GARG, J. - (1.) THE petitioner has filed the present writ petition under Article 226 of the Constitution of India on 4. 11. 03 against the respondents with a prayer that by an appropriate writ, order or direction the order of suspension dtd. 14. 10. 2003 (Annex. P/1) passed by the respondent No. 1 (State of Rajasthan through the Secretary, Panchayati Raj Department, Jaipur) under Section 38 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act of 1994) be quashed and set aside as on that date no criminal proceedings were pending against the petitioner.
(2.) THE facts of the case as put forward by the petitioner are as under: i) That the petitioner was elected as Sarpanch of Gram Panchayat Mozpura, Panchayat Samiti, Asind in the general elections held in January, 2000. ii) Further case of the petitioner is that due to political rivalry, a report was lodged against the petitioner in the Police Station Badnaur, Dist. Bhilwara and the basis of that report, a FIR (Annex. R/5) was registered for offence under Sections 406, 420, 467, 468 and 471 I. P. C. against the petitioner and some other persons and later on challan was filed against the petitioner and some other persons for the aforesaid offences in the Court of Judicial Magistrate, Asind. ii) Further case of the petitioner is that after filing of the challan against him, impugned order dtd. 14. 10. 2003 (Annex. P/1) was passed by the respondent No. 1 (State of Rajasthan through the Secretary, Panchayati Raj Department, Jaipur) and in that order dtd. 14. 10. 2003 (Annex. P/1) it has been mentioned that since challan has been filed against the petitioner therefore, in exercise of power under Section 38 (4) of the Act of 1994, the petitioner was placed under suspension and this order dtd. 14. 10. 2003 (Annex. P/1) has been challenged in this writ petition. In this writ petition, the main submission of the learned counsel for the petitioner is that simply because the challan has been filed, it cannot be said that any criminal proceedings involving moral turpitude were pending trial against the petitioner and therefore, the petitioner could not have been placed under suspension merely on the basis of filing challan and the word "pending proceedings" includes framing of charges and till the charges are framed, it cannot be said that any criminal proceeding was pending trial against the petitioner and thus, the impugned order dtd. 14. 10. 2003 (Annex. P/1) passed by the respondent No. 1 (State of Rajasthan through the Secretary, Panchayati Raj Department, Jaipur) is illegal and is liable to be set aside and in this respect the learned counsel for the petitioner has placed reliance on the case of Narain Lal Birla vs. State of Rajasthan (1 ). Reply to the writ petition was filed by the respondents and their case is that since challan was filed against the petitioner, therefore, it could be taken for granted that criminal proceedings were pending against the petitioner and hence the impugned order dtd. 14. 10. 2003 (Annex. P/1) was rightly passed by respondent No. 1 (State of Rajasthan through the Secretary, Panchayati Raj Department, Jaipur) and hence the writ petition be dismissed. Heard and perused the record. For convenience, Section 38 (4) of the Act of 1994 under which the powers have been exercised for suspension of the petitioner from the post of Sarpanch is quoted hereunder: " Section 38. Removal and Suspension: (1 ). . 2 . 3 . (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. "
(3.) FROM the entire reading of Section 38 (4) of the Act of 1994, it is clear that the powers of suspension are to be exercised if (i) an enquiry has been initiated under sub-section (1) against the Sarpanch or (ii) if criminal proceedings in regard to an offence involving moral turpitude is pending trial in a court of law. In the present case impugned order dtd. 14. 10. 2003 (Annex. P/1) was passed by the State of Rajasthan through the Secretary, Panchayati Raj Department (respondent No. 1) not on the ground that an enquiry has been initiated under sub-section (1) of Section 38 of the Act of 1994, but the impugned order dtd. 14. 10. 2003 (Annex. P/1) was passed on the ground that since criminal proceedings were pending trial against the petitioner in the Court of Judicial Magistrate, Asind, therefore, the petitioner was suspended. In the impugned order dtd. 14. 10. 2003 (Annex. P/1) passed by the respondent No. 1 (State of Rajasthan through the Secretary, Panchayati Raj Department), it was clearly mentioned that since challan was filed against the petitioner for the aforesaid offences, therefore, he was put under suspension. The question which arises for consideration is whether in view of filing of challan in the court of Judicial Magistrate, Asind, can it be said that any criminal proceedings are pending trial against the petitioner or not? A Division Bench of this Court in the case of Banshidhar Saini vs. State of Rajasthan (2), had an occasion to consider Section 17 (4a) of the Rajasthan Panchayati Raj Act, 1953 which is akin to the provisions of Section 38 (4) of the Act of 1994 and held that unless a charge is framed, it cannot be said that any case is pending trial as in warrant cases before a Magistrate, the stage before the charges are framed would be considered as enquiry is pending and stage of pending trial means when the charges are framed. In other words the words "pending trial" which are found in Section 38 (4) of the Act of 1994 would mean the stage when the charges are framed and not before that. ;