ORDER : This writ petition has been filed by Rajesh Devi, an elected Sarpanch of Gram Panchayat Majra, Panchayat Samiti Bansoor, challenging order dated 13.01.2017, whereby the Divisional Commissioner, Jaipur, while invoking provisions of Section 38(4) of the Rajasthan Panchayati Raj Act, 1994, has placed her under suspension from the office of Sarpanch on account of a criminal case for offence under Sections 420, 466, 468 and 471 of the Indian Penal Code (for short, ‘the IPC’) pending trial against her in the court of Judicial Magistrate, Bansoor, District Alwar. 2. Facts of the case, as averred in the writ petition, are that petitioner won election with comfortable margin of 36 votes by defeating his rivals, who made a complaint against her, not only to the Government but also lodged first information report with the Police Station alleging that the petitioner has contested the election of Sarpanch on the basis of forged certificate of 8th standard pass. Charge-sheet was issued to the petitioner by the Divisional Commissioner calling upon her to explain the said allegations. The petitioner submitted reply to the same, wherein, relying on a judgment of full bench of this court in Sameera Bano (Smt.) Vs. State of Rajasthan and Others, AIR 2007 RAJ 168 , she contended that administrative enquiry cannot be conducted for her removal on allegation of pre-election disqualification. Even then, the petitioner was placed under suspension by order dated 03.09.2015. Petitioner challenged the charge-sheet dated 30.07.2016 as well as order of suspension dated 03.09.2015 by filing writ petition, which came to be registered as S.B. Civil Writ Petition No.13913/2015. This court, by judgment dated 11.02.2016, quashed and set aside the charge-sheet in administrative enquiry as also the order of suspension. But the Divisional Commissioner thereafter has again by order dated 13.01.2017 placed the petitioner under suspension by invoking Section 38(4) of the Act on the ground of charges having been framed against her in criminal trial for offence under Sections 420, 466, 468 and 471 of the IPC. 3. Mr. But the Divisional Commissioner thereafter has again by order dated 13.01.2017 placed the petitioner under suspension by invoking Section 38(4) of the Act on the ground of charges having been framed against her in criminal trial for offence under Sections 420, 466, 468 and 471 of the IPC. 3. Mr. Manoj Bhardwaj, learned counsel for petitioner, argued that provisions of Section 38(4) of the Panchayati Raj Act, 1994 (for short, ‘the Act of 1994’), could not be invoked against the petitioner because that provision presupposes an enquiry for removal of any member including a chairperson or a deputy chairperson of a Panchayati Raj Institution either on the ground of his refusal to act or when he becomes unable of being such or is guilty of misconduct in discharge of duties or any other case of misconduct. Learned counsel referred to Section 19 of the Act of 1994 and submitted that therein are contained the provisions with regard to qualification or disqualification, and relevant provision in Section 19(gg) of the Act of 1994, provides that 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 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. It is argued that if the competent authority decides to proceed against elected sarpanch in proceedings for his removal, relevant provision that would be attracted in the situation would be Section 39 of the Act of 1994, which provides that a member of a Panchayati Raj Institution shall not be eligible to continue to be such member if he/she is or becomes subject to any of the disqualifications specified in Section 19 of the Act of 1994. Subsection (2) of Section 39 of the Act of 1994 provides that whenever it is made to appear to the competent authority that a member has become ineligible to continue to be a member for any of the reasons specified in sub-section (1), the competent authority may, after giving him an opportunity of being heard, declare him to have become so ineligible and thereupon he shall vacate his office as such, but this is subject to proviso that until declaration under sub-section (2) of Section 39 is made, he shall continue to hold his office. Argument of learned counsel for petitioner is that till a declaration is not made under sub-section (2) of Section 39, the petitioner ought to have been allowed to continue to hold the office of sarpanch and could not have been suspended. Holding of enquiry as provided by Rule 23 of the Rajasthan Panchayati Raj Rules, 1996, is sine qua non for such a declaration. Serving of show cause notice proposing to give opportunity of hearing to the petitioner was mandatory as per the provisions of Section 39(2) of the Act of 1994. In the present case, neither any enquiry was conducted to make the requisite declaration nor any show cause notice was served upon the petitioner. Therefore, the petitioner, by virtue of proviso to subsection (2) of Section 39 of the Act of 1994, was entitled to continue to hold his office. The order placing her under suspension is absolutely illegal, and is liable to be quashed and set aside. 