# Smt. Sangeeta Devi v. The State of U.P. & others

- **Citation:** (2008) 2 ILRA 627
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-21
- **Case number:** Special appeal No.682 of 2008
- **Bench:** S. Rafat Alam, Vikram Nath
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sangeeta-devi-v-the-state-of-u-p-others-41054
- **Pages:** 6

## Headnote

628 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Enquiry
Rules
1997-Rule
4
and
5
readwith U.P. Punchayat Raj Act 1947Section
95
(1)(g)-ceasing
financial
power of village Pradhan-on certain
financial irregularity-show cause notice
before passing the order ceasing with
final financial power of village Pradhan
not necessary-at the stage of fact finding
enquiry.

Held: Para 13

That
apart,
having
regard
to
the
provisions of U.P. Panchayat Raj Act and
the Rules framed thereunder referred to
above, we are of the view that the order
withdrawing financial and administrative
power and function of the Pradhan or
Up-Pradhan under the proviso to Section
95 (1) (g) of the Act is in the nature of
interim order pending enquiry to prevent
misuse of financial and administrative
power and function by the Pradhan
facing
charges
of
financial
and
administrative irregularities and thus, at
this stage the Act or the Rule does not
contemplate to provide any opportunity
of hearing or show cause or participation
of Pradhan or Up Pradhan facing charges
in the preliminary enquiry.
Case law discussed:
1997 (1) AWC 251, 2003 (1) UPLBEC 736

## Text

2 All] Jhabbu Lal and others V. State of U.P. and another
627
sheet No.113/2005 was submitted against
all the accused-applicants under Sections
32, 504, 506 I.P.C. on 29.10.2005. It
appears that subsequently a copy of the
aforesaid
application
under
Section
156(3) Cr.P.C. along with a carbon copy
of the aforesaid order dated 3.5.2005 was
again sent to the police station Dannahar
for compliance and on the basis of that
order again a First Information Report
was registered in respect of the same
incident as Case Crime No.C-5/2006. The
police again investigated the case, though
the investigation was conducted this time
by another investigating Officer; and this
time the charge sheet was submitted
against all the accused under Sections
323, 504, 506 and 308 I.P.C. The number
of this charge sheet is 14/2007. It has
been submitted that on this charge sheet
also, the Magistrate took cognizance and
passed an order in respect of the accused.
So, now the position is that in respect of
one and same incident which had
allegedly
taken
place
on
6.4.2005
between the same parties two F.I.Rs. were
registered and two charge sheets have
been filed on the basis of those two First
Information Reports and two separate
cases bearing no.2766 of 2005 and 325 of
2007 have been registered in the same
Court.

4. Learned counsel for the applicants
submitted that when the earlier First
Information Report had already been
registered against the accused and a
charge sheet had also been submitted after
investigation, there was no justification
for registration of the second First
Information Report and reinvestigation.
This contention is correct. There cannot
be two First Information Reports for the
same offence against the same persons.
Therefore, the second First Information
Report, which had been registered as Case
Crime No. 05 of 2006 is quashed and the
charge sheet submitted on the basis of that
First Information Report is also quashed.
However, taking into consideration that
there
are
allegations
in
the
First
Information Report that there was fracture
on the head of the mother of the
complainant, the Magistrate, at the stage
of framing the charges shall consider this
aspect of the case as to whether the
mother of the complainant had received a
fracture on her head or not, and if there
was any fracture, what offence is prima
facie made out against the accused in
respect of that fracture on the head, and
then he shall proceed with the case
registered as Case No.2766 of 2005 on the
basis of Case Crime No. 13 of 2005.

5. This petition under Section 482
Cr.P.C. is finally disposed of with the
above observations.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2008

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE VIKRAM NATH, J.

Special appeal No.682 of 2008

Smt. Sangeeta Devi
 ...Appellant
Versus
The State of U.P. & others...Respondents

Counsel for the Appellant:
Sri R.C. Singh

Counsel for the Respondents:
Sri O.N. Rai
S.C.

Uttar Pradesh Punchayat Raj (Removal
of Pradhan and Up-Pradhan & Member)
628 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Enquiry
Rules
1997-Rule
4
and
5
readwith U.P. Punchayat Raj Act 1947Section
95
(1)(g)-ceasing
financial
power of village Pradhan-on certain
financial irregularity-show cause notice
before passing the order ceasing with
final financial power of village Pradhan
not necessary-at the stage of fact finding
enquiry.

