KOTHARI, J. - (1.) THIS petition has been filed by elected Sarpanch of Gram Panchayat, Seruna, Tehsil Sri Doongargarh in Dist. Bikaner aggrieved by the judgment and order dated 16. 2. 2006 passed by the Election Tribunal i. e. the learned Dist. Judge, Bikaner allowing the election petition No. 58/2005 filed by the defeated candidate Chimna Ram.
(2.) THE said defeated candidate, petitioner before the Election Tribunal filed the aforesaid election petition against the present petitioner Tola Ram on the ground that the said person Tola Ram had been charged with an offence under Section 120b I. P. C. in case No. 58/2003 on 6. 11. 2003 along with six other co- accused persons and the said trial was pending in the Court on the date when he filed nomination for election of Sarpanch on 3. 2. 2005 and, therefore, the said respondent Tola Ram, present petitioner incurred disqualification under Section 19 (gg) of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as the Act) and therefore, his election deserved to be set aside. Mr. Vijay Bishnoi, learned counsel for the petitioner Tola Ram urged the following submissions before this Court in the present writ petition: i) The sole basis taken by the Election Tribunal for allowing the election petition was Annex. 12, which was Ex. 9 before the Election Tribunal and it was the charge framed by the trial Court in which the petitioner Tola Ram was charged under Section 120b I. P. C. , however, the said document was not in fact admissible in evidence and the learned Election Tribunal did not follow mandatory provisions of C. P. C. particularly order 13 Rule 4 C. P. C. and had wrongly marked the same as Exhibit 9 as admissible in evidence on the date of judgment itself on 16. 2. 2006 and therefore, the judgment of the Election Tribunal deserved to be set aside. ii) Section 19 (gg) of the Act could apply only if the charge framed against the petitioner was for any offence punishable with imprisonment for five years of more, whereas the charge-sheet Annex. 12 was only under Section 120b I. P. C. and since Sub-Section (2) of Section 120b I. P. C. provided for punishment if the case did not fall under Section 120b (1) I. P. C. , of six months, the petitioner could not be disqualified under Section 19 (gg) of the Act. In other words, he submitted that since no other provision was mentioned along with Section 120b I. P. C. and the petitioner alone was charged under Section 120b I. P. C. without the name of any other conspirator mentioned in the said charge-sheet, Annex. 12, said charge- sheet could not furnish the basis for invoking provisions of Section 19 (gg) of the Act and thus, the Election Tribunal had erred in setting aside the election of the petitioner. iii) Lastly, Mr. Bishnoi also submitted that though ultimately in the said trial, all the accused persons involved in the incident dated 18. 2. 2000 which was subject matter of criminal case No. 58/2003 tried by the learned Court of Additional Dist. Judge (Fast Track) No. 2, Bikaner were acquitted by an order dated 25. 6. 2005, but he fairly also submitted that subsequent acquittal by the trial Court is not really important for deciding as to whether Section 19 (gg) of the Act would apply in the present case or not. On the basis of aforesaid contentions, the learned counsel for the petitioner relying on the various judgments submitted that the order of the Election Tribunal was unsustainable and deserved to be quashed and set aside. On the side opposite, Mr. P. P. Chaudhary, learned counsel for the respondent No. 2, defeated candidate Chimna Ram and the petitioner before the Election Tribunal submitted that the Election Tribunal could not act as Trial Court holding criminal trial against the petitioner and in view of the admitted position on the side of the petitioner that he was charged under Section 120b I. P. C. in Case No. 58/2003 along with six other co-accused persons for criminal assault, abduction of one Sh. Shyam Sunder Pareek in an incident which took place on 18. 2. 2000 etc. under various provisions and said trial was pending against all these persons persons including the petitioner, there was no occasion for the Election Tribunal to look any further and the petitioner was thus, clearly disqualified under Section 19 (gg) of the Act on the date of filing of his nomination for the post of Sarpanch on 3. 2. 2005, when the said trial was admittedly pending against him. He also reiterated that subsequent acquittal in the absence of prosecution proving its case before the said Court is of no consequence in the present matter. He urged that the petitioner could not say that charge under Section 120b I. P. C. against him alone could not stand because firstly it is not for the Election Tribunal to look into this aspect of the matter and secondly the fact that the said petitioner was being tried in a particular criminal trial in case No. 58/2003 along with six other accused persons for heinous offence like one under Sections 395, 365, 307, 323, 325, 147 and 148 of I. P. C. , it was enough for the Election Tribunal to hold an opinion that the petitioner was charged with an offence which is punishable with five years' imprisonment or more irrespective of the fact that ultimately he is acquitted in the matter. He further urged that Ex. 12 charge- sheet Annex. 12 clearly mentions that the petitioner was charged under Section 120b I. P. C. along with other accused persons in trial of case No. 58/2003 for offence of a serious nature. Therefore, he submitted that learned Election Tribunal had correctly set aside the election of the present petitioner and the present writ petition deserved to be dismissed. I have heard the learned counsel at length and given my thoughtful consideration to the relevant provisions of law, the case laws cited at the Bar and the arguments of the learned counsel for the parties and I have perused the record. Section 19 (gg) of the Act which falls for consideration in the present matter is reproduced hereunder:      " 19. Qualification for election as a Panch or a member:- 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- (a ). . . . . (b ). . . . . (c ). . . . . . . (d ). . . . . . (e ). . . . . . . (f ). . . . . . . (g ). . . . . . . . (gg) 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. "
