Smt. Sushila Joshi Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPC No. 920 of 2024

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Smt. Sushila Joshi W/o Shri U. P. Joshi Aged About 47 Years R/o Village Murra, Tahsil Nandghat, District : Bemetara, Chhattisgarh ---- Petitioner

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Versus

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1. State Of Chhattisgarh Through The Secretary, Department Of Panchayat And Rural Development, Atal Nagar, Naya Raipur, District : Raipur, Chhattisgarh

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2. Sub Divisional Officer (Revenue) Nawagarh, District : Bemetara, Chhattisgarh

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---- Respondents

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(Cause-title is taken from Case Information System)

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-----------------------------------------------------------------------------------------------------------------------For Petitioner : Mr. Prateek Sharma, Advocate For Respondents : Mr. Praveen Das, Deputy A. G.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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14.03.2024

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1. By way of this petition, the petitioner has sought the following relief(s):-

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“10.1 That, this Hon’ble Court may kindly be pleased to call for entire records pertaining to the case of petitioner, in the interest of justice.

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10.2 That, this Hon’ble Court may kindly be pleased to set aside the entire proceeding initiated by respondent SDO in the name of enquiry of complaint bearing case no. 168 of 2019-20 (202005230500002 B- 121) along with order dated 31.01.2024 and all further orders and actions (Annexure P/1), passed by respondent SDO in the interest of justice.

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10.3 That, any other relief/order which may deem fit and just in the facts and circumstances of the case including award of costs of the petition may be given. ”

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2. The facts of the present case are that the petitioner was elected as Sarpanch of Gram Panchayat, Murra in the year 2015 and she was removed from the said office in the year 2017 by a motion of no-confidence. She again resumed the charge of Sarpanch, Gram Panchayat, Murra in the month of December, 2017 and completed her term in January, 2020. On 13.05.2020, a complaint was made by the then Member of Legislative Assembly to the SDO(R), Nawagarh i.e. respondent No. 2 to the effect that during his visit, complaints were received

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against Gram Panchayats of Temri, Akoli, Jhal and Murra. The MLA directed the SDO(R), Nawagarh to constitute a team and inquire into the matter. Respondent No. 2 initiated a proceeding against the petitioner on the basis of a complaint dated 13.05.2020 and issued a show-cause notice to the petitioner. The petitioner appeared before the authority on 24.08.2020. On 06.07.2022, a notice under Section 92 of the CG. Panchayat Raj Adhiniyam, 1993 was issued against the petitioner. On 14.07.2022, the case was adjourned as the presiding officer was not available. Later, on 12.08.2022 and 25.08.2022, the case was again adjourned. On 07.09.2022, the petitioner appeared before the authority and filed her reply. On 13.10.2023 and 09.11.2023, the case was again adjourned as the presiding officer was not available. On 13.12.2023, counsel engaged by the petitioner appeared before respondent No. 2. On 10.01.2024, the presiding officer was not available at the headquarters and the case was adjourned for 07.02.2024. Though the case was set for hearing on 07.02.2024, it was preponed by respondent No. 2 and the matter was taken up for hearing on 31.01.2024 and on the same date, an arrest warrant was issued against the petitioner. The petitioner has filed this petition challenging therein the entire proceeding initiated against her by the SDO(R), Nawagarh and the order of issuance of the arrest warrant dated 31.01.2024.

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3. Learned counsel for the petitioner would submit that a perusal of the complaint dated 13.05.2020 made by the then MLA would show that there is no specific allegation against the petitioner. He would further submit that when the complaint was made, the petitioner was not an officer bearer of Gram Panchayat, Murra. He would also submit that the case was set for hearing on 07.02.2024 but respondent No. 2 preponed the date and issued an arrest warrant against the petitioner on 31.01.2024. He would further contend that the action of respondent No. 2 was deliberate and malafide. He would also contend

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that on 10.01.2024, the authority himself was not available at the headquarters and therefore taking such a harsh decision of issuing a non-bailable warrant with regard to certain financial irregularity would be a misuse of power.

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4. On 14.02.2024, this Court while hearing the case granted time to the State counsel to file a reply and the effect and operation of the order dated 31.01.2024 was stayed. Today, the SDO(R), Nawagarh is present before this Court pursuant to the order dated 14.02.2024. Mr. Mukesh Kumar Gond would submit that he recently joined the post of the SDO(R), Nawagarh on 08.02.2024. He would submit that the impugned arrest warrant was issued by his predecessor on 31.01.2024, who has been transferred to somewhere else.

