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Kewal Chand Nai Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 793 of 1983
Judge
Reported inAIR1983Raj252
ActsRajasthan Panchayat Act, 1953 - Sections 17(4A); Indian Penal Code (IPC) - Sections 408, 467 and 471; Code of Criminal Procedure (CrPC) , 1974 - Sections 239 and 240; Constitution of India - Article 245
AppellantKewal Chand Nai
RespondentState of Rajasthan and ors.
Appellant Advocate B.L. Sharma and; K.S. Rathore, Advs.
Respondent Advocate S.B. Mathur, Addl. Govt. Adv.
DispositionPetition dismissed
Cases Referred and Harish Chandra Bajpai v. Triloki Singh
Excerpt:
.....(b) of section 494, cr. the wording is perfectly wide and general and would apply to all classes of cases which are capable of terminating either in a discharge or in an acquittal, according to the stage at which the section is invoked. , is wide enough to cover every kind of inquiry and trial and, that the word 'trial' in the section has not been used in any limited sense,'in view of the aforesaid pronouncement of law made by their lordships of the supreme court the case of madho ram's case ((1950) 51 cri lj 1522) is not good law......petitioner only when criminal proceedings in regard to an offence involving moral turpitude were pending trial in a court of law. the contention of the petitioner is that so far no charge has been framed against the petitioner and as such no trial is pending against him and the state government is not empowered to suspend the petitioner under the aforesaid provisions of section 17 (4a) of the act it is contended by the learned counsel for the petitioner that the trial only commences after framing of charge and till that stage reaches in a criminal proceeding h cannot be said that any trial was pending against the petitioner in regard lo an offence involving moral turpitude. reliance is placed on sarkar v. madho ram, air 1950 raj 34 : (51 cri lj 1522),3. on the other hand, it was.....
Judgment:
ORDER

N.M. Kasliwal, J.

1. This writ petition under Article 226 of the Constitution of India has been filed, challenging the order dt. 8th April, 1983, passed by Avar Sachiv (Janch) Gramin Vikas Evam Panchayati Raj Department, Rajasthan Jaipur, suspending the petitioner from the post of Sarpanch, Gram Panchayat Memasar, Panchayat Samiti Sri Dungargarh, District Churu. The petitioner was elected Sarpanch of the above-mentioned Panchayat on 10th December, 1981.

2. The case of the petitioner is that on a complaint filed by one Dana Ram Choudhary, a challan has been filed against the petitioner on 11th March, 1982. under Sections 467, 471, and 408 IPC in the Court of Chief Judicial Magistrate, Churu. In view of the aforesaid criminal proceedings lodged against the petitioner, the State Government has suspended the petitioner under Section 17 (4A) of the Rajasthan Panchayat Act, 1953 (hereinafter referred to as 'the Act'). The short controversy raised by the petitioner in this writ petition is that under Section 17 (4A) of the Act the State Government could have suspended the petitioner only when criminal proceedings in regard to an offence involving moral turpitude were pending trial in a court of law. The contention of the petitioner is that so far no charge has been framed against the petitioner and as such no trial is pending against him and the State Government is not empowered to suspend the petitioner under the aforesaid provisions of Section 17 (4A) of the Act It is contended by the learned counsel for the petitioner that the trial only commences after framing of charge and till that stage reaches in a criminal proceeding H cannot be said that any trial was pending against the petitioner in regard lo an offence involving moral turpitude. Reliance is placed on Sarkar v. Madho Ram, AIR 1950 Raj 34 : (51 Cri LJ 1522),

3. On the other hand, it was contended by Mr. Mathur, learned Additional Government Advocate that as soon as a challan is filed before the Chief Judicial Magistrate, the criminal proceedings will be said to be pending for trial in a court of law and it is not necessary to frame a charge to hold that a trial is pending in a court of law. Reliance is placed on Mahesh Desai v. Ram Naresh Pandey, AIR 1957 SC 389: (1957 Cri LJ 567) and Harish Chandra Bajpai v. Triloki Singh AIR 1957 SC 444.

