Madhya Pradesh High Court
Dhara Singh Patel vs The State Of Madhya Pradesh on 2 April, 2019
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THE HIGH COURT OF MADHYA PRADESH
DHARA SINGH PATEL Vs. THE STATE OF MADHYA PRADESH &
OTHERS.
W.P. No. 4064/2019
Jabalpur, 02.04.2019
Shri Sanjeev Kumar Singh, learned counsel for the
petitioner.
Shri Praveen Dubey, learned Deputy Advocate General
for the respondents/State.
Shri Sanjay K. Agrawal, learned counsel for the respondent No.5.
With the consent of learned counsel for the parties, heard finally.
This petition under Article 226 of the Constitution of India is filed challenging the validity of the order dated 18.02.2019, whereby the Commissioner, Bhopal has directed the prescribed authority i.e. respondent No.3 to initiate proceedings against the petitioner under the provision of Section 39 (1) of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (in short "the Act of 1993").
Petitioner is the elected President of Janpad Panchayat Ashta since 09.03.2015. A complaint was filed by private 2 respondent No.5 before the prescribed authority for initiating action against the petitioner on the ground that petitioner has not disclosed the criminal case registered against him, in which charges have been framed against petitioner by the C.B.I. Court by order dated 03.12.2002. The competent authority/Additional Collector, Sehore enquired into the matter and dismissed the complaint by order dated 07.12.2015. Aggrieved by the dismissal of his complaint, the respondent No.5 preferred an appeal before the respondent No.2-Commissioner, who after giving opportunity of hearing to both the parties by the impugned order dated 18.02.2019 directed the prescribed authority to take appropriate action against the petitioner under the provision of Section 39 (1) of the Act of 1993.
According to the petitioner, since he is an elected President, he cannot be suspended taking recourse of Section 39 (1) of the Act of 1993. It is argued that the petitioner has continuously won the election earlier also. The private respondent No.5, has lost the election against him and, therefore, harbours enmity against the petitioner and any how wants to remove the petitioner and for this purpose has already filed an Election Petition, and simultaneously filed application under Section 39 of the Act of 1993. 3
It is further contended that the FIR has been registered against the petitioner prior to the enforcement of the Act of 1993, therefore, provision of Section 39 cannot be applied retrospectively. It is further submitted that earlier he was elected President from 2005-2010 and 2010-2015 and has successfully carried out his tenure, hence on the basis of a stale case, action under Section 39 of the Act cannot be initiated when he is carrying out the third term on the post.
Learned Deputy Advocate General for the respondents/State as well as the learned counsel for the respondent No.5, on the other hand have supported the impugned order.
Having heard the learned counsel for the parties at length and on perusal of record, it is observed that it is not in dispute that FIR No.279 dated 16.07.1993 was registered under Sections 467, 471, 472, 259 and 34 of IPC and under Section 25 of the Arms Act are pending before the C.B.I. Court and charges have been framed against the petitioner on 03.12.2002.
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Section 39 of the Act of 1993, provides for the suspension of an office bearer, in case charges have been framed against him as enumerated in the list of offences.
Section 39 of the Act of 1993 is reproduced herein as under:
"39. Suspension of office bearer of Panchayat.-(1)The prescribed authority may suspend from office any office bearer-
(a) against whom charges have been framed in any criminal proceedings under [Chapter V-A, VI, IX], IX-A, X, XII, Section 302, 303, 304-B, 305, 306, 312 to 318, 366-A, 366-
B, 373 to 377 of Chapter XVI, Section 395 to 398, 408, 409, 458 to 460 of Chapter XVII and Chapter XVIII of the Indian Penal Code, 1860 (XLV of 1860) or under any Law for the time being in force for the prevention of adulteration of food stuff and drugs. [Suppression of immoral traffic in women and children, protection of civil rights and Prevention of Corruption]; or [x x x] (2) The order of suspension under sub-section (1) shall be reported to the State Government or authorised officer within a period of ten days and shall be subject to such orders as the State Government or the authorised officer may deem fit. If the order of suspension is not confirmed by the State Government or authorised officer within ninety days from the date of receipt of such report, it shall be deemed to have revoked.