(3.) THE first contention of the learned counsel for the petitioner that Ex. 12, document framing charge against the petitioner was not admissible in evidence as there non-compliance of the provisions of Order 13 Rule 4 C. P. C. and Rule 50, 51, 55 of the General Rules (Civil), 1986 does not impress this Court. THE said charge in the prescribed form No. 22 is in fact in pursuance of order framing charge which was passed by the learned trial Court on 6. 11. 2003, which is Annex. 5 of the writ petition. In the said order, it is clearly stated that the petitioner Tola Ram has been charged under Section 120b I. P. C. and other accused Bhagwan Ram, Mewa Ram, Om Prakash, Sahi Ram and Ram Kishan under various provisions of I. P. C. stated in that order. THE said document is a public document and therefore, the same could be admitted in evidence by the Court and Rule 51 (1) of the General Rules (Civil) of 1986 clearly stipulates that the documents which do not require proof e. g. Public documents and documents admitted by the party against whom they are produced in evidence shall be admitted in evidence and marked as exhibits in the manner prescribed in Rule 50. If the document is not admitted by a person, but is a public document, the Court is certainly entitled to admit the same in evidence without the same being proved and therefore, the learned Election Tribunal cannot be said to have committed any error in admitting the same in evidence and marking the same as Ex. 9 even it be on the date of judgment itself and consider the same in accordance with law. The second contention of the learned counsel for the petitioner that the petitioner alone was charged with Section 120b I. P. C. and no other accused was charged under Section 120b I. P. C. and therefore, prima facie no case under Section 120b I. P. C. was made out as there was no co-conspirator named in the charge-sheet, also does not cut much of the ice. The said charge- sheet Annex. 12 firstly not only refers to the case No. 58/2003 and Section 120b I. P. C. , but in the charge framed against the petitioner, it also clearly stipulates that for the incident which took place on 18. 2. 2000, he acted with other accused persons for criminal assault etc, of one Shyam Singh Pareek clearly shows that the present petitioner was accused and charged of offence along with the co-accused persons against whom separate charges were framed for offences under Sections 395, 307, 323 I. P. C. etc. as aforesaid which carried punishment of life imprisonment also more than 5 years, therefore, the Election Tribunal which was not required to apply its mind to the sustainability of that charge against the petitioner while trying the said Election Petition, cannot be said to have committed any error in applying Section 19 (gg) of the Act to the case of the petitioner in these circumstances. The contention of the learned counsel for the petitioner relying on the various judgments like AIR 1956 (SC) 33 - Topan Das. vs. State of Bombay, AIR 1990 (SC) 1210 Ex-Sepoy Haradhan Chakrabarty vs. Union of India, AIR 1984 SC 1793 - Vinayak vs. State of Maharashtra, upon requirement of there being at least two persons for an offence under Section 120b I. P. C. are not applicable in the present case because prima facie once charge against the petitioner was framed by the Criminal Court under Section 120b I. P. C. and this position was also accepted by him in the reply filed by the present petitioner to the election petition, which is Annex. 2 of the writ petition and in para 3 of the said reply, it is clearly stated by him that " it is true that against the respondent Tola Ram charge under Section 120b I. P. C. has been framed by the Court on 6. 11. 2003", in the opinion of this Court, it was enough for the Election Tribunal to apply Section 19 (gg) of the Act to the petitioner. Obviously, the Election Tribunal was not holding criminal trial and therefore, its pronouncement on the validity of charge under Section 120b of the Act was not the question which fell for determination by the Election Tribunal. The Election Tribunal with reference to Annex. 12 document which gave reference to case No. 58/2003 and in view of order dated 6. 11. 2003 of Trial Court could safely hold that case prima facie fell under Section 120b (1) of the IPC and Section 19 (gg) of the Panchayati Raj Act would thus, apply to the case of the petitioner. Since both the counsels rightly submitted that subsequent acquittal of the petitioner and other co-accused in the said trial on 25. 6. 2005 was of no importance and admittedly, since on the date of filing of nomination on 3. 2. 2005, the said trial was pending against the present petitioner also who was charged with offence under Section 120b I. P. C, this Court finds no error in the judgment of the Election Tribunal in holding the petitioner to be disqualified under Section 19 (gg) of the Act and setting aside his election by accepting the Election Petition of the respondent No. 2. ;