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5. Mr. Praveen Das, learned State counsel would oppose the submissions made by Mr. Sharma. He would submit that an inquiry was going on against the petitioner according to provisions of the CG. Panchayat Raj Adhiniyam, 1993 and when the petitioner did not appear before the authority, an arrest warrant was issued against her. He would further submit that respondent No. 2 has moved an application on 11.03.2024 before the Collector, Dist.-Bemetara for the grant of permission to review its earlier order dated 31.01.2024.

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6. Heard learned counsel for the parties and perused the documents placed on record.

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7. From a perusal of the order sheets of the proceeding pending before the SDO(R), Nawagarh, it is revealed that on the frivolous complaint of the then MLA, a proceeding was initiated by respondent No. 2 against the petitioner, though in any of the order-sheet, there is no mention of any provisions of the law or relevant rules. Vide order sheet dated 06.07.2022, respondent No. 2 issued a show-cause notice under Section 92 of the CG. Panchayat Raj Adhiniyam, 1993. In the complaint dated 13.05.2020, it is stated that various

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complaints have been received against Gram Panchayats of Temri, Akoli, Jhal and Murra during his visit. Though the complaint was made against four Gram Panchayats, the penal action was taken only against the petitioner. From the pleadings, it is apparent that the petitioner was the Sarpanch of Gram Panchayat, Murra from 2015 to January, 2020 and at the relevant time when the complaint was made, the petitioner was not officiating as the Sarpanch of Gram Panchayat, Murra. In the complaint dated 13.05.2020, there is no allegation against the petitioner with regard to the commission of any financial irregularity or anything else and without any basis a proceeding was initiated by respondent No. 2 for the reasons best known to him. The conduct of respondent No. 2 appears to be malafide. There is no clarification on the part of respondent No. 2 as to why the date was preponed from 07.02.2024 to 31.01.2024 and there is no explanation why an arrest warrant was issued against the petitioner. The petitioner was not being tried for any criminal offence and further, the SDO(R), Nawagarh while exercising power under the CG. Panchayat Raj Adhiniyam, 1993 has no authority of law to issue an arrest warrant against any office-bearer or an ex-office bearer.

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8. The Hon’ble Supreme Court in the matter of Satendar Kumar Antil Versus

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Central Bureau of Investigation & Anr . reported in 2022 LiveLaw SC (577) while acknowledging the failings of the country's bail system in recognizing the issue of undertrial and granting bail has issued certain guidelines to criminal courts and other courts to not issue arrest warrants against the accused persons directly. The first resort is to issue a notice and, thereafter, a bailable warrant and if the accused avoids notice and bailable warrant, then in such a situation, the authority can proceed with issuing an arrest warrant against the accused. Relevant paras of the aforementioned judgment are reproduced herein below:-

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“When non-bailable warrants should be issued

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53 Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when:

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it is reasonable to believe that the person will not voluntarily appear in court, or

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the police authorities are unable to find the person to serve him with a summon, or

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it is considered that the person could harm someone if not placed into custody immediately.

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54 As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred The warrants either bailable or nonbailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

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55 In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant, in the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non- bailable warrant should be resorted to Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

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56 The power being discretionary must be exercised judiciously wath extreme care and caution The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper ot destroy the evidence or is likely to evade the process of law, issuance of non- bailable warrants should be avoided.

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57 The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing nonbailable warrant. ”

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But in the present case, without the authority of law, respondent No. 2 exceeded its jurisdiction and issued an arrest warrant. From a perusal of the order sheets and complaint dated 13.05.2020, prima-facie no substance is found against the petitioner and it appears that such proceeding was initiated by the SDO(R), Nawagarh due to political influence, therefore, the proceeding pending against the petitioner including the order dated 31.01.2024 is hereby quashed.

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9. A warning is being issued to the SDO(R), Nawagarh, who passed the order dated 31.01.2024 whereby an arrest warrant was issued against the petitioner. If such a mistake is repeated in the near future, the State Government may take departmental action against the said officer.

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10. Accordingly, the present writ petition is allowed.

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Sd/- (Rakesh Mohan Pandey) Judge

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Ajinkya

Smt. Sushila Joshi v. State of Chhattisgarh

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Smt. Sushila Joshi v. State of Chhattisgarh

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