A.F.R.
Court No. 21
Reserved on 26st May, 2010
Delivered on 03rd July, 2010
Civil Misc. Writ Petition No. 12150 of 2010
Rajendra Yadav
Versus
State of U.P. and others
Hon'ble V.K.Shukla,J
Present writ petition in question has been filed for quashing of the
order dated 01.02.2010 (Annexure-5) passed by District Magistrate, Ballia
proceeding to pass order of removal of the petitioner from the post of
Pradhan of Gram Panchayat Gangapur Block Bariya District Ballia.
Brief background of the case is that General Election of Gram
Panchayat was held. Petitioner has also filed his nomination paper for the
post of Pradhan of Gram Sabha, Gangapur, Block Bariya, District Ballia and
in the said election so held petitioner was declared elected. While petitioner
continued to perform and discharge duties as Pradhan in Criminal Trial S.T.
No. 334 of 1997 (State of U.P. Vs. Harendra Yadav and others) arising out
of Case Crime No. 118 of 1995 under Sections 302/34 IPC, order of
conviction has been passed by Special/Additional Session & District Judge,
Ballia on 25.08.2009 and pursuant thereto petitioner was taken into custody
and thereafter petitioner preferred Criminal Appeal No. 5312 of 2009
(Harendra Yadav and other Vs. State of U.P.) before this Court and this
Court on 28.10.2009 passed order for releasing the petitioner on bail.
District Magistrate thereafter on 11.11.2009 issued show cause notice to
petitioner mentioning therein that petitioner has been convicted in criminal
case wherein sentence of life imprisonment alongwith fine has been
imposed and charges leveled therein involved moral turpitude, as such
petitioner may submit his reply within fifteen days, as to why he should not
be removed Pursuant thereto petitioner submitted his reply on 30.11.2009
and also requested that in public interest petitioner be permitted to resume
his job of Pradhan. District Magistrate has considered the reply so filed by
the petitioner and found that petitioner was an accused in a murder case
2
involving moral turpitude in such a situation his continuance as Pradhan was
totally improper and removal was essential, and in this background order of
removal has been passed.
Supplementary affidavit has also been filed in reference of reference
of question of disqualification of the petitioner under Section 6A to
Prescribed Authority on 12.03.2010.
Time was accorded for filing counter affidavit but no counter affidavit
has been filed till date and thereafter with the consent of the parties on
20.05.2010 date was fixed for 26.05.2010 for hearing then on 26.05.2010
with the consent of the parties matter has been finally heard for final
decision.
Sri Dan Bahadur Yadav, Advocate appearing with Sri R.K.Yadav,
Advocate, contended with vehemence that in the present case District
Magistrate, Ballia has erred in law in not referring matter on the question of
disqualification of petitioner to the Prescribed Authority under Section 6A of
the Act and illegally assumed the power of Prescribed Authority and decided
the question of disqualification of the petitioner under Section 5A of U.P.
Panchayat Raj Act, 1947, as such order passed is totally without jurisdiction,
and further the offence wherein petitioner has been convicted, in no manner
has the element of involvement of moral turpitude in such a situation writ
petition deserves to be allowed.
Countering the said submission learned Standing counsel on the other
hand contended that here District Magistrate has exercised delegated
authority of the State Government under Section 95(1)(g) of U.P. Panchayat
Raj Act, 1947 and once authority of external control has been exercised and
petitioner suffers from disqualification then in such a situation order
impugned does not warrant any interference by this Court.
After respective arguments have been advanced position which is
emerging, that Part-IX of the Constitution of India deals with Panchayat and
same has been inserted by the Constitution 73rd Amendment Act, 1992 with
effect from 24.04.1993. Under the scheme of the aforesaid Constitutional
provision Panchayat has been defined under Article 243 (d), to be an
institution of self government constituted under Article 243-B for the rural
areas. Article 243-B deals with constitution of Panchayats and Article 243-C
3
deals with Composition of Panchayats. Article 243 -E deals with duration of
Panchayats etc. Article 243-F deals with disqualifications for membership.
