was busy in another Court. The said application was rejected and opportunity for cross-examination of P.W.1 was closed. On 17.9.2009, application under section 311 Cr.P.C. was moved by accused for opportunity of crossexamination of P.W.1, which was rejected. Learned counsel for the applicants submitted that on 19.8.2009,the applicants' counsel could not appear before the trial court for cross-examination of P.W.1, as he was busy in another Court and, therefore, learned trial court ought to have adjourned the case and should not have closed the opportunity for cross-examination.

4. Subsequently, when application under section 311 Cr.P.C. was moved, the same ought to have been allowed and should not have been rejected whimsically.

5. Considering the facts and circumstances of the case, this Court is of the opinion that by rejecting the application under section 311 Cr.P.C., valuable rights of the applicants for cross-examination of P.W.1 have been adversely effected. The accused in a criminal case cannot be punished simply for the reason that his counsel could not appear in Court for the purpose of cross-examination.

6. Reasonable opportunity of cross-examination should always be granted to the accused. It is not the case of the prosecution that the applicants were in any manner abusing the process of law. P.W.1 was examined on 19.8.2009 and on that date, adjournment was sought by counsel for the defence and I fail to understand any reason why this adjournment should not have been granted. No doubt, the trial court is under a duty to dispose of criminal case expeditiously, but it must also be kept in mind that justice hurried is justice buried.

7. In these circumstances, the impugned order cannot be sustained and is liable to be quashed.

8. Application u/s 482 Cr.P.C. is allowed.

9. Impugned order dated 19.1.2011 is quashed.

10. Learned Addl. Sessions Judge / Fast Track Court No.5, Etah isdirected to provide an opportunity to the applicants to crossexamine P.W.1 Biri Singh. On production of a certified copy of this order, the trial court shall fix a date for this purpose and shall summon P.W.1 for cross-examination. When P.W.1 appears before the trial court, the applicants shall be provided an opportunity for cross-examination and thereafter the case shall proceed in accordance with law.