4. Mr. Anurag Sharma, learned Additional Advocate General appearing for the respondent State, opposed the writ petition and submitted that earlier order placing the petitioner under suspension was passed pending administrative enquiry against her under Section 39 of the Act of 1994 read with Rule 23 of the Rules of 1996, which was challenged by the petitioner by way of filing S.B. Civil Writ Petition No.13642/2015, Rajesh Devi Vs. State of Rajasthan and Others. That writ petition came to be decided by a coordinate bench of this court along-with a bunch of writ petitions, leading one being S.B. Civil Writ Petition No.16070/2015, Bhupendra Singh Hada Vs. State of Rajasthan and Others, vide judgment dated 11.02.2016. State of Rajasthan and Others. That writ petition came to be decided by a coordinate bench of this court along-with a bunch of writ petitions, leading one being S.B. Civil Writ Petition No.16070/2015, Bhupendra Singh Hada Vs. State of Rajasthan and Others, vide judgment dated 11.02.2016. This court, while allowing the writ petitions, observed that finally in the event of elected Chairpersons/Members being charged for an offence involving moral turpitude even in respect of the period prior to the elections, the State Government would be free to suspend such Chairpersons/Members of Panchayati Raj Institutions under Section 38(4) of the Act of 1994. Factum of framing of charge against the petitioner is writ large from the impugned order and that fact being not disputed, the order placing the petitioner under suspension is just and proper and does not call for any interference. 5. It is submitted that provisions of Section 38(4) of the Act of 1994 would be invoked not only during administrative enquiry but also during trial, subject, of course, to the condition that such trial must have commenced after framing of charges against the delinquent in respect of offence involving moral turpitude. Since the charges against the petitioner have been framed in the trial by the court of Judicial Magistrate, Bansoor (Alwar), for offence under Sections 420, 466, 468 and 471 of the IPC, she being accused of serious offence involving moral turpitude, has rightly been suspended while invoking provisions of sub-section (4) of Section 38 of the Act of 1994. 6. Learned Additional Advocate General, submitted that provisions with regard to removal and suspension as contained in Section 38 of the Act of 1994, are entirely distinct from the provisions of Section 39 of the Act of 1994. While Section 39 deals with cessation of membership, Section 38 provides for removal and suspension of the member of association, inter alia, on the ground of his/her found guilty of misconduct in the discharge of duties or any disgraceful conduct. Subsequent to judgment dated 11.02.2016, supra, the court of Judicial Magistrate, Bansoor, has framed charges against the petitioner. The petitioner has acquired disqualification having committed forgery and played fraud on the public at large by producing forged certificate for contesting election. Neither enquiry envisaged under Rule 23 of the Rules of 1996 was needed nor any show cause notice was required to be given before her placing under suspension. The petitioner has acquired disqualification having committed forgery and played fraud on the public at large by producing forged certificate for contesting election. Neither enquiry envisaged under Rule 23 of the Rules of 1996 was needed nor any show cause notice was required to be given before her placing under suspension. The writ petition be therefore dismissed. 7. I have given my anxious consideration to rival submissions and perused the material on record. 8. Core question that arises for determination is whether Section 38(4) of the Act of 1994 could be invoked by the respondents for placing the petitioner under suspension on allegations, which pertain to pre-election disqualification, wherefor charges in a criminal trial have been framed against him. Subsection (4) of Section 38 of the Act of 1994, for this purpose, can be divided into two parts. While first part provides that the government may place any member of a Panchayati Raj Institution under suspension against whom an enquiry has been initiated under sub-section (1) but the second part would be attracted in a situation when criminal proceedings with regard to offence of moral turpitude is pending trial in a court of law against her. So far as earlier order of suspension is concerned, the respondents invoked the above referred to first part of sub-section (4), as the administrative enquiry initiated for her