Relevant Article 243-F is being quoted below:
"243-F. Disqualifications for membership - (1) A person shall
be disqualified for being chosen as, and for being, a member of a
Panchayat -
a) if he is so disqualified by or under any law for he time being in force
for the purposes of elections to the Legislature of the State concerned :
Provided that no person shall be disqualified on the ground that
he is less than twenty-five years of age, if he has attained the age of
twenty-one years;
b) if he is so disqualified by or under any law made by the Legislature of
the State.
(2)if any question arises as to whether a member of a Panchayat has
become subject to any of the disqualification mentioned in clause (1), the
question shall be referred for the decision of such authority and in such
manner as the Legislature of a State may, by law, provide."
Bare perusal of the provision quoted above would go to show that
under sub-section (2) of Article 243-F, if question arises as to whether a
member of Panchayat has become subject to any of the disqualifications
mentioned in clause (1) the question shall be referred for the decision of
such authority and in such manner as the Legislature of a State may by law,
provide.
Under U.P. Panchayat Raj Act, 1947, Chapter II deals with
establishment and constitution of Gram Sabhas and Gram Panchayat and
Chapter II-A deals with disqualifications of members of Gram Panchayat and
electoral Roll etc. Section 5-A has been inserted by U.P. Act No. IX of 1994
and therein disqualification for membership has been provided for by
mentioning that a person shall be disqualified for being chosen as and for
being Pradhan or member of Gram Panchayat. Section 6-A deals with
decision on the question as to disqualification. Under Chapter VII, Section
95(1)(g) deals with external control of the State Government. Relevant
provisions are being extracted below;
Section 5A . Disqualification for membership.- A person shall be
disqualified for being chosen as, and for being the Pradhan or a member
of a Gram Panchayat, if he-
4
(a) is so disqualified by or under any law for the time being in force for
the purposes of elections to the State Legislature.
Provided that no person shall be disqualified on the ground that he
is less than twenty-five years of age, if he has attained the age of twenty-
one years;
(b) is a salaried servant of the Gram Panchayat or a Nyaya
Panchayat;
(C) holds any office of profit under a State Government or the
Central Government or a local authority, other than a Gram Panchayt or
Nyaya Panchayat; or a Board, Body or Cooperation owned or controlled by
a State Government or the Central Government;
(d) has been dismissed from the service of State Government the
Central Government or a local authority or a Nyaya Panchayt for
misconduct;
(e) is a in arrears of any tax, fee, rate or any other dues payable
by him to the Gram Panchayt, Kshetra Panchayat or Zila Panchayat for
such period as may be prescribed, or has, in spite of being required to do
so by the Gram Panchayt, Nyaya Panchayt, Kshetra Panchayat or Zila
Panchayat failed to deliver to it m\any record or property belonging to it
which had come into his possession by virtue of his holding any office
under it;
(f) is an un discharged insolvent;
(g) has been convicted of an offence involving moral turpitude;
(h) has been sentenced to imprisonment for a term exceeding
three months for contravention of any order made under the Essential
Commodities Act, 1955;
(i) has been sentenced to imprisonment for a term exceeding six months
or to transportation for contravention of any order made under the
Essential Supplied (Temporary Powers) Act, 1946 or the U.P. Control of
Supplies (Temporary Powers) Act, 1947
(j) has been sentenced to imprisonment for a term exceeding
three months under the U.P. Excise Act, 1910.
(k) has been convicted of an offence under the Narcotic Drugs and
Psychotropic Substances Act, 1985.
(l) has been convicted of an election offence;
(m) has been convicted of an offence under the U.P. Removal of
Social Disabilities Act, 1947 or the Protection of Civil Rights Act, 1955; or
(n) has been removed from office under sub-clause (iii) or (iv) of
clause (g) of sub-section (1) of Section 95 unless such period, as has
been provided in that behalf in the said section or such lesser period as
5
the State Government may have ordered in any particular case, has
elapsed;
Provided that the period of disqualification under clauses (d), (f),
(g), (h), (i), (j), (k), (l) or (m) shall be five years from such date3 as may
be prescribed.
