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2014 DIGILAW 1804 (RAJ)

Haja Ram v. State of Rajasthan

2014-11-12

SANGEET LODHA

body2014
JUDGMENT 1. - By way of this writ petition, the petitioner has assailed validity of order dated 19.7.14 issued by the State Government, whereby the petitioner holding the post of Sarpanch, Gram Panchayat, Mermandwada, has been placed under suspension in exercise of powers conferred by sub-section (4) of Section 38 of the Rajasthan Panchayati Raj Act, 1994 (in short "the Act"), on the ground that after investigation, the charges for the offences under Sections 147, 447, 427/149 and 109 IPC are found proved against the petitioner and the sanction for prosecution has already been granted by the competent authority. 2. 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 the charges being found prima facie proved by the police and prosecution sanction being issued, the petitioner, 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. 3. On the other hand, the Additional Government Counsel appearing for the respondents submitted that the prosecution sanction having been issued by the competent authority on the charges for offences under Sections 147, 447, 427/149 and 109 IPC having been found established against the petitioner, the order impugned passed by the State 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 v. State of Rajasthan' (D.B. Civil Special Appeal(W) No. 1038/13) dated 9.5.14. 4. I have considered the rival submissions and perused the material on record. 5. Indisputably, the charges for offences under Sections 147, 447, 427/149 and 109 IPC having been found proved against the petitioner after due investigation, the prosecution sanction has already been issued by the competent authority. 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. 6. 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. 6. 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 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. 7. 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 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. 8. In the result, the petition is allowed. 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. 8. In the result, the petition is allowed. The order impugned dated 19.7.14 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, Mermandwada, under suspension, is hereby quashed. No order as to costs.Petition allowed. *******