removal was pending, which was quashed by this court relying on full bench decision of this court in Smt. Sameera Bano, supra, holding that no member of a Panchayati Raj Institution can be proceeded against for removal in an administrative enquiry on allegations of pre-election disqualification, but order impugned herein has been passed singularly on the basis of fact that charges for offence under Sections 420, 466, 468 and 471 of the IPC involving moral turpitude have been framed against the petitioner and the matter is pending trial in the court of law. Thus, in the present case, what has been invoked by the respondents is second part of sub-section (4) of Section 38 of the Act of 1994, which is that any member of a Panchayati Raj Institution including Chairperson/Deputy Chairperson, 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...”. 9. 9. Contention of learned counsel for petitioner that even in regard to second part, where order of suspension has been passed on the basis of charges having been framed in a criminal trial, enquiry ought to have been conducted in accordance with the provisions contained in Rule 23 of the Rules of 1996, and that requisite declaration under Section 39(2) should have been recorded in such an enquiry and since no such declaration has been recorded so far, the petitioner by virtue of proviso to subsection (2) of Section 38 of the Act of 1994 would be entitled to continue to hold her office, is noted to be rejected for stated reasons. Further contention that declaration under sub-section (2) of Section 39 that petitioner has become ineligible to continue to be a member for any of the reasons specified in Section 39(1)(a), which includes the disqualification specified in Section 19 and that the competent authority before placing her under suspension should have served upon the petitioner show cause notice and provided opportunity of being heard, also cannot be countenanced. Sections 38 and 39 for the present purpose have to be read disjointly to make the scheme of the legislation workable. While it is true that sub-section (1) of Section 38 envisages an enquiry before an order of removal is passed, for which enquiry provisions of Rule 23, supra, are attracted but as is evident from caption of Section 38 “Removal and suspension”, this provision does not speak about removal alone but also contains provision with regard to suspension. Sub-sections (1) and (2) of Section 38 contains provision with regard to removal and sub-section (3) of Section 38 stipulates that any member including chairperson or deputy chairperson of a Panchayati Raj Institution against whom findings have been recorded under the proviso to that sub-section, shall not be eligible for being chosen under the Act of 1994 for a period of five years from the date of his removal or, as the case may be, the date on which such findings are recorded. But subsection (4) of Section 38 is an independent provision of the then sub-sections (1) and (2) thereof, as suspension order of the members of the Panchayati Raj Institution under this provision could be passed not only against whom an administrative enquiry has been initiated but it also covers the cases of members against whom any criminal proceedings in regard to offence involving moral turpitude is pending trial in a court of law. The order of suspension passed invoking latter part of sub-section (4) of Section 38 read with Section 39(2) therefore need not be preceded either by an enquiry or a show cause notice. While the competent authority may be under an obligation to give an opportunity of being heard before recording a declaration that a member of Panchayati Raj Institution has become ineligible to be continued as such, but no such show cause notice or opportunity of being heard can be insisted upon in a case where a member of Panchayati Raj Institution is placed under suspension against whom criminal proceedings in regard to offence involving moral turpitude is pending trial in a court of law. Sections 38 and 39 of the Act of 1994 thus operate in different spheres; while Section 39 covers different situations in which a member of Panchayati Raj Institution shall not be eligible to continue to be such member and if any of such situations are attracted, it would result in cessation of his membership, Section 38 has only one component of many such situations, included in Section 39, which is that the State Government may, after an opportunity of being heard and making an enquiry, remove such any member, who refuses to act or has become incapable of acting as such or is guilty of his misconduct in discharge of duties or any other misconduct. Such an enquiry can be held as per proviso to sub-section (1) of Section 38 of the Act of 1994 or can be continued if already instituted before such suspension. But sub-section (4) of Section 38 is an independent provision, latter