Held: Para 13

That
apart,
having
regard
to
the
provisions of U.P. Panchayat Raj Act and
the Rules framed thereunder referred to
above, we are of the view that the order
withdrawing financial and administrative
power and function of the Pradhan or
Up-Pradhan under the proviso to Section
95 (1) (g) of the Act is in the nature of
interim order pending enquiry to prevent
misuse of financial and administrative
power and function by the Pradhan
facing
charges
of
financial
and
administrative irregularities and thus, at
this stage the Act or the Rule does not
contemplate to provide any opportunity
of hearing or show cause or participation
of Pradhan or Up Pradhan facing charges
in the preliminary enquiry.
Case law discussed:
1997 (1) AWC 251, 2003 (1) UPLBEC 736

(Delivered by Hon'ble S. Rafat Alam, J.)

1. This is intra Court appeal, under
the Rules of tile Court arising from the
judgment of the Hon'ble Single Judge of
this Court dated 7.4.2008 dismissing the
petitioner-appellant's Civil Misc. Writ
Petition No.17785 of 2008 for quashing
the order of the District Magistrate,
Kushinagar dated 30.3.2008 whereby the
financial and administrative power of the
appellant has been suspended under the
proviso to Section 95 (1) (g) of the U. P.
Panchayat Raj Act, 1947 (for snort the
Act).

2. We have heard learned counsel
for the appellant and Sri O.N. Rai, learned
Standing
Counsel
for
the
Staterespondents and also perused the record.

3. It appears that a proceeding under
Section 95 (1) (g) of the Act is initiated
against the petitioner-appellant. It further
appears that the District Magistrate being
satisfied with the report of the preliminary
enquiry showing prima facie involvement
of the petitioner-appellant in the alleged
financial
and
other
irregularities,
withdrew the financial and administrative
power of tile appellant in exercise of the
power conferred under the first proviso to
Section 95 (1) (g) of the Act. The
aggrieved
appellant
preferred
the
aforesaid writ petition, which has been
dismissed by the Hon'ble Single Judge of
this Court, mainly on the ground that at
this stage the defence of the petitionerappellant and sufficiency or insufficiency
of the evidence in support of the
allegations cannot be looked into as the
formal enquiry is yet to be concluded and
the order to suspend the financial and
administrative power is as an interim
measure pending formal enquiry.

4. Learned counsel for the petitioner,
however, contended that the appellant was
not given sufficient opportunity to submit
effective reply to the charges nor the copy
of the enquiry report was provided, hence
the impugned order withdrawing the
financial administrative power deserves to
be set aside.

5. In our view, there is no substance
in the submission. The order impugned in
the writ petition is passed under first
proviso of Section 95 (1)(g) of the Act,
which empowers the State Government to
withdraw financial and administrative
2 All] Smt. Sangeeta Devi V. The State of U.P. and others
629
powers and function of Pradhan or Up
Pradhan, who is prima facie found to have
committed
financial
and
other
irregularities until he is exonerated of the
charges in the final enquiry and till then
such power shall be exercised by a
Committee consisting of three members
of Gram Panchayat. For ready reference
Section 95 (1)(g) of the Act is extracted
hereinafter:

"Section
95
(1)
-
The
State
Government may-
(a) xxxxx
(b) xxxxx
(c) xxxxx
(d) xxxxx
(e) xxxxx
(f) xxxxx

(g) Remove
a
Pradhan,
UpPradhan or member of a Gram Pnchayat
or
a
Joint
Committee
or
Bhumi
Prabandhak Samiti, or a Panch. Sahayakl
Sarpanch or Sarpanch of a Nyaya
Panchayat if he-

(i) Absents himself without sufficient
cause
for
more
than
three
consecutive meetings or sittings,
(ii) Refuses to Act or becomes incapable
of acting for any reason whatsoever
or if he is accused of or charges for
an offence involving moral turpitude,
(iii) has abused his position as such or
has persistently failed to perform the
duties imposed by the Act or rules
made thereunder or his continuance
as such is not desirable in public
interest, or
has taken the benefit of reservation
under sub-section (2) of Section 11-A or
sub-section (5) of Section 12, as the case
may be, on the basis of a false declaration
subscribed by him stating that he is a
member of the Scheduled Castes, the
Scheduled Tribes or the Backward
Classes, as the case may be.
(iv) being a Sahayak Sarpanch or a
Sarpanch of the Nyaya Panchayat
takes active part in politics, or
(v) suffers
from
any
of
the
disqualifications
mentioned
in
clauses (a) to (m) of Section 5-A:

Provided that where, in an enquiry
held by such person and in such manner
as may be prescribed, a Pradhan or upPradhan is prima facie found to have
committed
financial
and
other
irregularities such Pradhan or UpPradhan shall cease to exercise and
perform the financial and administrative
powers and functions, which shall, until
he is exonerated of the charges in the
final enquiry, be exercised and performed
by a Committee consisting of three
members of Gram Panchayat appointed
by the State Government."
6. Thus, where a proceeding for
removal of a Pradhan or UppPradhan or a
Member
of
a
Gram
Panchayat
is
undertaken and the matter is being
enquired under Section 95(1)(g) of the
Act, the State Government, if satisfied
that the Pradhan or Up-Pradhan is prima
facie found to have committed financial
and other irregularities, can cease the
financial and administrative powers and
functions, till he is exonerated of the
charges in the final enquiry in the manner
prescribed.

