Full Judgment
Writ Petition No.7034/2008 4.1.2013 Shri Ajay Pal Singh, Advocate, for the petitioneRs.Shri S.M.Lal, Government Advocate, for the State.
Petitioner no.1 is Sarpanch and petitioner no.2 is Secretary of Gram Panchayat Bakho, Zila Panchayat Budhar, District Shahdol.
A joint enquiry was conducted by a committee comprising of officers regarding payment of the amount made by the petitioners during the year 2006-07 under National Rural Employment Guarantee Scheme (NREGS).The enquiry report reveals that they committed serious financial irregularities by making excess payment of Rs.11.92 lac.
Respondent no.3 Chief Executive Officer and Additional District Programme Coordinator NREGS, therefore, by the impugned communication dated 29.5.2008, Annexure P1, directed respondent no.4 Chief Executive Officer, Janpad Panchayat, Budhar, to lodge a fiRs.information report against the petitioners at Police Station Budhar.
Alongwith the communication, respondent no.2 also annexed the enquiry report.
Respondent no.3 in turn vide Annexure P2, dated 9.6.2008, directed respondent no.5 Assistant Engineer, NREGS, to lodge the fiRs.information report.
It is in this background the petitioners have filed the present petition for quashing of communications dated 29.5.2008 Annexure P1 and dated 9.6.2008 Annexure P2.
The learned counsel for petitioners has argued that no opportunity of hearing was been given to the petitioners before taking a decision to lodge the fiRs.information report.
The learned counsel has also argued that the decision to lodge the fiRs.information report is contrary to section 92 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993.
It is well settled that the rule of audi alteram partem is not attracted during the investigation of a crime under the Criminal Procedure Code (See Union of India v.W.N.
Chadha AIR 199.SC 1082).Also a person is not entitled to be heard in a preliminary enquiry or investigation when at a later stage he is to get full opportunity of defending himself before any final decision is taken against him.
In the case at hand, if after investigation the police files a charge sheet against the petitioners they will get full opportunity to defend themselves during trial.
Section 92 of the Adhiniyam also does not help the petitioners because it relates to power of the prescribed authority to recover records, articles and money from a person who has unauthorisedly retained them in his custody.
The allegation against the petitioners is that they have made excess payment of Rs.11.92 lac by committing grave financial irregularities.
For these reasons, I find no merit in the petition.
It is accordingly dismissed.
In the result, the interim stay order dated 25.6.2008 stands vacated.
A copy of this order be immediately sent to respondent nos.2 to 7 for information and taking appropriate action in the matter.
JUDGE ps