JUDGMENT 1. 1. This writ petition has been filed challenging the Constitutional validity of Section 19 (gg) of the Rajasthan Panchayati Raj Act, 1994. Though In the prayer portion, reference has also made to Probation of Offenders Act and Article 243-F of the Constitution of India on being constitutionally invalid, submissions were confined to Section 19 (gg) of the Panchayati Raj Act alone. 2. Section 19 refers to qualification for election as a Panch or member of the Panchayat Raj Institution. Clause (gg) lays down that a person, facing trial in a criminal case against whom cognizance has been taken and charges have been framed for any offence punishable with Imprisonment for five years or more, shall not be eligible for such election. It may be mentioned at the outset that validity of Clause (gg) of Section 19 has been upheld by this Court in Shivram v. State of Rajasthan, AIR 2000 416 (Raj) observing that the provision is a measure of purification of democratic process, it has been held therein that severity of punishment provided by law is directly proportionate to the seriousness of the offence and, therefore, it is permissible to draw cut off line for offences punishable with of imprisonment for five years and the such offences can be classified as a distinct category. Clause (gg) comes into play at a stage when the correctness' of the allegations constituting the offence has been thoroughly investigated by the police and stood the test of judicial - scrutiny by way of framing of charges. 3. This petition is thus another attempt to challenge the validity of the provisions. The challenge in the instant case is more on the analogy of Clause (g) of Section 19 than on the ground of any inherent invalidity. It would be appropriate to quote the relevant provisions as under: "19. Qualification for election as a Panch or a member: Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person (a)................. Qualification for election as a Panch or a member: Every person registered as a voter in the list of voters of a Panchayati Raj Institution shall be qualified for election as a Panch or, as the case may be, a member of such Panchayati Raj Institution unless such person (a)................. (g) has been convicted of any offence by a competent Court and sentenced to imprisonment for six months or more, such sentence not having been subsequently reversed or remitted or the offender parddned; (gg) is under trial in the competent Court which has taken cognizance of the offence and framed the charges against him of any offence punishable with imprisonment for five years or more: 4. The submission of Shri M.S. Purohit learned Counsel for the petitioner is two fold. Firstly, it is submitted, when as a person sentenced to imprisonment for less than six months, even if offence was punishable with imprisonment for five years or more, can contest the election, another person against whom merely charges has been framed for offence punishable with imprisonment for five years or more cannot contest the election in terms of Clause (gg). Secondly, it IS submitted, in terms of Proviso 2 (II) to Section 19; a person otherwise not qualified to contest the election by reason of the sentence of imprisonment for more than six months, becomes eligible to contest the election after six years from the date of election, another person simply facing criminal charge albeit for the offence punishable with imprisonment for five years or more is not eligible. 5. In course of hearing, our attention was drawn to the fact that the petitioner has already been acquitted In the' criminal case, the pendency of which gave rise to the dispute about his eligibility to contest the election. In view of the provisions of Clause (gg), the eligibility/qualification has to be considered with reference to the date of election or filing of the nomination and, therefore, the submission to the above effect has to be summarily rejected. 6. In view of the nature of the controversy raised on behalf of the petitioner, it is not necessary to state facts of the case. Suffice it to say that the petitioner was elected as Sarpanch of Gram Panchayat, Serna, Tehsil Srldoongargarh at the election held on 4.2.2005. 6. In view of the nature of the controversy raised on behalf of the petitioner, it is not necessary to state facts of the case. Suffice it to say that the petitioner was elected as Sarpanch of Gram Panchayat, Serna, Tehsil Srldoongargarh at the election held on 4.2.2005. The election came In under challenge at the instance of an unsuccessful candidate Chimnaram respondent No. 4 herein, by way of election petition under Rule 80 of the Rajasthan Panchayati Raj Rules, 1994. lie stated in the election petition that on 19.2.2000 F.I.R. No. 33 under Sections 325, 365, 307, 147, 148, 149, 323/120-B I.P.C. was registered against the petitioner and others. At the close of the investigation, the Police submitted charge-sheet under Section, 120-B 1.P.C. against the petitioner, while against the rest of the accused, charge-sheet was submitted under Sections 395, 365, 307, 323, 147, 148 and 149 I.P.C. On 6.11.2003, the Additional Sessions Judge (Fast Track) No. 2, Bikaner framed charges. Among other charges, charge under Section 120-B was framed against all the accused including the petitioner. As cognizance has been taken and charges have been framed for offence under Section 120-B, the petitioner was not eligible to contest the election and the result was, therefore, fit to be set aside. 7. The election petition is pending before the Election Tribunal. During its pendency, the petitioner has approached this Court seeking declaration that Section 19 (gg) itself is ultra vices. If the provision is held to be ultra vires, obviously, the election petition would be rendered infructuous. That is significance of this writ petition in real terms so far as the petitioner is concerned. 8. At this stage, it may be mentioned that Section 120-B of the I.P.C, provides for the same punishment as provided for the main offence. It lays down "120-B. Punishment of criminal conspiracy: Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence." 9. In the instant case, the main offence being Section 395 of the I.P.C., among other offences, in the event of conviction, sentence of imprisonment for life or rigorous imprisonment for a term upto ten years can be awarded. Tile conviction under Section 120-B therefore, may visit the accused with the same sentence, that is, imprisonment for life or rigorous imprisonment upto ten years, thus, where the charge has been framed for offence under Section 120-B read with Section 395 I.P.C., the case would fall within the mischief of Clause (gg) of Section lo of the Act. 10. Before considering the submissions of the Counsel, it may be mentioned the Article 243-F brought in the Constitution of India by the 73rd amendment provides for disqualification for membership of a Panchayat. Clause (2) thereof provides that if any question arises as to whether a member of Panchayat has become subject to any of the disqualification mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide. In the light of Clause (2) of Article 243-F, disqualifications for membership of the Panchayat in the State of Rajasthan have been specified in Section 19 of the Panchayat Raj Act and provisions reading to election dispute in the light of Clause (2) of Article 243-F are contained in Rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994. Rule 80 provides: "80. Manner of challenging an election under the Act. An election under the Act or under the Rules may be called in question by any candidate at such election by presenting a petition to the District Judge having jurisdiction within thirty days from the date on which the result of such election is declared, on any one or more of the following grounds; (a) that on the date of election, a returned candidate was not qualified or was disqualified, for such election. (b).......... (c).......... (d).......... (e).......... (f).......... 