Rajasthan High Court - Jodhpur
Rami Devi vs . State Of Rajasthan & Ors. on 11 January, 2016
Author: Sangeet Lodha
Bench: Sangeet Lodha
RAMI DEVI VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10113/15)
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RAMI DEVI VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10113/15)
Dated:- 11.1.16.
HON'BLE MR.JUSTICE SANGEET LODHA
Mr.K.R.Saharan, for the petitioner.
Mr.Manish Patel, Additional Government Counsel, for the respondents.
Mr.R.S.Choudhary, for the applicants.
1. The matter comes up on an application (APPLW No.476/15) preferred on behalf of the applicants-Subhkaran and Chunni Devi for impleading them as party respondents in the matter.
2. The present matter relates to suspension of petitioner as Sarpanch, Gram Panchayat, Sadasar, by the State Government vide order dated 3.9.15 in exercise of powers conferred under Section 38(4) of the Rajasthan Panchayati Raj Act, 1994 ( for short "the Act") on account of her alleged involvement in commission of offences under Sections 420, 467, 468 and 471, 477A, 120B IPC in respect whereof an FIR has been registered at the Police Station, Bhanipura.
2. The impleadment is sought by the applicant no.1 on the ground that the proceedings were initiated against the petitioner on the complaint lodged by him. The applicant no.2 RAMI DEVI VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10113/15) 2 is the candidate who had contested the election against the petitioner.
3. In the considered opinion of this Court, the applicants have no right to inter meddle in the matter relating to suspension of the Sarpanch and therefore, the application preferred for impleadment is rejected. However, the applicant no.1 on whose complaint, the proceedings are initiated against the petitioner is permitted to intervene in the matter.
4. With the consent of learned counsel for the parties, the matter is finally heard.
5. Learned counsel for the petitioner contended that until the charges are framed by the court of competent jurisdiction and the trial commences, merely on the basis of charge sheet filed, a duly elected Sarpanch of Panchayati Raj Institution, could not have been suspended by the State Government invoking the powers u/s 38 of the Act and therefore, the order impugned passed by the State Government is without jurisdiction.
6. On the other hand, the Additional Government Counsel appearing for the respondents submitted that the charges for offences under Sections 420, 467, 468 and 471, 477A and 120B IPC having been found established against the petitioner, the order impugned passed by the State RAMI DEVI VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10113/15) 3 Government in exercise of the power conferred under sub- section (4) of Section 38 of the Act, cannot be faulted with. In this regard, learned Additional Government Counsel has relied upon a Bench decision of this court in the matter of 'Ganesha Ram vs. State of Rajasthan' (D.B.Civil Special Appeal(W) No.1038/13) dated 9.5.14.
7. I have considered the rival submissions and perused the material on record.
8. Indisputably, the charges for offences under Sections 420, 467, 468 and 471, 477A and 120B IPC having been found proved against the petitioner after due investigation, the charge sheet has already been filed by the police before the Criminal Court of competent jurisdiction. But then, it is also not in dispute that no charge has been framed by the court of competent jurisdiction against the petitioner on the basis of the charge sheet filed and the trial against the petitioner for the said offences has not commenced as yet.
9. It is to be noticed that sub-section (4) of Section 38 of the Act empowers the State Government to suspend any member including a Chairperson or a Deputy Chairperson of a Panchayati Raj Institution against whom an enquiry has been initiated under sub section (1) or against whom any criminal proceeding in regard to an offence involving moral turpitude is RAMI DEVI VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10113/15) 4 pending trial in a court of law. In other words, the power of suspension on the ground of pendency of criminal proceedings can be invoked by the State Government when the trial against the elected member or the Chairperson or Deputy Chairperson of Panchayati Raj Institution, as the case may be, has already commenced. It is settled law that the trial commences with the framing of the charge and therefore, the power of suspension under sub-section (4) of Section 38 of the Act could not have been exercised by the State Government at any earlier stage of criminal proceedings. Thus, the order impugned passed by the State Government invoking the power under sub-section (4) of Section 38 of the Act, is ex facie without jurisdiction.
10. Coming to the Bench decision of this court in Ganesha Ram's case (supra), relied upon by the Additional Government Counsel, it is pertinent to note that in the said case, though no charges were framed against the petitioner and the trial in the criminal case had not commenced against him, but then, admittedly, in exercise of the power conferred under sub- section (1) of Section 38, the inquiry was initiated by the State Government against the petitioner therein for the charges of misconduct levelled against him and therefore, the court found that there is no illegality in the action of the State RAMI DEVI VS. STATE OF RAJASTHAN & ORS.
(S.B.CIVIL WRIT PETITION NO.10113/15) 5 Government in issuing the order of suspension in exercise of powers conferred under Section 38(4) of the Act. Suffice it to say that the ratio of the Bench decision in Ganesha Ram's case (supra) does not apply to the facts of the present case.
11. In the result, the petition is allowed. The order impugned dated 3.9.15 issued by the State Government in exercise of powers conferred under sub-section (4) of Section 38 of the Act placing the petitioner, an elected Sarpanch of Gram Panchayat, Sadasar, under suspension, is hereby quashed. The respondents shall be at liberty to act in accordance with the provisions of Section 38 (4) of the Act, in case the occasion arises. No order as to costs.
(SANGEET LODHA),J.
Aditya/