4. The Criminal P.C., 1973 defines 'inquiry and investigation' under Section 2 (g) and (h) but the word 'trial' has not been defined in the said Code. Under Section 2 (g) 'inquiry' means every inquiry other than a trial, conducted under this Code by a Magistrate or Court. 'Investigation' under Section 2 (h) is defined as including all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. A perusal of the aforesaid two definitions clearly shows that the proceedings pending before the learned Chief Judicial Magistrate are neither inquiry nor investigation as defined under the Criminal P.C. Inquiry has been defined as meaning every inquiry other than a trial, conducted under this Code by a Magistrate or Court. After filing a challan by a police officer before a Magistrate, the procedure has to be adopted as contemplated under Chapter XIX of the Cri. P. C. Under Section 239 if, upon considering the police report and the document sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused, an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing. Under Section 240, if upon such consideration, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. It is undisputed that the offence in which the challan has been filed, is triable by the Chief Judicial Magistrate. The Magistrate will either discharge the accused as contemplated under Section 239 Cr. P.C. or frame the charge under Section 240 Cr.P.C. The action thus, which the Magistrate would take under Section 239 or 240 Cr.P.C. will be during the trial and it can be said with certainty that the proceedings pending at present before the learned Chief Judicial Magistrate are with regard to an offence involving moral turpitude and the petitioner is being tried for a case pending trial in a court of law. In Ram Naresh Pandey's case (1957 Cri LJ 567) (SC) (supra) it was observed as under:

'It cannot be said that in a case triable by a Court of Session, an application by the Public Prosecutor for withdrawal with the consent of the Court does not lie in the committal stage The provision corresponding to the power of the Attorney General to enter nolle pro-sequi is Section 333. Cri.P.C. which refers to jury trials in the High Court. The procedure under Section 494, Cri.P.C. does not correspond to it. The phrase 'in other cases before the judgment is pronounced' in Section 494, Cri.P.C., would, in the context, clearly apply to all cases other than those tried by jury-Now, there can be no doubt that at least as regards these other cases, when the consent for withdrawal is given by the Court, the result is either a discharge or an acquittal, according to the stage to which that case has reached, having regard to the two alternatives (a) and (b) of Section 494, Cr.P.C. It follows that at least in every class of cases other than those tried by jury, the withdrawal can be at any stage of the entire proceedings. This would include also the stage of preliminary inquiry in a sessions case triable without a jury. It is not correct to say that the power cannot be exercised at the preliminary inquiry stage, only as regards cases which must lead to a jury trial. There is no conceivable reason for any such discrimination having been intended and prescribed by the Code Section 494, Cr.P.C., cannot be construed as involving any such limitation. The wording is perfectly wide and general and would apply to all classes of cases which are capable of terminating either in a discharge or in an acquittal, according to the stage at which the section is invoked. The words 'tried' and 'trial' appear to have no fixed or universal meaning. No doubt, in quite a number of sections in the Code the words 'tried' and 'trial' have been used in the sense of reference to a stage after the inquiry. That meaning attaches to the words in those sections having regard to the context in which they are used. There is no reason why where these words are used in other context in the Code, they should necessarily be limited in their connotation and significance. They are words which must be considered with regard to the scheme and purpose of the provision under consideration. There are altogether three substantial changes in between 1872 and 1923 in the corresponding Section 61 of the 1872 Code. The first two changes made in 1882 were obviously intended to indicate that the result by way of discharge or acquittal should depend not on the distinction between inquiry and trial but on the fact of a charge having been framed or not having been framed. The second was to clarify that the application can be made generally up to the point when judgment is pronounced but to provide for an exception thereto in respect of cases which in fact have gone up for a jury trial, in which case the application can be made only up to the point of time before the verdict is pronounced. The third change in 1923 was to make it clear that the withdrawal need not fee in respect of the entire case against a particular individual but in respect of one or more only of the charges for which he is being prosecuted. These three changes, therefore, were introduced for specific purposes which are obvious. The section as it originally stood in 1872 was quite wide enough to cover all classes of cases not excluding even jury cases when it is in the stage of preliminary inquiry. There is absolutely no reason to think that these successive changes were intended to exclude such a preliminary inquiry from the scope of Section 494 as it has finally emerged. It may also be mentioned that the words 'inquiry' and 'trial' were both defined in the Code of 1872 but that the definition of the word 'trial' was omitted in the 1882 Code the definition of the word 'inquiry' was slightly altered by adding the phrase 'other than a trial' leaving the word 'trial' undefined. These various legislative changes from time to time with reference to Section 494, Cr.P.C., and the definition of the word 'inquiry' confirm the view above taken that Section 494, Cr.P.C., is wide enough to cover every kind of inquiry and trial and, that the word 'trial' in the Section has not been used in any limited sense,'