Provided further that the disqualification under clause (e) shall
cease upon payment of arrears or delivery of the record or property, as
the case may be;
Provided also that a qualification under any of the clauses referred
to in the first proviso may, in the manner prescribed, be removed by the
State Government.
6-A. Decision on question as to disqualifications.-If any question
arises as to whether a person has become subject to any disqualification
mentioned in Section 5-A or in sub-section (1) of Section 6, the question
shall be referred to the prescribed authority for his decision and his
decision shall, subject to the result of any appeal as may be prescribed,
be final."
"Section 95(1)(g) :- Remove a Pradhan, Up-Pradhan or member of a Gram
Panchayat or a Joint Committee of Bhumi Prabandhak Samiti(***) or a
Panch, Sahayak 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 charged 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 hereunder or his
continuance as such is not desirable in public interest, or
(iii-a) 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 Up-Pradhan is prima facie found
to have committed financial and other irregularities such Pradhan or Up-
Pradhan shall cease to exercise and perform the financial and administrative
6
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 Panchayhat appointed by the State Government.
Provided that-
(I) no action shall be taken under clause (f), clause (g) except after
giving to the body or person concerned a reasonable opportunity of showing
cause against the action proposed."
ii- 1[* * *]
In order to make provisions of Section 5A workable provisions of U.P.
Panchayat Raj (Computation of Period of Five years for Removal of
Disqualification, Fixation of Period of Dues etc. and Settlement of Disputes
of Disqualification) Rules 1994 have been inserted by notification dated
10.09.1994 in exercise of powers vested under Section 110 read with
Section 5-A and Section 6-A of the United Provinces Panchayat Raj Act,
1947 the Governor Rules are being extracted below:
1. Short title- These rules may be called the Uttar Pradesh
Panchayat Raj (Computation of Period of five years for Removal of
Disqualification, Fixation of Period of Dues etc. and Settlement of
Disputes of Disqualification) Rules 1994.
2. Definitions- In these rules, unless there is anything repugnant
in the subject or context-
3. Computation of period of five years- The date from which
the period of five years for removal of disqualification under clauses
(d),(f),(g),(h), (i), (j)(k),(l) or (m) of Section 5-A of the Act shall be
computed will be as follows :--
(a) For clause (d), from the date of dismissal;
(b) For clause (f), from the date on which the insolvent is
discharged;
(c) For clauses (g), (h), (i),(j),(k), (l) or (m);
(i) In case of sentence of imprisonment, from the date of expiry
of the period of sentence
(ii) In case of sentence of fine, from the date of payment or
recovery thereof;
(iii) In the case of sentence of both imprisonment and fine,
from the date of expiry of sentence, or payment or recovery of fine,
which ever is later.
4. Removal of disqualification under Section 5-A-(1)-An
application for removal of the disqualification under clauses (d), (f), (g),
(i), (j), (k), (l), or (m), of Section 5-A of the Act shall be in the form
7
given in the Appendix and shall show the grounds upon which the
applicant claims removal of the disqualification.
(2) The application shall be presented to Sub-Divisional Officer of Sub-
Division concerned.
(3) The Sub-Divisional Officer may, after such enquiry as he deems fit,
either accept the application and remove the disqualification or reject
the application.
(4) A copy of the order passed under sub-rule (3), removing the
disqualification shall be sent to the secretary of the concerned Gram
Panchayat and to the Assistant Development Officer (Panchayat) and to
the concerned Kshettra Panchayat.
5. Reference under Section 6-A pertaining to disqualification:-(1)
Where any question as is referred to in Section 6-A of the Act is raised
otherwise than in a claim or objection, it shall be referred to the
Tehsildar by the officer or authority before whom such question arises
for consideration.
