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2012 DIGILAW 1084 (MP)

Ramesh v. State of M. P.

2012-10-30

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

body2012
ORDER Shantanu Kemkar, J. 1. The petitioner was declared elected on the post of President, District Panchayat, Barwani. On account of framing of charges against him under sections 376(2) (g), along with other sections of the Indian Penal Code, the Commissioner, Indore Division passed an order on 6.1.2011, suspending him from the office of President, District Panchayat, Barwani by invoking powers under section 39 (1) (a) of the Madhya Pradesh Panchayat Raj Evam Gram Swaraj Adhiniyam, 1993 (for short ‘Adhiniyam 1993’). The said order of suspension dated 6.1.2011 was reported to the State Government as per the requirement of section 39 (2) of the Adhiniyam 1993, and the State Government, vide order dated 7.2.2011, confirmed the said suspension order dated 6.1.2011. 2. Thereafter, the trial of the charges framed against the petitioner for the offences as aforesaid, was conducted by the Special Judge, District Barwani in which, the petitioner was acquitted, vide judgment dated 28.2.2011 passed in Special Criminal Case No. 15/2010. 3. On his acquittal, the petitioner submitted a representation before the Commissioner, Indore Division seeking revocation of his suspension order dated 6.1.2011. However, before any decision could be taken by the Commissioner on the said representation, the petitioner filed a Writ Petition No. 3193/2011 before this Court, challenging the suspension order dated 6.1.2011. The learned Single Judge, vide order dated 17.10.2011, allowed the said writ petition by observing that since the petitioner has been acquitted, vide judgment dated 28.2.2011, the impugned order of suspension dated 6.1.2011 stands revoked. The learned Single Judge, accordingly, directed the respondents to reinstate the petitioner forthwith. 4. The said order dated 17.10.2011 passed by the learned Single Judge was challenged by the State Government as also by the private respondent in Writ Appeal Nos. 592/2011 and 584/2011, respectively. On 10.11.2011, interim relief was granted by the Division Bench in Writ Appeal No. 592/2011 staying the operation of the order passed by the learned Single Judge. Thereafter, both the writ appeals were disposed of by the Division Bench by common order dated 7.12.2011. The Division Bench set aside the order passed by the learned Single Judge with a direction to the Divisional Commissioner to examine the petitioner’s prayer for revocation of his suspension order keeping in view the order of acquittal, the effect of admission of criminal appeal against the said judgment of acquittal and the provision of Adhiniyam, 1993. The Division Bench set aside the order passed by the learned Single Judge with a direction to the Divisional Commissioner to examine the petitioner’s prayer for revocation of his suspension order keeping in view the order of acquittal, the effect of admission of criminal appeal against the said judgment of acquittal and the provision of Adhiniyam, 1993. The Division Bench also directed that the interim order passed by it on 10.11.2011 shall remain operative till the matter is finally decided by the Commissioner. 5. In pursuance to the order passed by the Division Bench on 7.12.2011, the Commissioner considered the petitioner’s prayer for revocation of the order of suspension dated 6.1.2011 and vide impugned order dated 10.1.2012 (Annexure P-11) rejected the said prayer for revocation of suspension on the ground that against the judgment of acquittal the criminal appeal filed by the State has been admitted. Feeling aggrieved by the order dated 10.1.2012 passed by the Commissioner, the petitioner has filed this petition. The Hon’ble Chief Justice, vide administrative order dated 17.8.2012 directed for listing the matter for hearing before the Division Bench. 6. Shri A.K. Sethi, learned Senior Counsel for the petitioner, argued that the petitioner having been acquitted for the charges levelled against him, the Commissioner should have revoked the suspension order, which was issued in view of the provision contained in section 39(1) of the Adhiniyam, 1993. In support of his contention, he placed reliance on the judgment of this Court in the case of R.N. Gupta and another vs. Jawaharlal Nehru Krishi Vishwavidyalaya, Jabalpur, 1996 MPLJ 507 and in the case of M.P. State Civil Supplies Corporation Ltd. vs. Vinod Kumar Save, 2009(1)MPWN 2= 2008(4) MPLJ 235 . According to him, after acquittal of the petitioner for the alleged offences, merely because leave to appeal has been granted to the State and the criminal appeal has been admitted by this Court, the petitioner cannot be kept under suspension. He submitted that after passing of the judgment of acquittal by the Special Judge, the petitioner, an elected President of District Panchayat, to continue as President of District Panchayat. 7. Ms. Mini Ravindran, learned Dy. Govt. Advocate on the other hand, supported the order passed by the learned Commissioner. He submitted that after passing of the judgment of acquittal by the Special Judge, the petitioner, an elected President of District Panchayat, to continue as President of District Panchayat. 7. Ms. Mini Ravindran, learned Dy. Govt. Advocate on the other hand, supported the order passed by the learned Commissioner. According to her, the judgment of acquittad was challenged by the State by filing leave to appeal, which was granted in M.Cr.C. No. 4153/2011 by the Division Bench on 26.9.2011 by admitting the criminal appeal. In the circumstances, the appeal against acquittal being admitted and is pending, the criminal proceedings against the petitioner, stood revived and, therefore, his status cannot be said to be improved merely on account of his acquittal . In support, learned Dy. Govt. Advocate has placed reliance on the judgment of the Supreme Court in the case of State of U.P. vs. Poosu and another, AIR 1976 SC 1750 . 8. Shri Yashpal Rathore, learned Counsel for the fourth respondent supporting the submissions made by the learned Deputy Government Advocate argued that the petitioner has been acquitted by giving him ‘benefit of doubt’ and now as the criminal appeal has been admitted by this Court against the judgment of acquittal the entire charges, which were framed against the petitioner, are subjudice before this Court. 