In view of the aforesaid pronouncement of law made by their Lordships of the Supreme Court the case of Madho Ram's case ((1950) 51 Cri LJ 1522) is not good law. The scheme of Section 17 (4A) of the Act also goes to show that it empowers the State Government to suspend any, Panch, Sarpanch and Upsar-panch against whom an inquiry stood 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. This provision does not finally punish a Panch. Sarpanch and Up-sarpanch but merely suspends him in a case where criminal proceedings involving moral turpitude are pending trial against him. The provision is based on sound and reasonable principle. When criminal proceedings in regard to an offence involving moral turpitude is pending trial against such person, he cannot be permitted to take part in any act or proceedings of the Panchayat and the Legislature in its wisdom thought it proper to empower the State Government to suspend such person.

5. It was also contended by Mr. Sharma that the provision of Section 17 (4A) of the Act should be struck down on the ground that no opportunity for showing cause is given to such person before suspending him. It was also argued that the criminal proceedings may remain pending for number of years and during all that period such person may be debarred from acting as Panch, Sarpanch and Up-sarpanch. It was also submitted that even under Section 11 of the Act a person becomes disqualified for election or appointment as a Panch if he has been convicted by a competent court of an offence involving moral turpitude. It is contended that it is only after a conviction by a competent court of an offence involving moral turpitude that a person becomes disqualified and not earlier. There is complete fallacy in the submission of Mr. Sharma. The provision contained in Section 11 lays down a complete disqualification for election or appointment as a Panch. Under Section 17 (4A) such person is not disqualified but he is only suspended during the pendency of trial in a court of law. Even in case of government servants there are rules under which a government servant may be suspended during the pendency of a criminal case against him. There is no question of giving any show cause or making a separate inquiry in a case where criminal proceedings in regard to an offence involving moral turpitude are pending against such person in a court of law. The challan is filed by the police after making investigation and such person gets an opportunity under Section 233 Cr.P.C. to urge before such court that even no case for framing charge is made out against him and in case he is able to satisfy, the Magistrate will discharge him under Section 239 Cr.P.C. In case he is discharged by the Criminal Court under Section 239 Cr.P.C., then certainly the order of suspension passed by the State Government under Section 17 (4A) will have to be withdrawn and the State Government will have to restore such person as Panch, Sarpanrh or Up-sarpanch. This court has been informed that 19th April, 1983 was fixed in the case for framing charge and the next date now fixed is 28th May, 1983. The petitioner has a right to contend before the court of Chief Judicial Magistrate under Section 239 Cr.P.C. that prima facie no case is made out against him and the learned Chief Judicial Magistrate would decide the matter in accordance with law. The Section 17 (4A) is not arbitrary and is valid piece of legislation. There is no ground or justification for approaching this court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution at this stage.

6. The writ petition is accordingly dismissed summarily.


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