(2) On the receipt of a reference under sub-rule (1) the Tehsildar
shall fix the date, time and place for it's hearing and shall give notice to
the parties concerned.
(3) The Tehsildar shall after hearing the parties and after such other
enquiries as he deems fit, give his decision on the question referred to
him.
(4) Any person aggrieved by the order of the Tehsildar may, within
fifteen days of the date of such order, prefer an appeal to the Sub-
Divisional Officer.
(5) The Sub-Divisional Officer, shall after notice to the parties and
after haring such of them as desire to be heard, dispose of the appeal.
(6) A copy of the final order passed on the question referred to the
Tehsildar as modified in appeal, if any, shall be forwarded to the
Secretary of the Gram Panchayat and to the Assistant Development
Officer (Panchayat) of the concerned Kshettra Panchayat."
Provisions quoted above would go to show that Section 5-A deals with
disqualification of membership under clauses (a) to (n). On plain reading of
the section, it seems clear from the language in which said provision has
been couched that same is intended to be mandatory in character. The use
of word "shall" brings out imperative character, that person shall be
disqualified for being chosen and for being Pradhan or member of Gram
Panchayat, if he/she suffers from any of the disqualification mentioned
therein, clause (a) to (n). It covers disqualification, both at pre election
8
stage as well as of post election stage. A person cannot be disqualified
unless he suffers disqualification laid down in Section 5A of U.P. Panchayat
Raj Act, 1947. To this substantive provision of disqualification, three proviso
have been added. The first proviso provides that the period of
disqualification under clauses (d), (f), (g), (h), (i), (j), (k), (l) or (m) shall be
five years from such date as may be prescribed and second proviso covers
clause (e) and mentions that the disqualification under clause (e) shall cease
upon payment of arrears or delivery of the record or property, as the case
may be; and the third proviso gives right to the State Government in respect
of disqualification under any of the clauses referred to in the first proviso
may, in the manner prescribed, be removed by the State Government.
Section 6-A confers authority to give decision, if any question arises as to
whether a person has become subject to any disqualification mentioned in
Section 5-A or in sub-section (1) of Section 6, the question shall be referred
to the prescribed authority for his decision and his decision shall, subject to
the result of any appeal as may be prescribed be final. Section 95(1)(g) of
U.P. Panchayat Raj Act, 1947 falling under Chapter VII deals with authority
of external control of the State Government and confers authority on the
State Government to pass order of removal even in cases where Pradhan
suffers from any of the disqualification mentioned in clauses (a) to (m) of
Section 5-A of the Act.
Under U.P. Panchayat Raj (Computation of Period of Five years for
Removal of Disqualification, Fixation of Period of Dues etc. and Settlement
of Disputes of Disqualification) Rules 1994, Rule 3 deals with computation of
period of five years and Rule 4 deals with that an application for removal of
the disqualification under Clauses (d), (f), (g), (h), (i), (j), (k), (l) or (m) of
Section 5-A of the Act, shall be in the form given in the Appendix and shall
show the grounds upon which the applicant claims removal of the
disqualification. Sub-Rule (2) of Rule 4 of 1994 Rules deals with and
provides that application shall be presented to Sub-Divisional Officer of the
Sub-Division concerned. Rule 5 of 1994 Rules deals with situation wherein
question under Section 6-A pertaining to disqualification is raised otherwise
than in a claim or objection, it shall be referred to the Tehsildar by the
officer or authority before whom such question arises for consideration.
9
Sub-Rule (2) of Rule 5 of Rules 1994 deals with that Tehsildar shall fix the
date, time and place for its hearing and shall give notice to the parties
concerned. Sub-Rule (4) of 1994 Rules deals with any person aggrieved by
the order of the Tehsildar may, within fifteen days of the date of such order,
prefer an appeal to the Sub-Divisional Officer. Sub-Rule (5) of Rule 5 of
1994 Rules deals with that Sub-Divisional Officer, shall after notice to the
parties and after haring such of them as desire to be heard, dispose of the
appeal and thereafter Sub-Rule (6) of Rule 5 deals with a copy of the final
order passed on the question referred to the Tehsildar as modified in
appeal, if any, shall be forwarded to the Secretary of the Gram Panchayat
and to the Assistant Development Officer (Panchayat) of the concerned
Kshettra Panchayat.
