NATHI DEVI Vs. STATE OF RAJASTHAN AND ORS.

JUDGEMENT

(1.) By this criminal writ petition, a challenge is made to the FIR No. 58/2015 lodged with Police Station - Ramgarh Pachwara, Dausa for offence under sections 420, 467, 468, 471 and 120B IPC.

(2.) Learned counsel submits that the FIR has been lodged in respect of an election of panchayat, that too, regarding qualification of the petitioner. It is a dispute of pre-election dis-qualification. The nomination form was filled and examined by the Returning Officer. He did not find any objectionable material about the qualification of the petitioner. The petitioner accordingly contested the election and remained successful. The contesting candidate then challenged the election by an election petition. As per rule 80 of the Rajasthan Panchayati Raj (Election) Rules, 1994, an election petition has to be presented within thirty days. The FIR in question was lodged after filing of the election petition. It is nothing but to circumvent the proceedings of the election petition in violation of Article 243-O of the Constitution of India. The Constitution bars challenge to the election save by an election petition. If the investigation in pursuance to the FIR is continued, it will offend Article 243-O of the Constitution.

(3.) The allegation against the petitioner is regarding submission of forged documents relating to educational qualification. The issue aforesaid is pending consideration in the election petition. The FIR is not permissible for an election dispute. Reference of the judgment of this court in the case of "Smt Sameera Bano & etc versus State of Rajasthan & ors, 2007 AIR(Raj) 168" has been given. In the aforesaid judgment, Larger Bench of this court held that pre-election disqualification can be adjudicated only in the election petition and no action can be taken by the State government under rule 23 of the Rajasthan Panchayati Raj Rules, 1996 (for short 'the Rules of 1996') read with section 39 of the Rajasthan Panchayati Raj Act, 1994 (for short "the Act of 1994"). If the FIR is not quashed, it can have ill consequence on an elected person in case of arrest or otherwise. It is by none-else but one of the candidates contested the election along with the petitioner and lost. Thus, impugned FIR deserves to be quashed. The arguments are supported by the judgment in the case of "State of Haryana & ors versus Ch. Bhajan Lal & ors, 1992 Supp1 SCC 335". Petitioner's case falls in criteria No.7 laid down in the judgment of Ch.Bhajan Lal . Reference of the judgment of Hon'be Supreme Court in the case of "VM Shah versus State of Maharashtra & anr, 1995 5 SCC 767" has also been given to show that pending civil litigation, criminal case cannot be allowed.