part of which can be invoked by the State Government for placing a member of Panchayati Raj Institution under suspension only on the basis of criminal proceedings for offence involving moral turpitude is pending trial in a court of law against him. 10. The Supreme Court in Ratilal Bhanji Mithani Vs. 10. The Supreme Court in Ratilal Bhanji Mithani Vs. State of Maharashtra, (1979) 2 SCC 179 , held that the trial in a warrant case starts with the framing of charge; prior to it, the proceedings are only an enquiry. A division bench of this court in Bhagwan Singh Vs. State of Rajasthan and Another, D.B. Civil Writ Petition No.166/1986, decided on 22.04.1987, while interpreting pari-materia provision contained in predecessor Act i.e. Section 17(4A) of the Rajasthan Panchayat Act, 1953, interpreted the words ‘pending trial’ and held that “...the intention behind Section 17(4A) seems to be that a Sarpanch of a Panchayat may be suspended when the trial court applies its mind to the merits of the case regarding framing of the charge.” That judgment was cited with approval in subsequent division bench judgment in Bansidhar Saini Vs. State of Rajasthan and Another, 1988 (1) WLN 270. 11. That having been said with regard to phraseology ‘pending trial’, it must be held that neither show cause notice is required to be given nor any enquiry is required to be conducted either with reference to sub-section (1) of Section 38 or sub-section (2) of Section 39 of the Act before placing a member of Panchayati Raj Institution “against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law”. If upon conclusion of trial, the petitioner is eventually convicted and the State Government proposes to remove her from the office of Sarpanch, the judicial determination, having already been recorded with regard to his/her guilt, would obviate the need for an enquiry and at that stage, limited show cause notice on such factual aspect may be required to be served upon him/her before passing the order of removal from the office of Sarpanch. 12. A full bench of this court in Bhura Lal Vs. State of Rajasthan and Others, 1988 (1) RLR 945, was dealing with the question as to what would be proper stage when the order of suspension under Section 17(4A) of the Rajasthan Panchayat Act, 1953 can be passed by the Government and whether opportunity of hearing is necessary to be given before passing the order of suspension against Panch, Sarpanch, or Up-sarpanch. The provisions of Section 38(4) of the Act of 1994 and Section 17(4A) of the Rajasthan Panchayat Act, 1953 are in pari materia with each other, as is clear from the reading thereof, which read as under:- “38. Removal and suspension.- (1) ….. ..… ….. (4) The State Government may 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 proceedings in regard to an offence involving moral turpitude is pending trial in a court of law and such person shall stand debarred from taking part in any act or proceeding of the Panchayati Raj Institution concerned while being under such suspension. [Provided that the State Government may also suspend any Panch on the recommendation of the Ward Sabha or a Sarpanch on the recommendation of the Gram Sabha, but the State Government shall do so only when a resolution to that effect passed by a Ward Sabha, or a Gram Sabha, as the case may be, is referred by the State Government to the Collector for convening a special meeting of the Ward Sabha or the Gram Sabha, as the case may be, for finally ascertaining the wished of the members and the members present in the meeting so convened by the Collector and presided over by his nominee, reaffirm the resolution seeking suspension of the Panch or the Sarpanch, as the case may be, by a majority of two-third of the members present and voting. Provided further that no resolution seeking suspension of the Panch or Sarpanch shall be moved or passed before the completion of a tenure of two years by a Panch or a Sarpanch, as the case may be. …..” 13. Section 17(4) of the Rajasthan Panchayat Act, 1953, reads thus:- “17(4). Provided further that no resolution seeking suspension of the Panch or Sarpanch shall be moved or passed before the completion of a tenure of two years by a Panch or a Sarpanch, as the case may be. …..” 13. Section 17(4) of the Rajasthan Panchayat Act, 1953, reads thus:- “17(4). The State Government may, by order in writing and after giving him an opportunity of being heard and making such Inquiry as may be deemed necessary, remove any Panch, Sarpanch or Up-Sarpanch who- (a) refuses to act or becomes incapable of acting as such or (b) in the opinion of the State Government, has been guilty of misconduct or neglect in the discharge of his duties or of any disgraceful conduct: Provided that any such enquiry as is referred to in this sub-section may be initiated or if already initiated before such expiry, may be continued thereafter and in any such case, the State Government shall, by order in writing, record its finding on the charges levelled against a Panch, Sarpanch or Up-Sarpanch of the Panchayat during its term of office. ..