On the parameter as provided for in the present case as far as
authority of District Magistrate to pass order of removal is concerned same
is not at all doubted but the larger question raised here in the present case
is as to whether the procedure which has been adopted by District
Magistrate is the procedure prescribed/ subscribed by statute or not. Article
243-F of the Constitution of India clearly provides that if any question
arises as to whether a member of a Panchayat has become subject to any
of the disqualification mentioned in clause (1), the question shall be referred
for the decision of such authority and in such manner as the Legislature of a
State may, by law provide. In consonance with the Constitutional mandate
under U.P. Panchayat Raj Act with akin language if any question arises as to
whether a person has become subject to any disqualification mentioned in
Section 5A or sub-section (1) of Section 6 of the Act. Said question of
disqualification has to be answered by the Prescribed Authority under
Section 6-A and its decision is subject to the decision of appeal as provided
for. Under U.P. Panchayat Raj (Computation of Period of Five years for
Removal of Disqualification, Fixation of Period of Dues etc. and Settlement
of Disputes of Disqualification) Rules 1994 framed in exercise of power
vested under Section 110 read with Section 5-A and Section 6-A of the
United Provinces Panchayat Raj Act, 1947. Rule 5 deals with references
pertaining to disqualification, where any question as is referred to in Section
6A of the Act is raised otherwise than in claim or objection, the same has to
10
be referred to the Tehsildar. Reference has to be made in three
contingency, (i) where any question as referred to in Section 6A is raised by
way of claim (ii) where any question as referred to in Section 6A is raised by
way of objection (iii) where any question as referred to in Section 6A of the
Act is raised otherwise than the claim or objection.
Suffers from disqualification mentioned in Clause (a) to (m) of Section
5-A in itself confers authority on the State Government to take remedy of
removal, as law in its wisdom considers it unwise to continue the incumbent
who suffers from disqualification. Sufferance precedes disqualification as an
incumbent cannot be disqualified unless he suffers disqualification
prescribed under Section 5A. Said sufferance, on being questioned either by
claim or objection or otherwise is to be decided as per the parameters of
Section 6A read with 1994 Rules. Section 6-A talks of decision on question
as to disqualification. Period of disqualification under clauses (d), (f), (g),
(h), (i), (j), (k), (l) or (m) under Section 5A is five years from such date as
may be prescribed. Under 1994 Rules, Rule 3 deals with computation of
period of five years and for clauses (g), (h), (i), (j), (k), (l), (m), said five
years period has been made applicable (i) in case of sentence of
imprisonment, from the date of expiry of period of sentence (ii) in case of
sentence fine, from the date of payment or recovery thereof (iii) in the case
of sentence of both imprisonment and fine, from the date of expiry of
sentence or payment of recovery of fine, whichever is later.
Period of disqualification, ipso facto starts the moment order of
imprisonment is passed for offences involving moral turpitude, and other
offences as provided under clause (g) to (m) of Section 5A of the Act and
the date from which the period of five years for removal of disqualification
has to be computed has also been provided. In the case of sentences also,
where order of conviction has been passed followed by sentence, after five
years from the date of expiry of sentence an application can be moved for
removal of disqualification and not before that. It is only when any question
arises, as to whether a person has become subject to any disqualification
mentioned in Section 5-A or sub-section (1) of Section (6), the question has
to be referred to the Prescribed Authority. Said question can be raised either
by way of claim or objection or otherwise. Raising of question is condition
11
precedent for making of reference.
