CWP No. 10718 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 10718 of 2009 (O&M) Date of Decision: 28.07.2010 Gurmukh Singh ...Petitioner Vs. The State of Punjab & Ors. ...Respondents CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Ms.Sushma Chopra, Advocate, for the petitioner. Mr.N.S.Virk, Addl.A.G., Punjab. Mr.Vivek K.Thakur, Advocate, for applicant in CM No.20493 of 2009. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J . (Oral) CM No.20493 of 2009 Allowed. Applicant Smt.Jaswinder Kaur is allowed to be impleaded as CWP No. 10718 of 2009 2 respondent No.5. CR No.10718 of 2009 The petitioner by invoking the writ jurisdiction of this court under Articles 226 and 227 of the Constitution of India challenged the order dated 14.5.2009, Annexure P.3, passed by the Director, Rural Development and Panchayats, Punjab and order dated 6.7.2009, Annexure P.4, passed by the Financial Commissioner and Secretary, Department of Rural Development and Panchayats, vide which the petitioner stands suspended under section 20 (3) of the Punjab Panchayati Raj Act, 1994 (for short the Act) and has been stopped from participating in the proceedings of the Gram Panchayat. ` The facts leading to the filing of the writ petition are, that the petitioner was elected as Panch 4th time of Gram Panchayat Dhandowal Tehsil Shahkot, District Jalandhar in the elections held in May 2008. The case of the petitioner is, that he belongs to Congress Party, therefore, taking cognizance of the complaint filed in 2004 with the Block Development and Panchayat Officer on the allegations that he had cut 20 trees belonging to the Gram Panchayat and sold them in the year 2004, the Block Development and Panchayat Officer ordered the registration of FIR No.259 dated 10.10.2008 under section 379 IPC. On 20.1.2009, BD&PO, Hoshiarpur recommended to the Director Rural Development & Panchayat Department for initiating the proceedings under section 20 (3) of the Act. Copy of the letter has been attached as Annexure P.1 to the writ petition. CWP No. 10718 of 2009 3 On the basis of the recommendation made by the Block Development & Panchayat Officer, Director, Rural Development & Panchayat Department vide his letter No.7031 dated 20.2.2009 issued a show cause notice to the petitioner calling upon him to file reply to the show cause notice within 10 days. The petitioner was also called for personal hearing on 17.3.2009. The petitioner submitted a detailed reply to the show cause notice, and attached copy of jamabandi for the year 2005-06 showing that the land belonged to the petitioner. The Director, Rural Development and Panchayat Department, Punjab, Chandigarh, without considering the reply to the show cause notice placed the petitioner under suspension and debarred him from participating in the meeting of the Gram Panchayat. It is the case of the petitioner that the copy of inquiry report on the basis of which action was taken was not supplied to the petitioner . The petitioner preferred an appeal against the order of suspension before the Financial Commissioner and Secretary to Government of Punjab, Chandigarh. The appeal was also dismissed. The petitioner challenged the impugned order by submitting that FIR under Section 379 IPC registered against the petitioner, was beyond period of limitation prescribed under section 468 of the Code of Criminal Procedure, therefore, no cognizance of offence under section 379 IPC could be taken on expiry of 3 years. The case pleaded was, that object of passing of the order was to debar the petitioner from participating in the CWP No. 10718 of 2009 4 panchayat proceedings. The impugned orders were challenged on the grounds: (i) That the petitioner could not be suspended on the basis of complaint filed in the year 2004; (ii) That power under Chapter 4 of the Punjab Panchayati Raj Act,1994, could not be exercised against the Panch; (iii) That the orders passed were without application of mind, and without considering reply submitted by the petitioner.” In the reply filed, the respondents took a stand that the petitioner has been suspended, being an accused in a theft case of panchayat property, after holding detailed inquiry, and that a case under section 379 IPC has been registered against the petitioner for theft of trees belonging to the Gram Panchayat i.e. public property. Case was registered against the petitioner on the basis of resolution passed by the Gram Panchayat. Copies of resolution passed by the Gram Panchayat, have been placed on record as Annexure R.1 and Annexure R.2. Ms. Sushma Chopra, learned counsel appearing on behalf of the petitioner challenged the impugned order, by contending that the complaint with regard to the theft was with respect to an incident alleged to have taken place in the year 2004, therefore, it was not permissible to take cognizance of the case on 10.10.2008, because of the bar under section 468 Cr.PC which reads as under:- “468. Bar to taking cognizance after lapse of the period of CWP No. 10718 of 2009 5 limitation.(1) Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.” The contention of the learned counsel for the petitioner was that as maximum sentence provided for an offense under section 379 IPC is three years, therefore, it was not permissible for the court to take cognizance of the case on expiry of 3 years. Though prima facie there is force in the contention raised by the learned counsel for the petitioner, however, in this case the petitioner had approached this court under section 482 Cr.P.C. for quashing the FIR on the ground of limitation. However, that petition was disposed of with CWP No. 10718 of 2009 6 liberty to the petitioner to raise the plea of limitation before the learned Magistrate. Challan against the petitioner was presented as the learned Magistrate did not agree with the contention, by placing reliance on the judgment of this court in the case of B.B.Singhal Vs. Central Bureau of Investigation 2007 (1) RCR (criminal) 93, wherein this court was pleased to lay down as under:- “42. Section 473 of the Code confers powers upon a court notwithstanding any thing contained in the provisions of Chapter XXXVI to take cognizance of offences, where cognizance is barred by limitation. Section 473 of the Code confers powers to condone delay in two separate and distinct situations, one independent of the other. The first part of Section 473 of the Code empowers a Court to take cognizance, where cognizance of an offence is barred by limitation, if, for reasons to be disclosed, a Court is satisfied as to the sufficiency of the cause shown. The second part of Section 473 of the Code empowers a Court to condone delay, if “interest of justice” so demands. The expression “interest of justice” appearing in Section 473 of the Code, is not ejusdem generis to the power, conferred by the first part of Section 473 of the Code and confers an independent power upon a Court to condone delay. An order condoning delay must disclose a judicious exercise of discretion. The discretion, so exercised, must not be CWP No. 10718 of 2009 7 capricious or arbitrary and must be supported by a process of reasoning culminating in a reasoned order. 