Important Point—When court of law has taken cognizance on the basis of result of investigation submitted by Police and thereafter when charges have been framed, matter should be taken to have been judicially scrutinized.

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. 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 oppo