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2015 DIGILAW 1371 (RAJ)

Vikas Chouhan v. State of Rajasthan

2015-07-22

BELA M.TRIVEDI

body2015
JUDGMENT : Bela M. Trivedi, J. With the consent of the learned counsels for the parties, the writ petition is heard finally at the admission stage. 2. The petitioner, by way of present petition, has challenged the order dated 16/6/2015 (Annexure-5), whereby the petitioner has been placed under suspension in view of the provisions contained in Section 38(4) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as 'the said Act'). 3. The short facts giving rise to the present petition are that the petitioner has been elected as the Panchayat Samiti Member of Ward No. 14, Panchayat Samiti Kherabad, Tehsil Ramganjmandi, District Kota. It further appears that pursuant to the FIR being No. 128 of 2015 registered against him for the offence under Sections 399, 402 of IPC and Section 3 read with Section 25 of the Arms Act, the petitioner was arrested and kept in police custody from 19/2/2015 to 25/2/2015. It appears that thereafter the petitioner has been placed under suspension vide the impugned order dated 16/6/2015 (Annexure-5) with immediate effect on the ground that he was involved in the criminal proceedings in regard to moral turpitude. It further appears that on 19/6/2015, the petitioner was also called upon to give explanation as to why an enquiry should not be initiated against him as per Rule 22(2) of the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the said Rules'). The petitioner therefore has challenged the impugned order placing him under suspension on the ground that the same is violative of Section 38(4) of the said Act. 4. It has been sought to be submitted by the learned counsel Mr. Mahendra Sharma for the petitioner relying upon the various decisions of this Court delivered in Hansraj Gujar v. State & Ors., S.B. Civil Writ Petition No. 12698/2012, decided on 13/2/2013 & Narayan Lal Birla v. The State of Rajasthan & Ors, 1997(3) WLC (Raj.) 75 that no. enquiry was initiated by the respondents prior to passing of the impugned order, nor any criminal proceedings were pending for trial against the petitioner and therefore the petitioner could not have been placed under suspension. enquiry was initiated by the respondents prior to passing of the impugned order, nor any criminal proceedings were pending for trial against the petitioner and therefore the petitioner could not have been placed under suspension. He submitted that as per the settled legal position, the trial could be said to have commenced only on the framing of the charge, and in the case of the petitioner, the charge having not been framed, it could not be said that the criminal proceedings are pending for trial in the Court of law. However, the learned counsel Mr. Manu Bhargava relying upon the decision of this Court in case of Ganesha Ram v. State of Rajasthan & Ors, 2014(2) WLC (Raj.) 217 submitted that now since the respondents have already initiated the enquiry against the petitioner, the impugned order of suspension was in accordance with the provisions contained in Section 38(4) of the said Act. 5. Having regard to the submissions made by the learned counsels for the parties, and to the documents on record, it appears that the petitioner was placed under suspension in view of the provisions contained in Section 38(4) of the said Act on the ground that the criminal proceedings in regard to the offence involving moral turpitude was pending, and that he was in the police custody from 19/2/2015 to 25/2/2015. Now, as per the provisions contained in Section 38(4) of the said Act, the State Government could suspend any member including Chairperson or Deputy Chairperson of the Panchayat Raj Institution, against whom an enquiry has been initiated or against whom any criminal proceedings in regard to the offence involved in moral turpitude are pending trial in a Court of law. Hence, the two conditions requisite would be that either the enquiry should have been initiated prior to passing of the suspension order, or the criminal proceedings with regard to the offence involving mortal turpitude should be pending for trial in the Court of law at the time of passing the suspension order. In the instant case, it appears that the respondents had not initiated any enquiry prior to passing of the impugned order, however the petitioner has been placed under suspension on the ground that criminal proceedings with regard to the offence involving mortal turpitude were pending. In the instant case, it appears that the respondents had not initiated any enquiry prior to passing of the impugned order, however the petitioner has been placed under suspension on the ground that criminal proceedings with regard to the offence involving mortal turpitude were pending. Admittedly, at the time of passing the impugned order, even the charge sheet was not filed in respect of the said FIR registered against the petitioner, and, therefore, it could not be said that the criminal proceedings were pending trial in the court of law. The learned Government Counsel appearing for the respondents has failed to substantiate as to how the petitioner could have been placed under suspension when no trial was pending in respect of the FIR registered against the petitioner. 6. In that view of the matter, the impugned order passed by the respondent No.2 being not in consonance with the provisions contained in Section 38(4) of the said Act, the same deserves to be quashed and set aside. However, now since the learned Govt. Counsel has stated that the enquiry has already been initiated against the petitioner, it is clarified that the respondent shall be at liberty to take action against the petitioner including placing him under suspension in accordance with law. 7. In view of the above, the impugned order dated 16/6/2015 is quashed and set aside. The petition stands allowed accordingly. By this order, the stay application also stands disposed of.