Rajasthan High Court - Jaipur
Banshidhar Saini vs State Of Rajasthan And Anr. on 11 December, 1987
Equivalent citations: 1988(1)WLN270
JUDGMENT P.C. Jain, J.
1. In this writ petition, the petitioner, Bansidhar, seeks to challenge the order dated 4th May, 1987, passed by respondent No. 2, where by he has been placed under suspension in exercise of the powers available under Section 17(4A) of the Rajasthan Panchayat Act, 1953 (for short, the Act) on the sole ground that a criminal case regarding FIR No. 56/84, Police Station Jhotwara involving an offence under Sections 167, 466, 467, 468 & 120B of the Indian Penal Code is pending against him in the Court of Addl. Chief Judicial Magistrate, No. 7, Jaipur City, Jaipur.
2. Briefly stated the facts of the case are that the petitioner is a Sarpanch, Gram Panchayat, Nangal Jesa-Bohra. He was elected in the year 1981. Earlier, also, the petitioner was Sarpanch of the said Panchayat and was elected in the year 1978. On 17th April, 1984, FIR No. 56/84 was registered at the Police Station, Jhotwara, After investigation, a challan was filed and the case is pending in the Court of the Additional Chief Judicial Magistrate No. 7, Jaipur City, Jaipur, The petitioner was suspended on 4th May, 1987 by respondent No. 2, Additional Secretary (Enquiry), Rural Development and Panchayat Raj Department, Jaipur in pursuance of the powers available to the Government under Section 17(4A) of the Act. In this writ petition, the petitioner has challenged the order of suspension dated 4th May, 1987 on the ground that, though, the case is pending in the Court of Additional Chief Judicial Magistrate No. 7, Jaipur City, but so far in the criminal case no charge has been framed against the petitioner. It is submitted by the petitioner that the petitioner could not have been suspended on the ground of pendency of a criminal case against him in view of the decision of this Court in the case of T.C. Jain v. State of Rajasthan 1986 (1) WLN 703.
3. A notice was issued to the respondents to show cause as to why the writ petition should not be admitted by this Court, vide its order dated 12th May, 1987. In reply to the said show cause notice, the respondents have filed return. In the return the respondents have contended that the suspension of the petitioner was perfectly justified as the impugned order is in accordance with the provisions of law. It is further contended that Section 17(4A) applies to the facts of the case where criminal proceedings have been initiated and the respondents have placed reliance on the decision of this Court in Kewal Chand v. State .
4. Thus, the petitioner placed reliance on the decision of this Court in T.C. Jain v. State 19 6(1)WLN 703 and the respondents get support from the judgment of this Court in Kewal Chand v. State . It may be stated that both the judgments are by the same Judge and in the letter case of T.C. Jain (supra), the case of Kawal Chand (supra) has not been referred to.
5. In Bhagwan Singh v. State of Rajasthan and Am D.B. Civil Writ Petition No. 166/1986, decided on 22nd April, 1987 a Division Bench of this Court had the occasion to consider both the judgments and took the view that T.C. Jain's case was rightly decided. In Kewal Chand's case the suspension of Sarpanch of a Gram Panchayat under Section 17(4A) was held to be justified where a challan was filed, but no charge was framed, In T.C. Jain's case it was held that unless a charge is framed it cannot be said that any case is pending trial against a Sarpanch for the purpose of attracting the provisions of Section 17(4A) of the Act. Consequently, the order of suspension was held to be illegal. Before the Division Bench, a short question arose for consideration as to when in a warrant case, a trial commences and, it was held that the trial begins after framing of the charge as it is that point of time when it can be said that the accused is facing trial with respect to an offence for which he has been accused. It was also observed that the word 'trial' has no fixed or unilateral meaning and it should be construed with regard to a particular context in which it is used looking to the back-ground and the purpose behind it. In Bhagwan Singh's case (supra), it was also held by this Court that the expression 'pending trial' discloses the mind of the legislature and the intention behind Section 17(4A) seems to be that a Sarpanch of a Panchayat may be suspended when the trial court applies its mind to the merits of the case regarding framing of the charge. It was also held in that case that the word 'trial' has a meaningful purpose. The relevant part of the judgment is as follows:
In case, it is held that the power of suspension may be exercised just after the filing of the challan against the accused and, in exercise of such power, the Sarpanch is suspended by the Government and immediately thereafter no charge is framed, the consequence would be that the Government did not exercise its discretion and power properly. To eliminate such a situation if a narrow construction is put, as has been done by the same learned Single Judge in T.C. Jain's case, we are of the opinion that the purpose of empowering the Government to place a Sarpanch under suspension by invoking Section 17(4A) will be better served. Thus, in our considered opinion looking to the object for which Section 17(4A) was enacted and the phraseology used therein, particularly with reference to expression 'trial in a court of law' trial begins when the Magistrate applies his mind to the merits of the case relating to the framing of charge and a charge is framed and it is only when a charge is framed it can be said that the criminal proceeding in regard to an offence is pending trial in a court of law.
6. In Bhagwan's case, admittedly, no charge was framed and the order of suspension passed by the Government by invoking powers under Section 17 (4A) was held to be illegal. Following the ratio of the case in Bhagwan Singh's case we are of the opinion that unless a charge is framed, it cannot be said that any case is pending trial against the petitioner Sarpanch as in warrant cases, before a Magistrate, the proceedings are only inquiries upto the time when the charge is drawn up, read over and explained to the accused. It is only thereafter that the trial begins.
7. In the premises aforesaid, we allow the writ petition, and set aside the order dated 4th May, 1987 (Annx. 1) passed by respondent No. 2. The parties are left to bear their own costs.