BREAKING| Bombay High Court Refuses Temporary Release Of Nawab Malik & Anil Deshmukh For MLC Elections

Justice NJ Jamadar passed the order on an interim application in Deshmukh's bail plea and a fresh petition filed by Malik merely seeking permission to cast his vote using police escorts.

The NCP ministers are in judicial custody in separate money laundering cases being investigated by the enforcement directorate. The agency resisted their applications citing the bar under the section 62(5) of the Representation of People's Act that prohibits a person confined in prison from voting in an election.

"But election to the MCL is an indirect method of voting. In this case, would it not be depriving the electoral/ citizens of their constituency from participating in the elections?" Justice Jamadar had asked during the arguments.

Senior Advocate Amit Desai submitted that there wasn't a complete bar on voting under 62(5) of the RP Act and only if the person was confined in prison, could he be restrained from voting. However, this physical defect could be removed by granting temporary bail to vote.

"Nothing stops the court from using its discretion. An accused can file his nomination for election, but the court will not permit him to vote in the same election? This dichotomy was never intended in law. The law must be construed harmoniously. The court will lean in favour for the democratic and political process to continue," he said and gave several illustrations wherein prisoners were allowed to go for oath taking ceremonies and even campaign for elections.

"Can it be said that an undertail, where there is a presumption of innocence, is deprived of his ability to participate in the democratic process to vote?"

Senior Advocate Vikram Chaudhri said that the question before the court was, would it would allow Deshmukh's release for a couple of hours and not interpreting the ambit of section 62(5) RP Act.

"My right to vote may have been curtailed but no legislation restricts the court from exercising its jurisdiction and ordering release," he said.

However, ASG Anil Singh opposed their submissions and said that the Act shows an embargo to vote. "When there is a prohibition in law, where is the question of exercising discretion?"

He submitted that the twin conditions for bail under 45 (D) of PMLA would also apply. "Under a democratic process, we cannot change the law, we can only interpret it."

However, Chaudhri ended his argument by saying, "It is a very dangerous proposition to say that the court doesn't have the discretion to grant release. It's my fettered right vs your lordships unfettered discretion."

Only last week, the Special PMLA court refused permission to both NCP leaders, Anil Deshmukh and Malik from being temporarily released to cast their vote in the Rajya Sabha Elections on June 10, 2022.

The judge observed that under section 62(5) of the Representation of Peoples Act, not only a convict but also an undertrial would be barred from voting.

According to the ED, Deshmukh had misused his position as state home minister and collected Rs 4.70 crore from various bars in Mumbai through some police of officers. He was arrested in November 2021,

Malik was arrested by the ED on February 23 this year in a money laundering case linked to the activities of fugitive gangster Dawood Ibrahim and his aides.