7. The power vested in the State
Government under Section 95 (1) (g) of
the Act has been delegated to the District
Magistrates
vide
Notification
No.
1648/33-1-1997-123/97, Lucknow dated
30th April, 1997 issued by the State
Government in exercise of powers under
630 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Section 96-A of the Act which enables the
State Government to delegate all or any of
the power under the Act to any officer or
authority subordinate to it subject to such
conditions and restrictions as it may deem
fit and proper.

8. The State Government has framed
Uttar Pradesh Panchayat Raj (Removal of
Pradhans, Up-Pradhans and Members)
Enquiry Rules, 1997 (hereinafter referred
to as the Rules) under Section 110 read
with Clause (g) of sub-section (1) of
Section 95 of the Act. Rule 3 provides
about procedure relating to complaints
against Pradhan or Up-Pradhan. Rule 4
provides about preliminary enquiry. It
reads as under:

"4.Preliminary Enquiry.- (1) The
State Government may, on the receipt of a
complaint or report referred to in Rule 3,
or otherwise order the Enquiry Officer to
conduct a preliminary enquiry with a view
to finding out if there is prima facie case
for a formal enquiry in the matter.
(2)
The
Enquiry
Officer
shall
conduct the preliminary enquiry as
expeditiously as possible and submit his
report to the State Government within
thirty days of his having been so
ordered."

9. Thus, where a complaint is made
against a Pradhan or Up-Pradhan under
Rule 3 of the Rules a preliminary enquiry
is made to find out the truth as to whether
the alleged complaint is vexatious,
frivolous or mala fide etc. Where in the
preliminary enquiry some substance in the
allegation and prima facie involvement of
Pradhan or Up-Pradhan in the alleged
financial and other irregularities is found
from
the
report
submitted
in
the
preliminary
enquiry,
the
State
Government shall direct for formal
enquiry under Rule 5 of the Rules which
provides as under:

"5. Where the State Government is of
the opinion, on the basis of the report
referred to in sub-rule (2) of Rule 4 or
otherwise that an enquiry should be held
against a Pradhan or Up-Pradhan or
Member under the proviso to clause (g) of
sub-section (1) of Section 95 it shall
forthwith
constitute
a
committee
envisaged to proviso to clause (g) of subsection 95, of the Act and by an order ask
an Enquiry Officer, other than the
Enquiry Officer nominated under sub-rule
(2) of Rule (4), to hold the enquiry."

10. Therefore, from a plain reading
of 1st proviso of Section 95 (1)(g) read
with Rule 4, it is evident that in the
preliminary enquiry Pradhan or UPpradhan facing charges in the alleged
complaint is not required to be noticed
nor any opportunity is to be provided for
the reason that it is merely a fact finding
enquiry to ascertain the correctness of the
allegations and to find out the bona fide of
the complaint. Obviously, if in the
preliminary enquiry allegations are found
baseless, the proceedings would be
dropped. However, the involvement of
Pradhan or Up-Pradhan, if prima facie is
found then only a regular enquiry is to be
initiated under Rule 5 of the Rules
whereunder the Enquiry Officer shall
deliver a copy of the Articles of charge,
the statement of the imputations and a list
of documents and witnesses by which
each article of charge is proposed to be
sustained and shall require that person by
a notice in writing to submit his written
statement of his defence within the
specified time and to state whether he
desires to be heard in person and to
2 All] Smt. Sangeeta Devi V. The State of U.P. and others
631
appear before him on the specified date
and time. The detailed procedure has been
prescribed for holding such enquiry in
Rule 6 of the Rules.

11. In the case in hand, the
impugned order has been passed by the
District Magistrate under the proviso to
Section 95 (1)(g) of the Act after receipt
of the report in the preliminary enquiry
made under Rule 4. It is apparent from the
perusal of the order of the District
Magistrate dated 30.3.2008 impugned in
the writ petition (Annexure-8 to the writ
petition)
that
upon
receipt
of
the
complaint against the petitioner-appellant,
the District Social Welfare Officer, Kushi
Nagar was nominated to hold preliminary
enquiry vide order dated 3rd October,
2007. The District Social Welfare Officer,
Kushi Nagar submitted report on 22nd
December, 2007. In the report various
irregularities
alleged
against
the
petitioner-appellant were prima facie
found to be correct, hence notice was
served on her on 14.1.2008 and 14.2.2008
under Section 95(1)(g) of the Act calling
upon to show cause pursuant to which
show cause was filed on 26.2.2008. The
District Magistrate since did not find any
substance in the cause shown and having
satisfied with the report in the preliminary
enquiry wherefrom the appellant is prima
facie found to have committed financial
and
other
irregularities,
passed
the
impugned order whereunder she has been
prevented to exercise financial and
administrative powers and functions till
she is exonerated of the charges in the
regular enquiry and also constituted
Committee consisting of three Members
of Gram Panchayat to exercise and
perform the financial and administrative
powers of the Panchayat.

