Amar Singh vs State of Haryana

K.S. Kumaran, J.

The petitioner, who was the Sarpanch of Gram Panchayat, Nuhianwali, District Sirsa, has approached this Court under Section 482 Cr.P.C. for quashing the complaint filed by the Block Development and Panchayat Officer (secondrespondent) to the Sub Divisional Officer (third respondent) for issue of search warrants and also for quashing the search warrants issued by the thirdrespondent.

The case of the petitioner is as follows :

The petitioner was Sarpanch of the Gram Panchayat Nuhianwali from 1987 to 1991 and in the elections held in 1991 the fourthrespondent herein was elected as the Sarpanch. The petitioner and the members of the Gram Panchayat found some goods of the Gram Panchayat in bad condition and beyond the possibility of any repair and, therefore, resolved on 31.10.1991 that they should be sold in auction (annexure P1/T). The auction was fixed on 9.11.1991 with the information to the secondrespondent. But the secondrespondent did not attend the auction. It was felt not desirable to postpone the auction and, therefore, the goods were sold in auction. The present Sarpanch namely, the fourth respondent, prevailed upon the secondrespondent to issue a notice (annexure P2/T) on 27.7.1992, wherein false allegations have been levelled against the petitioner, even stating that some goods were auctioned after the petitioner ceased to be Sarpanch. On 18.8.1992 the secondrespondent served another notice on the petitioner (annexure P3/T) in which only seven items were mentioned. Nothing was mentioned about the items mentioned in the list attached with the previous notice annexure P2. The allegations found in this notice are also false. There is an endorsement on this notice requesting the Sub Divisional Officer (thirdrespondent) to issue search warrants against the petitioner so that with the police help the goods mentioned in the notice could be recovered. It is learnt that thirdrespondent without serving any showcause notice to the petitioner and without enquiry into the matters issued search warrants against the petitioner, which is against law.

The petitioner handed over charge of the Panchayat to the fourthrespondent immediately on his election. There is no description or mark of identification on any of the articles. The articles mentioned in Annexures P2 and P3 are found normally in every person''s house. There is great delay in issuing the annexures P2 and P3.

The secondrespondent namely Block Development & Panchayat Officer filed the following counter on behalf of respondents 1 to 3 :

The elections of the Gram Panchayat in Sirsa District were held in Dec. 1991 and all the Sarpanches were directed by the Competent Authority to hand over charge of the Gram Panchayat to the Secretary, Gram Panchayat, one month prior to the date of election. The petitioner did not do so. The articles mentioned in the list with annexure P2 were not in a bad condition; even otherwise the petitioner should have got them inspected by the Competent Authority and declared them as such. The auction was not in accordance with law as no prior notice was given to the Competent Authority. The Secretary of the Gram Panchayat was not asked to watch the auction proceedings. The petitioner in collusion with the other members has shown fictitious auction. The petitioner has acted beyond his limits and misappropriated the funds/property of Gram Panchayat. No notice of auction was given to the secondrespondent. Petitioner auctioned the goods of Panchayat in order no misappropriate the money of the Panchayat. After having got charge of the Panchayat from the petitioner, the fourthrespondent inspected the records of the Gram Panchayat and found the auction to be illegal and informed the secondrespondent. The secondrespondent served notice dated 27.7.1992 on the petitioner, which is legal. Some articles were given to Patwarkhana by the petitioner during his tenure as Sarpanch, but he picked away the said articles mentioned in annexure P3 before the notice, and sold them in the said auction dated 9.11.1991, consequently there was no furniture in the Patwarkhana. The Patwari wrote a letter dated 15.5.1992 (annexure P2) to the fourthrespondent requesting for furniture. The fourthrespondent informed the matter to the secondrespondent whereupon the secondrespondent sent the letter No. 1332 dated 14.8.1992 (annexure P3) and asked the petitioner to hand over furniture/articles to the Gram Panchayat.

The petitioner was given several opportunities by the secondrespondent by his letters dated 27.7.1192, 14.8.1992 and 27.8.1992, but the petitioner did not reply, nor did he appear before the secondrespondent. The petitioner and the other members of the Panchayat were not competent to pass the Resolution. The petitioner was directed to hand over charge of the Gram Panchayat one month prior to the election but he did not do so. He handed over charge to the fourthrespondent after committing the misdeeds and after the statutory period.

The goods of the Panchayat have their personal identity. The notices/search warrants were well within time. The relevant records were examined before giving notices.

The fourthrespondent also filed a separate counter containing similar allegations.

Though several points have been raised by the petitioner in his petition at the time of arguments, he also raised a legal plea that the secondrespondent namely Block Development and Panchayat Officer cannot make a request to the thirdrespondent namely Sub Divisional Officer for the issuance of the search warrant after the elections are over and similarly thirdrespondent had no power to issue the search warrant after the end of the elections process. He also contended that the thirdrespondent while issuing the search warrant should have recorded the reasons for issuing the same and inasmuch as he had not done so, the search warrant issued against the petitioner is liable to be quashed on that ground also.

