Sunil Kumar 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/l) 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 regis- tered 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.
3. 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 peti- tioner 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 Lai Birla v. State of Rajasthan (1).
4. 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 im- pugned 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.
5. Heard and perused the record.
6. 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.'
7. 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 iriitiat'ed 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/l) 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. I (State of Rajasthan through the Secretary, Panchayati Raj Department), it was clearly men- tioned that since challan was filed against the petitioner for the aforesaid offences, therefore, he was put under suspension.
8. 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
9. A Division Bench of this Court in the case of Banshidhar Saini v. 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.
10. In 'Common Cause', A Registered Society Through its Director v. Union of India (3), while explaining the phrase 'pendency of trials' aixl the phrase 'non-com- mencement of trial', the Hon'ble Supreme Court has said as under:
(i) In case of trials before Sessions Court the trials shall be treated to have commenced when charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the concerned cases.
(ii) In cases of trial of warrant cases by Magistrate if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973 while in trials of warrant cases by Mag- istrate when cases are instituted otherwise than on police report such trial shall be treated to have commenced when charges are framed against the concerned accused under Section 246 of the Code of Criminal Procedure, 1973.
(iii) In cases of trials of summons cases by Magistrate the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty or have any defence to make.'
11. Similar view has been taken by this Court in the case of Narain Lal Birla (supra).
12. Thus, it can be concluded that pendency of trial in the court of law if provisions of Section 38(4) of the Act of 1994 are interpreted would be from the stage of framing of charges and not prior to that.
13. In the present case, there is no dispute on the point that when the impugned order dtd. 14.10.2003 (Annex.P/1) was passed by the respondent No. 1 (Slate of Rajasthan through the Secretary, Panchayati Raj Department, Jaipur), no charges were framed against the petitioner and the same is evident from the order- sheet dtd. 11.11.2003 (Annex.P/2) of that criminal case as upto that stage, charges were not framed against the petitioner and the case was fixed for argument on the-question of framing Of charges and the next date fixed in the matter is now 22.04.2004. Thus when the 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) under Section 38(4) of the Act of 1994, criminal proceedings in regard to any offence involving moral turpitude were not pending trial in the court of Judicial Magistrate, Asind. Section 38 (4) of the Act of 1994 authorities the State Government to pass an order of suspension only when the criminal case is not only pending trial in the court of law, but in that cases, charges have also been framed. Since in the present case, the charges were not framed against the petitioner in that criminal cases, the order dtd. 14.10.2003 passed by the respondent No. 1 (State of Rajasthan through the Secretary, Panchayati Raj Department, Jaipur) was without authority of law and is liable to be set aside.
14. Apart from this, there is one more aspect of the matter that should also be considered that 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 Depart- ment, Jaipur) there is only reference that challan has been filed without mentioning the offences for which challan was filed and in absence of that it cannot be said that the any criminal proceeding for offence involving moral turpitude was pending trial against the petitioner and from this point of view also 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) cannot be sustained and this writ petition is liable to be allowed.
For the reasons mentioned above, the present writ petition is allowed and the impugned order dtd. 14.10.2003 (Annex.P/1) passed by the respondent No. 1 is quashed and set aside. It is made clear that the respondents are competent to take up proceedings against the peti- tioner in exercise of powers under Section 38(4) of the Act of 1994 if criminal proceedings are pending trial in the court of law in regard to an offence involving moral turpitude against the petitioner and decision in this case would not be treated as an impediment in exercise of that power.