11. It would thus appear that Section 19 of the Act as signed the entire Act and the Rules framed thereunder has been framed in fulfillment of the constitutional mandate. 12. (b).......... (c).......... (d).......... (e).......... (f).......... 11. It would thus appear that Section 19 of the Act as signed the entire Act and the Rules framed thereunder has been framed in fulfillment of the constitutional mandate. 12. Adverting to the submissions of Counsel, as a general proposition, it does appear that if a person though charged with an offence punishable with imprisonment for five years or more can contest the election- if he has been awarded the sentence of imprisonment for less than six months, another person who is simply facing a criminal charge for similar offence should not be disqualified from contesting the election. Merely because the particular offence Is punishable with imprisonment for five years or more does not mean that the person would be awarded such punishment. Maximum punishment provided for the offence is seldom awarded. However, in the eye of law such an argument is purely hypothetical having no substance. The severity of offence is always determined on the basis of the maximum punishment provided for the offence. That is how Section 302 I.P.C., is considered to be more serious offence than the offence under Section 396 even though Section 396 involves the offence of murder as well as dacoity because for the offence under Section 396, the accused may be awarded lesser sentence of rigorous imprisonment which may extend upto ten years, for the offence under Section 302, In the event of conviction, the .accused cannot escape the sentence of imprisonment for life. 13. The fact that the accused is awarded a lesser sentence and not the maximum sentence provided for the offence does not mitigate the severity or seriousness of the offence in the eye of law. The offence which are punishable with imprisonment for five years or more are to be treated as more serious in nature than the offences punishable with imprisonment for lesser term irrespective of the sentence actually awarded to the accused. 14. The distinction between Clause (g) and (gg) thus, would appear to stand on a rational basis. The offence which are punishable with imprisonment for five years or more are to be treated as more serious in nature than the offences punishable with imprisonment for lesser term irrespective of the sentence actually awarded to the accused. 14. The distinction between Clause (g) and (gg) thus, would appear to stand on a rational basis. The submission of the Counsel proceeds on the assumption or hypothesis that even though the person may have been prosecuted and put on trial for a serious offence punishable with imprisonment for five years or more is -actually awarded sentence of imprisonment for less than six months on his conviction, but though this may be a possibility, it, cannot be the basis of judge the severity or seriousness of the offence contemplated in Clause (gg.). It is to be kept in mind that Clause (gg) comes into play only after allegations have been verified by the investigating agency and prima facie case found against him by the Court at the stage of framing of charge. Thus, during pendency of the trial, one cannot proceed on the basis of assumption and the possibility that the accused may be awarded lesser sentence. If a prima facie case has been found against a person of having committed more serious offence for which he can be awarded sentence of imprisonment for five years or more, he can be treated on different footing. Serious offences for which sentence of imprisonment for five years or more certainly constitute a separate class compared to less serious offences. Thus, we are of the view that provisions of Clause (g) and (gg) rest on rational differentia having nexus with objects sought to be achieved and therefore, Clause (gg) cannot be said to be violative of Article 14 of the Constitution of India. 15. As regards the submission that in terms of Proviso (II) of the second proviso to Section 19, a person otherwise not eligible for election in terms of Clause (g), becomes eligible after lapse of six years from the date of conviction, the provision appears to take Into account the mitigating nature of conviction and sentence with the passage of time. As regards the submission that in terms of Proviso (II) of the second proviso to Section 19, a person otherwise not eligible for election in terms of Clause (g), becomes eligible after lapse of six years from the date of conviction, the provision appears to take Into account the mitigating nature of conviction and sentence with the passage of time. We are of the view that the question whether the effect of conviction in a criminal case should continue after six years so as to disqualify the person for contesting an election is a matter of State policy with which the Courts may not interfere. In any case, the provision has no bearing on the reasonableness of provisions of Clause (gg) of Section 19. 16. It is true that the petitioner stands acquitted of the charge but this is a fact which prima facie does not appear to be relevant. As regards the effect of acquittal, It would not be proper to express' our concluded opinion inasmuch as the election petition Is pending before the Tribunal. Prima fade, we are of the view that the subsequent acquittal of the person may not have bearing as the applicability of Clause (gg) of Section 19 would depend on the facts as obtaining on the date of filing of the nomination or the date of election. We leave this aspect open to be decided by the Election Tribunal. 17. We are of the view that the case is covered by the decision in Shiv Ram v. State of Rajasthan (supra), and on the grounds urged on behalf of the petitioner, no other view can be taken. 18. In the result, the writ petition being devoid of merit Is accordingly dismissed.Petition dismissed. *******