… ….. (4-A) The State Government may suspend any Panch, Sarpanch or Up-Sarpanch against whom an inquiry has been started under sub-section (4) or the proviso thereto, or against whom any criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law, and debar him from taking part in any act or proceedings of the Panchayat while under suspension.” 14. The full bench therein held that the suspension of a Panch, Sarpanch or Up-sarpanch is necessary to be brought about in order to prevent him from continuing to commit serious acts of misconduct, misappropriation of funds, falsification of accounts, tempering with the records or misusing his official position and the like. In such cases, the normal presumption that a hearing must be given is rebutted by the urgency of the situation. Even in cases not involving urgency, when it is necessary to prevent a person from doing any mischief or continuing to indulge in acts harmful to the society or a section thereof or where prior warning would frustrate the very object, action may be taken without a predecisional hearing. Even in cases not involving urgency, when it is necessary to prevent a person from doing any mischief or continuing to indulge in acts harmful to the society or a section thereof or where prior warning would frustrate the very object, action may be taken without a predecisional hearing. The order of suspension under Section 17(4A) is an order of interim nature and it could be passed only after an active application of mind by the State Government to the question as to whether an emergent or immediate action is called for on the basis of the preliminary enquiry report and its decision to send a charge-sheet and show cause notice to the Panch or Sarpanch concerned. It is then that opportunity of hearing would be afforded to him in the sense that he will have an opportunity to submit his representation in answer to the charges. 15. A division bench of this court in Jan Mohd. vs. The State Of Rajasthan And Others - 1992 (2) WLC 463 , while dealing with somewhat identical question whether principles of ‘audi alteram partem’ would be applicable at the stage of passing of suspension order of an elected Member/Chairman of Municipality, observed that according to provisions of Section 63(4) of the Rajasthan Municipalities Act, 1959, the Government, on receipt of a complaint, has to get the same enquired by preliminary enquiry and on receipt of the report of such preliminary enquiry, has to apply its mind thereto. If the complaint is found to be false, the proceedings can be dropped. However, if it is of the opinion that the charges require further thorough probe, then the charges can be referred to the Judicial Officer for further enquiry. It is at that stage that the delinquent must be served with show cause notice along-with the statement of allegations and if the State Government considers it proper that his continuation in the office will result any harm to the institution, it may suspend the delinquent. This procedure was held fair, reasonable, just and proper. That was held to be a case of only temporarily keeping the person away from the office pending proposed enquiry contemplated into his removal. The suspension does not finally determine the matter. This procedure was held fair, reasonable, just and proper. That was held to be a case of only temporarily keeping the person away from the office pending proposed enquiry contemplated into his removal. The suspension does not finally determine the matter. Its sole purpose is that the persons against whom severe allegations of misconduct, flagrant abuse of powers and disgraceful conduct are levelled, may be restrained from causing further damage to the finances of the institution. The suspension order is absolutely interim in character and does not attain any finality. Principles of natural justice would therefore not be applicable to such a situation, held the division bench. 16. In the present case, filing of the charge-sheet by the police in the court would serve the purpose of preliminary enquiry and subsequently when the court of law has taken cognizance on the basis of result of investigation submitted by the police, and thereafter when the charges have been framed, the matter should be taken to have been judicially scrutinized. The requirement of show cause notice or opportunity of hearing can therefore not be insisted upon at the stage of order of suspension passed by the Government by recourse to sub-section (4) of Section 38 of the Act of 1994. 17. In view of the above discussion, the writ petition has no merit and it is accordingly dismissed. Stay application no.1312/2017 is also dismissed.