The pendency of recovery proceedings does not create a bar for prosecution if a cognizable offence is made out. Lodging of FIR cannot be preempted, and the authorities are expected to function under statute without interference in their statutory duties.

(Heard through Video Conferencing) ORDER PURUSHAINDRA KUMAR KAURAV, J. : – This intra Court appeal takes exception to order dated 28-1-2022, passed by the learned Single Judge in Writ Petition No. 1558 of 2022, whereby, petition filed by the appellant/petitioner has been dismissed.

2. The appellant/petitioner is a retired Panchayat Co-ordinator, Gram Panchayat, Pipariya and Bagaihatola, Janpad Panchayat, Kotma, District Anuppur, who has been superannuated with effect from 31-12-2021 on attaining superannuation age. It is seen that earlier the appellant/petitioner has preferred Writ Petition No. 14704 of 2010 (s) against order dated 14-10-2010 and this Court vide order dated 10-11-2010, directed that no recovery shall be made from the appellant/petitioner, as per order dated 14-10-2010. Vide another communication dated 26-5-2012 (Annexure-P/3), the Collector again directed Chief Executive Officer that in compliance of the order passed by this Court in Writ Petition No. 14704 of 2010 (s), recovery cannot be effected from the appellant/petitioner, however, the matter was directed to be reported to the police for appropriate enquiry in accordance with law, on account of his fraudulent act of cheating and misappropriating the amount of Panchayat fund.

3. The appellant/petitioner challenged the orders dated 14-10-2010 and 26-5-2012 under Rule 3 of the M.P. Panchayats (Appeal and Revision) Rules, 1995 framed under the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as “Act of 1993”), before the Divisional Commissioner. The Divisional Commissioner, vide order dated 10-1-2020 found that in view of the interim order passed by this Court in Writ Petition No. 14704 of 2010 (s) no recovery can be made from the appellant/petitioner till the said order remains in operation. However, the communication dated 26-5-2012 was not interfered with as the same was related to the directions of lodging the FIR against the appellant/petitioner and there was no stay against the communication dated 26-5-2012. Challenging the order dated 10-1-2022 (Annexure-P/1), the appellant/petitioner has approached this Court under Article 226 of Constitution.

4. The learned Single Judge vide impugned order did not find any substance and has dismissed the writ petition holding that if the cognizable offence is made out, the pendency of the recovery proceedings will not create a bar for prosecution of the appellant/petitioner. Hence, the appellant/petitioner is in present intra Court appeal.

5. The learned counsel appearing for the appellant/petitioner has taken us to sections 89 and 92 of the Act of 1993 and contended that both these sections are interconnected. As per section 89 of the Act of 1993, the office bearers can be held to be responsible for loss, waste or misappropriation of any money or other property of the Panchayat or Gram Nirman Samiti and Gram Vikas Samiti or Committee of Gram Sabha to which he has been a party or which has been caused by him by misconduct or gross negligence of his duties. However, as per submission of the appellant/petitioner, no recovery can be made unless a reasonable opportunity of being heard is given. According to him, section 92 of the Act of 1993 also empowers the prescribed Authority to recover records, articles and money while taking recourse to the provisions of the said Act. However, neither section 89 nor section 92 of the Act of 1993 can be invoked against the appellant/petitioner when there is already stay against recovery. He places reliance on the decision of the Division Bench of this Court in the case of Narendra Pandey vs. State of Madhya Pradesh and others, 2017(3) M.P.L.J. 384 and decision of learned Single Judge in the case of Kadam Singh vs. CEO and others, 2019(1) M.P.L.J. 420.

6. On the strength of the aforesaid submissions, he prays that the directions of lodging an FIR are completely uncalled for and, therefore, this Court must interfere.

7. We are not impressed with t