9. In order to decide the controversy involved in the matter, it would be appropriate to refer the relevant provisions of Adhiniyam, 1993. Section 39 (I) (a) and sub-clause (2) of the Adhiniyam, 1993, which are relevant, read thus:- “39. Suspension of office-bearer of Panchayat. 9. In order to decide the controversy involved in the matter, it would be appropriate to refer the relevant provisions of Adhiniyam, 1993. Section 39 (I) (a) and sub-clause (2) of the Adhiniyam, 1993, which are relevant, read thus:- “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 Chapters V-A, VI, IX, IX-A, X, XII, sections 302, 303, 304-B, 305, 306, 312, to 318, 366-A, 366-B, 373 to 377 of Chapter XVI, sections 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 Preventions of Corruption; or (b) *** *** *** (2) The order of suspension under sub-section (1) shall be reported to the State Government within a period of 10 days and shall be subject to such orders as the State Government may deem fit to pass. If the order of suspension is not Confirmed by the State Government within 90 days from the date of receipt of such report it shall be deemed to have vacated.” 10. A bare reading of section 39 (1) (a) and (2) of the Adhiniyam, 1993 makes it clear that the Prescribed Authority has power to suspend from office any office bearer against whom charges have been framed in any criminal proceedings for the offences as mentioned in sub-clause (a). The order of suspension passed under sub-clause (1) is required to be reported to the State Government within the prescribed period of 10 days and shall be subject to such orders as the State Government may deem fit to pass. 11. In the present case, it is undisputed that the petitioner was suspended on account of framing of charges against him for offences, which includes offence under section 376 (2) (g) of the Indian Penal Code. It is also undisputed that within the prescribed period, the State Government had approved the order of suspension. Thus, the order of suspension dated 6.1.2011 was validly passed. It is also undisputed that within the prescribed period, the State Government had approved the order of suspension. Thus, the order of suspension dated 6.1.2011 was validly passed. Thereafter, the Special Judge of Sessions Court has passed a judgment of acquittal in favour of the petitioner on 28.2.2011, giving him benefit of doubt. It is also correct that against the said judgment of acquittal, the State had sought leave to appeal, which has been granted by this Court under section 378 (3) of the Code of Criminal Procedure and while admitting the appeal, the petitioner has been granted the bail. 12. In view of the aforesaid undisputed factual matrix, the question arises, as to whether even after a judgment of acquittal being passed in favour of the petitioner merely on account of leave to appeal being granted to the State and the criminal appeal has been admitted for hearing against the said judgment, the order of petitioner’s suspension has to be continued and it cannot be revoked. 13. In the case of R.N. Gupta and another vs. Jawaharlal Nehru Krishi Vishwavidyalaya, Jabalpur (supra), the learned Single Judge of this Court has observed that it is well settled that on a judgment of conviction against which an appeal or revision is filed, an employer or Appropriate Government, as the case may be, need not wait for taking an action against convicted employee, till the appeal or revision is decided against the conviction. In the case of M.P. State Civil Supplies Corporation Ltd. vs. Vinod Kumar Save (supra), the Division Bench has held that suspension of employee comes to an end on acquittal and merely because an appeal has been preferred against the order of acquittal the employee cannot be deemed to be under suspension. 14. In the case of State of U.P. vs. Poosu and another (supra), on which strong reliance has been placed by learned Deputy Government Advocate, the Supreme Court has observed that as soon as the High Court on perusing a petition of appeal against an order of acquittal considers that there is sufficient ground for interfering and issuing process to the respondent, his status as an accused person and the proceedings against him revive. The question of judging his guilt or innocence in respect of the charge against him, once more becomes subjudice. The question of judging his guilt or innocence in respect of the charge against him, once more becomes subjudice. These observations were made by the Supreme Court while examining the question as to “whether the Supreme Court, while granting Special Leave to Appeal under Article 136 of the Constitution, against an order of acquittal, on a capital charge, has the power to issue a non-bailable warrant for the arrest and committal to prison of the accused-respondent, who had been acquitted by the High Court ?”. The Supreme Court, considering the provision of section 427 of Criminal Procedure Code, 1898, which is pari materia with section 390 of the Code of Criminal Procedure, 1973, observed as above. Thus, it is clear that the question before the Supreme Court was altogether different. 15. Having considered the language of section 39 (1) (a) of the Adhiniyam, 1993, the judgments on which reliance has been placed by the learned counsel for the parties and the submissions made by them, we are of the view that the petition deserves to be allowed. 16. The petitioner having been acquitted by the competent Criminal Court, of the charges framed against him, the rigour of section 39 (1) (a) of the Adhiniyam, 1993 will not come in his way, merely because the appeal against acquittal has been admitted by this Court. True, it is that on appeal being admitted for hearing while exercising the powers of appeal, the judgment of acquittal can be reversed and the person acquitted can be convicted, but the fact remains that there exist a judgment of acquittal, which is operative in his favour and, therefore, he cannot be deprived to enjoy the fruits of the same, merely because appeal against the same has been admitted. 17. As a result, we allow this writ petition. The order dated 10.1.2012 (Annexure P-11) passed by the Commissioner, is quashed, the petitioner’s suspension is ordered to be revoked and as a consequence the declaration dated 19.1.2011 (Annexure P-7) in respect of the fourth respondent is also quashed. 18. Parties to bear their own costs.