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1999 DIGILAW 1243 (RAJ)

Mangi Lal v. State of Rajasthan

1999-09-29

B.J.SHETHNA

body1999
Honble SHETHNA, J.–The petitioner Sarpanch has challenged in this petition the impugned order dated 28.7.99 (Annex.1) passed by the Deputy Secretary (Enquiry), State of Rajasthan at Jaipur whereby the petitioner is placed under suspension. On the petitioner being taken on remand by the police on the charge of 19180 pouch of illicit liquor and 477 quarters of foreign liquor. (2). Learned counsel Mr. Mathur for the petitioner vehemently submitted that merely because the petitioner is arrested on the charge of illicit liquor found from him and taken on remand by the police, is not sufficient to place him under suspension, because under Sec. 38(4) of the Rajasthan Panchayati Raj Act, 1994 (for short ``the Act), there should be a trial pending in the Court of Law against the petitioner accused for an offence involving moral turpitude. He submitted that no such trial is pending against him in the Court of law because the police has not filed challan against the petitioner accused and the learned Magistrate has not taken cognizance against him in the matter so far. He, therefore, submitted that there is no trial pending against the petitioner at this stage, therefore, he cannot be placed under suspension and, therefore, the impugned order of suspension is illegal and is liable to be set aside and quashed. In support of his submission, he has placed reliance upon the judgment of this Court in the case of Narayan Lal Birla vs. State of Rajasthan (1) which is equivalent to 1997 (3) RLW (Raj.) page 1854 (2). (3). It is true that in the case of Narayan Lal (supra), the learned Single Judge of this relying upon the Supreme Court judgment in the case of Ratilal Bhanji Mithani vs. State of Maharastra (3) and in case of ``common cause, A registered Society through its Director vs. Union of India (4) held that the pendency of trial in the Court of law in the case in hand would be from the framing of the charge and not before that. In that case, no charge was framed against the petitioner and the order of suspension was issued. Under the circumstances, the learned Single Judge of this Court held that it cannot be said that criminal proceedings in regard to any offence involving moral turpitude was pending trial in the Court of law when the order of suspension was issued. In that case, no charge was framed against the petitioner and the order of suspension was issued. Under the circumstances, the learned Single Judge of this Court held that it cannot be said that criminal proceedings in regard to any offence involving moral turpitude was pending trial in the Court of law when the order of suspension was issued. Sec. 38(4) of the Act authorises he State Govt. to pass an order of suspension only when the matter is pending trial in the court. (4). In Narayan Lals case, a criminal complaint was filed by Smt. Laxmi Roshan Lal Harijan against the petitioner Sarpanch under Sec. 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act before the court of Civil Judge (Junior Division) and Judicial Magistrate, Mandle. In that case, though cognizance was taken, no charge was framed against the petitioner till 22.5.97 and the order of suspension was issued against the petitioner under Sec. 38(4) of the Act on the ground that the complaint made against the petitioner Sarpanch was registered and the petitioner was sent to jail on 24.2.97 where he remained upto 26.2.97 as there were serious charges against him after consideration of the report submitted by the Chief Executive Officer and Secretary, Zila Parishad and the State Govt. was of the view and found it proper to suspend the petitioner from the post of Sarpanch. Thus, it may be stated that though cognizance was taken by the Court against Narayan Lal, no charge could be framed against him till 22.5.97 and the order of suspension was passed by the State Government on the ground that there are serious charges against him . It is not unknown to any one that at times, false complaints are filed under Sec. 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Therefore, event after taking cognizance, the charges are not proved against the accused when it is found that the case is wholly concocted. On facts of the case, the learned Single Judge has held that the State Government could not have passed the order under Sec. 38(4) of the Act. (5). That is not the case here. According to the petitioner himself, no challan in the criminal case has been filed by the Investigating Agency against the petitioner accused so far. Though he was placed under suspension on 28.7.1999. (5). That is not the case here. According to the petitioner himself, no challan in the criminal case has been filed by the Investigating Agency against the petitioner accused so far. Though he was placed under suspension on 28.7.1999. Thus, no question of taking cognizance arises by the criminal court. Looking to the charges mentioned in the suspension order, it clearly appears that serious charges are levelled against him for having been found in possession of 19180 pouch of illicit liquor and 477 quarters of foreign liquor from him who was Sarpanch for which he was also taken on remand by the police. The Sarpanch of the Gram Panchayat is the first man and if he himself indulges in this type of anti social activities and commits an offence involving moral turpitude, then in such type of serious charges, he should be at once placed under suspension. It is unfortunate that though the petitioner was accused on 21.1.1999 for the aforesaid severe charges, he could be placed under suspension only on 28.7.99. It appears from the suspension order that this fact was brought to the notice of the authority concerned by the Additional Chief Executive Officer, Zila Parishad, Pali and thereafter only the petitioner is placed under suspension. Under Sec. 38(4) of the Act, a person can be placed under suspension against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law. The only possible interpretation to this is that one has to prove that he has not committed any such offence involving moral turpitude for which he has to face trial in the court of law or he is exonerated in the court of law. (6). Suspension is to be resorted in a case where the presence of the persons on the post becomes absolutely undesirable. Under such circumstances, the person should be immediately placed under suspension. One should not forget the fact that he is merely suspended from the office till the pendency of the trial against him and he is not removed from the office. (7). The purpose placing a person under suspension during inquiry or trial is to prevent person from indulging in similar mal-practice or serious misconduct committed by him till the completion of inquiry or trial. (8). (7). The purpose placing a person under suspension during inquiry or trial is to prevent person from indulging in similar mal-practice or serious misconduct committed by him till the completion of inquiry or trial. (8). Suspension should therefore, be resorted in such cases as early as possible and not after a long time. If suspension is not resorted immediately in serious charges of corruption, mal-practices etc., then other persons may also tempt to indulge in such type of activities, which will not be interest of anyone. (9). The Trial is explained by Full Bench of this Court in the case of Dalip Singh & Ors. vs. State of Raj.(5). It has been held in Dalip Singhs case by the Full Bench of this court that in between the court taking cognizance of the offence after committal of the case and framing of the charge, there is an enquiry and the power under Sec. 319 can be invoked before the court proceeds under Sec. 228. Thus, narrow meaning to the word pending trial cannot be given. (10). There are cases and cases where the accused can manage with the police and see to it that even challan is not filed as required by the provisions of Cr. P.C. within the fixed time limit so that they can get bail. Similarly, if the narrow view is taken to the words pending trial in the court of law, then they would even see to it that the charges are not framed by the court and the delay in framing of the charge may help them in pleading what has been pleaded in this case namely, that a person cannot be suspended unless and until the charge is framed. It may lead to an absurd situation and it may completely frustrate the very purpose of suspension. (11). In view of the above discussion. I do not find any substance on merits and accordingly, this petition fails and is dismissed.