(3) In the event that the Sarpanch of Gram Panchayat, President of Janpad Panchayat or Zila Panchayat, as the case may be is suspended under sub-section (1), the Secretary or the Chief Executive Officer of the concerned Panchayat shall cause to be called a special meeting of the Panchayat immediately, but not later than fifteen days from the date of receipt of information from prescribed authority 5 and the members shall elect from amongst themselves, a person to hold the office of Sarpanch or President temporarily, as the case may be, and such officiating Sarpanch or President shall perform all the duties and exercise all the powers of Sarpanch or President as the case may be, during the period for which such suspension continues:
Provided that if the office of the Sarpanch or President is reserved for the member of Scheduled Castes or Scheduled Tribes or other Backward Classes or for a woman, the officiating Sarpanch or President shall be elected from amongst the members belonging to the same category:
Provided further that where the office of Sarpanch or President is reserved for a woman belonging to Scheduled Castes or Scheduled Tribes or other Backward Classes and there is no other woman member of the Panchayat belonging to that category who can be elected to officiate as Sarpanch or President, as the case may be, any other woman member belonging to the other reserved categories, may be elected to officiate as Sarpanch or President as the case may be.
(4) A person who has been suspended under sub-section (1) shall also forthwith stand suspended from the office of member or office bearer of any other Panchayat of which he is a member or office bearer. Such person shall also be disqualified for being elected under the Act during his suspension."
A perusal of the aforesaid makes it clear that power has been vested in the prescribed officer to suspend any office bearer, namely the Sarpanch, Up-Sarpanch, or a Panch of Gram Panchayat and President, Vice President and 6 member of the Janpad Panchayat, under the circumstances mentioned in Clause (a) of sub-section (1). Clause (a) enumerates the list of offences and it says further that if criminal proceedings have been initiated against an office bearer and charges have been framed against such office bearer in such proceedings, then the concerned office bearer may be suspended by the prescribed authority.
In the present case, it is an admitted fact that criminal proceedings against the petitioner is pending in the competent Court of 3rd Additional Chief Judicial Magistrate, Indore, charge has been framed against the petitioner under Section 259 of IPC on 03.12.2002 as per Annexure D/1. It is not in dispute that the offence for which the charge has been framed against the petitioner in the criminal case has been specified in Section 39 (1) of the Act of 1993. It is also an admitted fact that such charge has been framed prior to the filing of Form by petitioner in the year 2015, and the factum of the same has not been disclosed in his affidavit submitted along with his nomination Form.
The issue whether Section 39 (1) of the Act of 1993 can be invoked against an office bearer if the charges in a criminal case were framed prior to the election of office 7 bearer has been considered in the case of Balu Singh Vs. The State of M.P., W.P. No. 2907/2006, wherein a co- ordinate Bench of Indore High Court has held:
"It is not in dispute that the offences for which the charge has been framed against the petitioner in Criminal Case No.380/1999 have been specified in Section 39 (1)(a). The plain reading of the Section indicates that the applicability of that Section is not restricted to the framing of charge after the election as Sarpanch. Hence, there is no force in the contention of counsel for the petitioner that on the basis of the charges framed in the criminal case prior to his election, the order of suspension under Section 39 of the Panchayat Act cannot be passed."
More over, Sub-section (2) of Section 39 of the Act, provides that the order of suspension shall be intimated to the State Government within 10 days of the passing of order, and the State Government shall deal with it and pass necessary orders thereon. If it is not confirmed by the State Government within 90 days, it shall be deemed to have been revoked. It is informed to the Court by the learned counsel that in view of the pendency of the writ petition and the stay operating in favour of the petitioner, the State Government could not pass any order. It is thus clear that petition is premature as the order of suspension is subject to the confirmation by the State Government which is still pending.
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Having regard to the aforesaid, I am of the opinion that no case for interference in the impugned order is made out. This writ petition being devoid of merits, is accordingly dismissed.
(Nandita Dubey) Judge b Digitally signed by BHARTI GADGE Date: 2019.04.09 16:01:54 +05'30'