Important Point—Trial commences after framing of charges.

Sangeet Lodha, J.

1. This petition is directed against order dated 17.11.16 issued by the Joint Secretary, Rural Development & Panchayati Raj Department, placing the petitioner, an elected Sarpanch of Gram Panchayat, Chinnu, under suspension in exercise of the power conferred under Section 38(4) of Rajasthan Panchayati Raj Act, 1994 (for short "the Act"). The petitioner has also questioned legality of inquiry initiated under Section 38(1) by issuing charge sheet dated 17.11.16 under Rule 22(2) of Rajasthan Panchayati Raj Rules, 1996 (for short "the Rules").

2. The petitioner has been placed under suspension on the ground that a criminal proceeding in regard to an offence involving moral turpitude is pending trial against her before the court of Additional Chief Judicial Magistrate, Pokaran. The charges levelled against the petitioner vide charge sheet dated 17.11.16 read as under:

^^vkjksi la[;k 1%& ;g gS fd vki Jherh gchck ljiap xkze iapk;r fpUuw ipak;r lfefr ,oa ftyk tSlyesj }kjk QthZ 'kS{kf.kd ;ksX;rk ds nLrkost izLrqr djus ds vk/kkj ij ljiap xzke iapk;r fpUuw dk pquko yM+k x;k ,oa ljiap xzke ia;=pk;r fpUuw ds in ij fuokZfpr ?kksf"kr gqbZ] ftlds fy;s vki nks"kh gSA

vkjksi la[;k 2%& izdj.k la[;k 421@15 esa ekuuh; vfrfjDr eq[; U;kf;d eftLVªsV] iksdj.k ftyk tSlyesj }kjk fnukad 30-5-16 dks vUrxZr /kkjk 420] 467] 468] 471] 120 ch Hkkjrh; n.M+ lafgrk ds rgr vkjksi fojfpr dj fn;s x;s gSA vkidk mDr d`R; vidhfrZdj vkpj.k ,oa uSfrd iru v/kerk ls vUroZfyr vopkj dh Js.kh esa vkrk gS] ftlds fy, vki nks"kh gSA

vkjksi la[;k 3%& vki }kjk QthZ 'kS{kf.kd ;ksX;rk ds nLrkost ds vk/kkj ij ljiap xzke iapk;r fpUuw dks pquko yM+us ,oa mDr in ij fuokZfpr gksus ds izdj.k esa iapk;rhjkt vf/kfu;e 1994 dh /kkjk 38¼1½ ds varxZr lEHkkxh; vk;qDr tks/kiqj ds Lrj ij tkap yfEcr gS] ftlds fy, vki nks"kh gSA^^

3. Learned counsel appearing for the petitioner contended that the petitioner was placed under suspension inasmuch as, the charges were framed by the criminal court of competent jurisdiction against her for offences under Section 420, 467, 468, 471, 120-B IPC, however, vide order dated 3.1.17 passed by the Additional Sessions Judge, Jaisalmer in Revision Petition No. 54/16, the order passed by the Additional Chief Judicial Magistrate, Pokaran framing the charges against petitioner stands set aside and the matter stands remanded for consideration afresh and thus, as on the date, no trial is pending against the petitioner in the court of law and therefore, the order impugned placing the petitioner under suspension deserves to be set aside. Learned counsel submitted that the order passed by the Additional Chief Judicial Magistrate, Pokaran framing the charges having been set aside, the charge No. 2 levelled against the petitioner vide charge sheet dated 17.11.16 does not survive. It is submitted that so far as charge No. 1 is concerned, it already stand settled by this court that pre election disqualification cannot be inquired into under Section 39 of the Act and therefore, the inquiry initiated against the petitioner in respect of pre election disqualification is ex facie without jurisdiction. In support of the contention, learned counsel has relied upon a Full Bench decision of this court in 'Smt. Sameera Bano v. State of Rajasthan’, 2007(2) RLW 1674 and a coordinate Bench decision of Jaipur Bench of this court in S.B.C. Writ Petition No. 16070/15 'Bhupendra Singh Hada v. State of Rajasthan & Ors.'. Learned counsel submitted that charge No. 3 as framed does not constitute a charge of misconduct. Accordingly, it is submitted that the impugned charge sheet deserves to be quashed.

4. On the other hand, Additional Government Counsel submitted that if the charges of moral turpitude are framed against an elected representative of Panchayati Raj Institution, the State Government is empowered to initiate the proceedings under Section 38 of the Act. However, it is not disputed by the learned AGC that in view of the decision of this court in Sameera Bano's cas