43. The facts of the present case, as disclosed in the final report, and as narrated herein above, reveal that the petitioners are accused of theft of electricity. Electricity is public property, a commodity that runs the wheels of an economy, without which our modern way of life would come to a standstill. Theft of public property is a grave and serious offence. The expression “interest of justice” is not an empty platitude to the word justice. It inheres, not merely a power but an obligation to advance the cause of justice. All offences are invariably offences against public interest and, therefore, it may be canvassed with a decree of conviction, that if delay is condoned, in the interest of justice, it would render the provisions of Section 468 of the Code otiose. There is a palpable difference between offences, which involve theft of public property, and other offences. Theft of electricity of public property cannot be equated with other offences and, therefore, as circumstances, being exceptional, they require that the petitioners be tried for the offences charged delay notwithstanding.” Section 473 Cr.PC reads as under:- “473. Extension of period of limitation in certain cases. CWP No. 10718 of 2009 8 Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice.” Reading of the provision of Section 473 of the Code of Criminal Procedure shows, that the delay can be condoned only if the court is satisfied on exceptional circumstances of the case, that the delay has been properly explained or that it is necessary to do so in the interest of justice. 'Interest of justice' would require an application of mind by the court before any sanction is granted, the order passed, by the learned Magistrate in the present case is not strictly in terms of Section 473 of the Code, but this court being bound by the judgment of co-ordinate Bench in the case of B.B.Singhal Vs. Central Bureau of Investigation (supra), specially when in this case another Co-ordinate Bench gave liberty to the petitioner, to raise this point before the learned Magistrate. There is, thus, no ground to accept the contention of the learned counsel for the petitioner to hold, that the cognizance of the offence was wrongly taken by the Criminal Court in framing the charge against the petitioner. Learned counsel for the petitioner thereafter contended that the suspension of a Panch/Sarpanch cannot be ordered merely because an FIR/Charge-sheet is framed against the petitioner, as in that event the CWP No. 10718 of 2009 9 power can be misused, and an elected Panch/Sarpanch can be debarred from performing his duties merely by registering a false case like the one in the present case, as the authorities under the Punjab Panchayati Raj Act have not taken into consideration, the defence of the petitioner, that he was owner of the land though proved from the jamabandi placed on record. Learned counsel for the petitioner placed reliance on the judgment of this court in the case of Sahib Singh Vs. State of Haryana & Ors. 2003 (2) RCR 398, wherein this court admitted a writ petition filed by the petitioner in the said case by observing, that prima facie it appears, that when a person is involved in criminal case, same may not, in all events, be such that may amount to moral turpitude, and is likely to embarrass him in discharge of his duties. That being so, the Hon'ble Court was of the view that the matter needed deep consideration, as it could not be decided at the motion stage. This plea of the learned counsel for the petitioner again cannot be accepted as the Hon'ble Division Bench of this Court in the case of Gian Chand Vs. State of Haryana & Ors. 2002 (4) RCR (Civil) 327, held that as criminal case regarding theft against the person who had confessed his guilt during investigation, then the order of suspension would be conformity with the provisions of the statute. The Hon'ble Division Bench of this Court in the case of Dev Singh Vs. State of Punjab and others, 1996 (2) PLR 456, again held, that when a Sarpanch/Panch is involved in a criminal case involving moral turpitude,his suspension would be proper and would not amount to violation CWP No. 10718 of 2009 10 of principles of natural justices. The Hon'ble Division Bench of this Court in the case of Smt. Sheela Devi Vs. State of Haryana & Another, 2009(3) RCR (Civil) 686, again upheld the suspension of a Sarpanch on account of registration of FIR under Sections 420/406 IPC by holding it to be an act involving moral turpitude. In view of the law laid down in the judgments referred to above, it is not open to the petitioner to challenge the order of suspension by contending, that mere registration of the case cannot be a ground to suspend a Sarpanch/Panch. The learned counsel for the petitioner, thereafter contended, that the impugned order cannot be sustained, as the action, if any, could be taken under Section 216 of the Act, which deals with the situation, like the one, faced by the petitioner. The contention of the learned counsel was, that once a specific provision is made under the Act, it was not open to the authorities to resort to the criminal proceedings. This contention of the learned counsel for the petitioner cannot be accepted in view of the Division Bench judgments of this court referred to above, which are binding on this Court, therefore, this contention also deserves to be noticed to be rejected. It was also the contention of the learned counsel for the petitioner, that provisions under Chapter 4 of the Act could only be exercised against the Sarpanch and not Panch. This plea again deserves to be noticed to be rejected, as the CWP No. 10718 of 2009 11 action has been taken against the petitioner under Section 20 (3) of the Act, which gives powers to the Director to suspend any Sarpanch or Panch. For the reasons stated, finding no merit in the writ petition, it is dismissed, but with no order as to costs. 28.07.2010 (Vinod K.Sharma) rp Judge