Petitioner at no point of time raised any question by way of claim or
objection and neither at any point of time any question has been raised
before the authorities concerned otherwise also that petitioner is not at all
subject to any disqualification, in the absence of said question being raised
by way of claim or objection or otherwise, the District Magistrate was not at
all all obliged to refer the matter as is provided for under Section 6A read
with 1994 Rules. Show cause notice dated 11.11.2009 was clear and
categorical that petitioner has been convicted in murder case, same falls
within the scope and ambit of offence involving moral turpitude. Reply dated
30.11.2009, no where raises the question that petitioner is not disqualified,
rather proceeds to mention that Criminal Appeal has been filed, and he has
been directed to be released on bail on 04.11.2009, and in public interest,
he should be permitted to function. Once this question has never been
raised and it was accepted that disqualification was there, in such a
situation reference under Section 6-A read with 1994 Rules was not at all
required in the facts of case.
At last it has been sought to be contended that Criminal Appeal is
pending and offence of murder does not involve moral turpitude as
petitioner role is that of exhortation.
Hon'ble Apex Court n the case of B.R. Kapur V.State of T.N. and
another reported in 2001(7) SCC 231 has proceeded to consider the
impact of conviction and further proceed to mention that disqualification
which is attached to conviction and sentence applies to the same as well.
Relevant para 34 and 40 are being extracted below:-
"34. It is true that the order of the High Court at Madras on the
application of the second respondent states: "Pending criminal
appeals the sentence of imprisonment alone is suspended and the
petitioners shall be released on bail …..”, but this has to be read
in the context of Section 389 under which the power was
exercised. Under Section 389 an appellate court may order that
“the execution of the sentence or order appealed against be
suspended ….:. It is not within the power of the appellate court to
suspend the sentence; it can only suspend the execution of the
sentence pending the disposal of appeal. The suspension of the
execution of the sentence does not alter or affect the fact that the
offender has been convicted of a grave offence and has attracted
the sentence of imprisonment of not less than two years. The
12
suspension of the execution of the sentences, therefore, does not
remove the disqualification against the second respondent. The
suspension of the sentence, as the Madras High Court erroneously
called it, was in fact only the suspension of the execution of the
sentences pending the disposal of the appeals filed by the second
respondent. The fact that she secured the suspension of the
execution of the sentences against her did not alter or affect the
convictions and the sentences imposed on her and she remained
disqualified from seeking legislative office under Section 8(3).
40. In much the same vein, it was submitted that the
presumption of innocence continued until the final judgment
affirming the conviction and sentence was passed and, therefore,
no disqualification operated as of now against the second
respondent. Before we advert to the four judgments relied upon in
support of this submission, let us clear the air. When a lower court
convicts an accused and sentences him, the presumption that the
accused is innocent comes to an end. The conviction operates that
the accused has to undergo the sentence. The execution of the
sentence can be stayed by an appellate court and the accused
released on bail. In many cases, the accused is released on bail so
that the appeal is not rendered infructuous, at least in part,
because the accused has already undergone imprisonment. If the
appeal of the accused succeeds the conviction is wiped out as
cleanly as if it had never existed and the sentence is set aside. A
successful appeal means that the stigma of the offence is
altogether erased. But that is not to say that the presumption of
innocence continues after the conviction by the trial court. That
conviction and the sentence it carries operate against the accused
in all their rigour until set aside in appeal, and a disqualification
that attaches to the conviction and sentence applies as well.”
Inevitable conclusion is that as far as order of conviction is concerned
merely because order of bail has been passed, same will not alter or effect
the conviction and disqualification attached to the said conviction has to be
given effect to, unless and until specific order is passed by Appellate Forum
under Section 389 (1) Cr.P.C, staying conviction and sentence to save the
petitioner from the clutches of disqualification see Ravi Kant S. Patil Vs.
Sarvphouma. S. Bagli 2007 (1) SCC 673.