We have to see whether these two contentions can be accepted and whether the complaint in which the secondrespondent has made the request for issuing the search warrant and the search warrant issued by the thirdrespondent against petitioner have to be quashed. There is no dispute about the fact that petitioner herein is only former Sarpanch of the Gram Panchayat and that election to the Panchayat was held in December 1991, in which the fourth respondent has been elected as the Sarpanch. It is also admitted by respondents 1 to 3 in paragraph 6 of their counter that after his election as the Sarpanch the fourthrespondent had even taken charge from the petitioner. It is in this background that we have now to analyse the legal objections taken by the petitioner.

The learned counsel appearing for the petitioner referred to Section 18A of the Punjab Gram Panchayat Act, 1952 (Act IV of 1953) which is to the following effect :

18A(1) All prescribed records and registers and other property belonging to or vested in the Panchayat shall remain in the custody of the Sarpanch and, in his absence, the Panch elected by the Panchayat for the purpose and, on the vacation of his office, the outgoing Sarpanch or Panch as the case may be, shall hand them over to the Sarpanch or to such other Panch as may be authorised in this behalf by the Deputy Commissioner.

(1A) Notwithstanding anything contained in subsection (1) the Block Development and Panchayat Officer may within a period of seven days prior to the publication of election programme of the Panchayat, require, by a general or special order, a Sarpanch or Panch, as the case may be, to hand over the records, registers and other property referred to in the said sub section to the Social Education and Panchayat Officer or Gram Sachiv, who shall hold them in custody on behalf of the Panchayat and shall hand over the same to the newly elected Sarpanch or Panch, as the case may be in the first meeting.

(2) If on a requisition made in this behalf by the Block Development and Panchayat Officer, any person, within a period of ten days of such requisition fails under subsection (1) or subsection (1A) to hand over the prescribed records and registers and other property belonging to or vested in the Panchayat to the Sarpanch or Panch referred to in subsection (1) or to the Social Education and Panchayat Officer or Gram Sachiv referred to in sub section (1A), the Block Development and Panchayat Officer shall apply to an Executive Magistrate within whose jurisdiction the Sabha area is situated for securing from such person, such records, registers and other property.

(3) On receiving an application under subsection (2), the Magistrate may by a warrant authorise any Police Officer not below the rank of a SubInspector to enter and search any place where such records and registers and other property are kept or believed to be kept and to seize them and the records, registers and other property so seized shall be handed over to the Sarpanch or the Panch authorised by the Deputy Commissioner referred to in subsection (1) or the Social Education and Panchayat Officer or Gram Sachiv referred to subsection (1A), as the case may be.

A mere reading of these provisions clearly reveals that the Block Development and Panchayat Officer can within a period of seven days prior to the publication of the election programme of the Panchayat require the Sarpanch to hand over the records and other property. If the Sarpanch does not hand over the records and the property of the Panchayat within ten days of such requisition then the Block Development and Panchayat Officer shall apply to the Executive Magistrate for securing the records and the property. It is on such an application that the Executive Magistrate can issue a warrant for search. But in the present case, admittedly the election was over in December, 1991, and the Block Development & Panchayat Officer had issued the notice Annexure A2 on 27.7.1992 alleging that the petitioner had auctioned certain articles belonging to the Panchayat and asking him to explain his position. It is also admitted that it was only on 15.5.1992 that the Patwari had written to the new Sarpanch that on 6.1.1992, the ExSarpanch, namely the petitioner, had lifted some furniture from the Patwarkhana. It is only on 14.8.1992 under Annexure R3 that the Block Development & Panchayat Officer had required the petitioner herein to return the articles. On 27.8.1992, the Block Development & Panchayat Officer had written to the Sub Divisional Officer (annexure R4) requesting him to issue search warrant against the petitioner. The search warrant was issued by the SubDivisional Officer, namely the 3rd respondent herein, only on 3.9.1992. All this has happened long subsequent to the election of the 4th respondent as Sarpanch in December, 1991. As rightly contended by the learned counsel for the petitioner, neither the Block Development & Panchayat Officer (2nd respondent) could have in law requested the 3rd respondent to issue a search warrant, nor could the 3rd respondent have issued such a warrant against the petitioner after the election was over, (sic). The secondrespondent should have required the petitioner to hand over the records and property of the Panchayat within a week prior to the publication of the election programme of the Panchayat. If he had done so and if the Sarpanch had not handed over the possession of the record and the property within ten days of such requisition, then only the Block Development and Panchayat Officer will be entitled to move the Sub Divisional Officer for securing such records and properties. It is only on such an application that the thirdrespondent namely, the Sub Divisional Officer, is entitled to issue a search warrant. If the Sarpanch was not required to hand over the articles within a week prior to the publication of the election programme, then neither the Block Development and Panchayat Officer would be entitled to seek for the issuance of such a warrant in case the Sarpanch fails to deliver possession of the records and properties within ten days of such a requisition, nor would the Sub Divisional Officer be entitled to issue such a warrant. Therefore, the request made by the secondrespondent herein to the thirdrespondent for the issuance of the search warrant against the petitioner, and the issuance of the search warrant by the thirdrespondent the Sub Divisional Officer, are wholly unsustainable in law and, therefore, have to be quashed.

In view of this position, it is not necessary for me to go into the other questions.

In the result, the petition is allowed as prayed for, and the complaint by the secondrespondent to the thirdrespondent, and the search warrant issued by the 3rd respondent against the petitioner are quashed.