12. The contention that copy of the
enquiry report was not provided and,
therefore, the impugned order is bad, can
also not be, accepted since it has not been
demonstrated before us or in the writ
petition as to what prejudice has been
caused on account of non-supply of the
report. Further, admittedly after receipt of
the show cause notice, the petitioner had
filed show cause and nothing has been
brought before us that she asked for copy
of the report before furnishing show
cause, hence it does not lie in the mouth
of the appellant at this stage to contend
that in the absence of the copy of report
provided to the appellant the order passed
under the proviso to Section 95 (1) (g) of
the Act is vitiated.

13. That apart, having regard to the
provisions of U.P. Panchayat Raj Act and
the Rules framed thereunder referred to
above, we are of the view that the order
withdrawing financial and administrative
power and function of the Pradhan or UpPradhan under the proviso to Section 95
(1) (g) of the Act is in the nature of
interim order pending enquiry to prevent
misuse of financial and administrative
power and function by the Pradhan facing
charges of financial and administrative
irregularities and thus, at this stage the
Act or the Rule does not contemplate to
provide any opportunity of hearing or
show cause or participation of Pradhan or
Up Pradhan facing charges in the
preliminary enquiry. The Hon'ble Single
Judge of this Court in the case of Smt.
Radhili
Devi
Vs.
the
District
Magistrate, Padrauna & others, 1997
(1) AWC 251, took the view that no
opportunity of hearing is necessary before
resorting to such interim measure as it is
analogous to a suspension order passed
against a Government servant and only at
632 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the stage of regular enquiry before
passing
final
order
of
removal,
opportunity of hearing is to be extended.
Similar view was expressed by a Division
Bench of this Court in the case of Moti
Lal Vs. District Magistrate, Lalitpur &
@ others, 2003 (1) UPLBEC 736,
wherein their Lordships having taken note
of the provisions contained in Rules 3 & 4
and proviso to Section 95 (1)(g) of the
Act, held that while holding preliminary
enquiry the Enquiry Officer is not obliged
to give opportunity to the appellant nor
the rule requires holding of preliminary
enquiry in the presence of the appellant.
We, with respect endorse the above view.
Therefore, we do not find any substance
in the contention that the impugned order
has been passed in violation of the
principles of natural justice nor we find
any violation of prescription of law
calling for interference in the impugned
order.

14. Therefore, there is no fault in the
judgment of the Hon'ble Single Judge
assailed in this appeal.

15. No other point is urged before
us.

16. However, looking to the facts of
the case, we are of the view that the
formal enquiry initiated under Rule 5 of
the Rules requires early disposal. We,
therefore, direct that the formal enquiry
initiated against the petitioner shall be
concluded
expeditiously,
preferably
within a period of three months from the
date of production of a certified copy of
this order. We further provide that the
enquiry officer or the District Magistrate
while taking final decision shall not be
influenced or prejudiced in any manner by
the observations made by this Court in the
writ petition and in this appeal as it was
only for the purpose of deciding the
validity of the order passed under proviso
to Section 95 (1) (g) of the Act.

17. With the above observations the
special appeal stands dismissed but
without costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.06.2008

BEFORE
THE HON'BLE R.K. RASTOGI. J.

Criminal Misc. Application 14872 of 2008

Mohan Lal and others
...Applicants
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicant:
Sri. S.R. Singh

Counsel for the Respondent:
A.G.A.

Code of Criminal Procedure-Section 319summoning order-merely on the basis of
examination-in-chief-without
cross
examination-held-illegal.

Held: Para 4

Learned counsel for the applicants cited
before me a ruling of Hon. Supreme
Court in Mohd. Shafi vs. Mohd. Rafiq,
2007 (58) ACC 254. In this case the trial
court on the basis of examination-inchief of witness had summoned the
accused appellant under Section 319
Cr.P.C. The order was challenged and the
Hon. Supreme Court held that the order
summoning the accused applicant could
not
be
passed
on
the
basis
of
examination-in-chief of the witness, but
the court concerned for ascertaining the
veracity of the witness should have
permitted his cross examination first and