Under Section 5A, person is disqualified from being chosen and for
being member of Gram Panchayat if he has been convicted of an offence
involving moral turpitude. Once conviction is attended with offence
involving moral turpitude, then disqualification is attached to the same and
incumbent is not entitled to hold the office. Question to be answered is as
to whether in the Sessions trial wherein petitioner has been convicted, the
offence is of such nature that it involves moral turpitude ?.
The word” moral turpitude” has not been defined under the Indian
13
Penal Code or anywhere else. In Black’s Law Dictionary the meaning of
‘Moral’ has been given as under: Moral.- Pertains to character, conduct
Intention, social relation.(1) Pertaining or relating to the conscience or
moral sense or to the general principles of right conduct. (2) Cognizable or
enforceable only by the conscience or by the principles of right conduct, as
distinguished from positive law. (3) Depending upon or resulting from
probability raising a belief or conviction in the mind independent of strict or
logical proof. (4) Involving or affecting the moral sense; as in the Phrase’
Moral Insanity”.”
The meaning of “moral turpitude” has been given as under:”Moral
turpitude”- An act of baseness, vileness, or depravity in the private and
social duties which a man owes to his fellow men, or to society in general,
contrary to the accepted and customary rule of right and duty between man
and man. Conduct contrary to justice, honesty, modesty, or good
morals.”:
Different persons may have different views in regard to baseness
vileness or depravity in conduct of a man. One may take a narrow view and
the other may take a liberal view. The broad principle may be when the
conduct of a man shocks the conscience of people in regard to action or
conduct of a man. If the law prohibits to do an act and it is violated, such
violation may be with a deliberate intention or it may be under certain
circumstances which may not amount to “moral turpitude”. It depends upon
the facts of each case. It has been subject to discussion in various decision.
In Harsuck Rana Vs. Sarnam Singh, 1964 ALJ 1118, the
question as to whether a conviction under Section 302/149 of Indian Penal
Code could be deemed a conviction for an offence involving moral turpitude
was considered in detail. The Court laid down the following legal
proposition: “Turpitude’ is a word of high emotional significance,
suggesting conduct of such depravity as to excite feelings of disgust and
contempt. The crime of simple hurt does not normally provoke any such
reaction and consequently, cannot be classed as an offence involving
moral turpitude; and it seems to me that there is no logical reason why the
offence of murder, which in a sense is only an aggravated form of hurt,
should be held necessarily to involve moral turpitude. I am willing to
14
concede that murders which are premeditated and planned in cold blood,
those which are perpetrated for some base motive and those which are
carried out with extreme ferocity and cruelty do involve moral turpitude, as
they naturally invoke spontaneous feeling of repulsion and condemnation in
the mind. But a murder committed in the heat of a fight or in response to
serious provocation could hardly be placed in the same category.
The question is as to whether if a person takes life of another
person by killing him, can it be taken as offence involving moral turpitude.
The matter was considered by the Apex Court in Pavan Kumar Vs. State
of Haryana and others, JT 1996(5) Sc 155, and it was held that moral
turpitude is an expression which is used in legal as also societal parlance
and describes the conduct which is inherently base, vile deprave or having
any connection showing depravity. Killing a person per see may not come
within the periphery of “moral turpitude” but subjecting a woman to cruelty
or killing her for, or in connection with demand of dowry, would certainly
bean offence involving moral turpitude. The person who was convicted
under Section 295 Indian Penal Code on its own would not involve moral
turpitude depriving him the opportunity to serve the State unless the facts
and circumstances which led to the conviction met the requirements of the
policy decision. In this case, a person was not convicted of an offence
under Section 302 of Indian Penal Code but it was observed that killing a
person itself is not sufficient to establish that such an act involves moral
turpitude. In Hikmat Ali Khan V. Ishwar Prasad Arya and others,
1997(2) AWC 851 (SC); AIR 1007 Sc 864, where an advocate
assaulted the opponent with knife in Court room, was held an offence
involving moral turpitude which disqualified him from being enrolled as an
advocate. In Rajendra Prasad Pandey V. High Court of Judicature at
Allahabad 1998(3) AWC 2349; (1998) 3 UPLBEC 2088, where the
petitioner was prosecuted for an offence derogatory to the dignity of
woman was held that it was an offence involving moral turpitude. In
Mahak Singh Vs. State of U.P. and others, 1999 (3) AWC 1858;
(1999) 2 UPLBEC 1336, the petitioner was removed as Pradhan of the
Gram Panchayat under Section 195 (1) (g) of the U.P. Panchayat Raj Act,
1947, on one of the grounds that he was convicted of the heinous offence
15
of murder and sentenced to life imprisonment. The Court in para 13 of the
judgment recorded a finding that the crime of murdering the step-mother
was shocking one and offence involves moral wickedness. His conviction
under Section 302/34 of Indian Penal Code involving moral turpitude was
sufficient enough to earn disqualification within the meaning of provision of
Section 5A(g) of the Act.
Division Bench of this court in the case of Ran Vijai Chandra Vs.
State of U.P. 2003(2) AWC 1385, after taking note of the judgements
quoted above has summed up as follows:-
19. The offence of murder is a heinous crime. It shows
deprave mentality of a man and shocks conscience of any sane
person. The society looks at such heinous crime as an act of
vileness, mental depravity and wickedness. However, there
may be mitigating circumstances which reflects that killing was
not an act of moral turpitude, e.g. (1) the person had no
intention to kill, e.g., he wanted to kill “A” but “B’ was killed by
mistake, (2) wanted only to beat but the person died under
certain circumstances, (3) there was a grave provocation and
he lost mental balance, (4) it was done in self defence, and (5)
any other circumstances from which it can be gathered that it
was not an act of mental depravity, wickedness or vileness.
This Court in the case of Keshav Singh Vs. State of U.P., Civil
Misc. Writ Petition No. 66981 of 2009 decided on 17.03.2010 held
as follows:
“The judgment of conviction in question has been perused, which
clearly reflects that as far as petitioner is concerned, role assigned to
him is that of exhortation, and this is admitted position that he had not
caused any injury whatsoever to any one, and to the contrary on the
record there is evidence to the effect that petitioner had also received
injuries and he was also medical examined on 16.8.1999 at 3.30 p.m.
In respect of injuries nos. 1 and 2, X-ray has been advised, and it was
found that petitioner has received fracture injuries. It is true that
petitioner has been convicted under Sections 147, 302/149, 307/149,
but there are mitigating circumstances which reflects that killing was not
at all an act of involvement of moral turpitude, inasmuch as incident in
question has taken place at the house of the petitioner, further
petitioner’s role was only that of exhortation and not causing injuries to
any one and petitioner himself had received injury, in such a situation
taking into account the entire circumstances of the case, murder which
16is in the sense aggravated form of hurt cannot be said in the facts of
present case to be involving moral turpitude. In the peculiar fact of the
case looking into the role of the petitioner assigned, the injuries received
by the petitioner, thus it can not be said that petitioner has been
convicted for an offence involving moral turpitude.”
On the parameters as set out facts of the present case are being
adverted to. Here it is true that petitioner has been assigned role of
exhortation but the judgment of conviction clearly reflects that offence was
not committed as a result of provocation, rather it was cold-blooded murder,
wherein petitioner had caught hold the deceased and in furtherance of
common intention offence was committed. The facts of present case are
matching with the facts of Dhanni Vs. State of U.P. 2010 (1) E&C pr 10
wherein also exhortation was there of the petitioner with others firing and
the view taken was that intention is clearly indicated and it was not on
provocation and as per plan commission of an offence had taken place in
such circumstances to say that the element of moral turpitude did not exist
is totally misconception of law. Here also it was pre-planned murder with
active role of exhortation and catching hold in such a situation to say that
offence, wherein petitioner has been convicted, does not involve element of
moral turpitude cannot be accepted.
In such a situation writ petition, lacks substance and is accordingly
dismissed.
Dated 3rd July, 2010
Dhruv