{"id":111182,"date":"2010-03-19T00:00:00","date_gmt":"2010-03-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vs-mr-hs-munshaw-for-on-19-march-2010"},"modified":"2015-12-30T03:30:14","modified_gmt":"2015-12-29T22:00:14","slug":"vs-mr-hs-munshaw-for-on-19-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vs-mr-hs-munshaw-for-on-19-march-2010","title":{"rendered":"========================================= vs Mr Hs Munshaw For on 19 March, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
========================================= vs Mr Hs Munshaw For on 19 March, 2010<\/div>\n
Author: D.H.Waghela,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/1134\/2010\t 8\/ 10\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1134 of 2010\n \n\n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE D.H.WAGHELA\n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n=========================================\n \n\nGOPALBHAI\nKHEMCHANDDAS PATEL \n\n \n\nVersus\n \n\nDISTRICT\nDEVELOPMENT OFFICER AND OTHERS\n \n\n========================================= \nAppearance\n: \nMR SHAKEEL A QURESHI for\nPetitioner. \nMR HS MUNSHAW for Respondent No.1. \nMS MOXA THAKKAR,\nAGP for Respondent No.2. \nMR PM THAKKAR, Senior Advocate for M\/S\nTHAKKAR ASSOC. for Respondent\nNo.3. \n========================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE D.H.WAGHELA\n\t\t\n\t\n\n \n\nDate\n: 19\/03\/2010 \n\n \n\nORAL\nJUDGMENT<\/pre>\n
1.\tRule.\n<\/p>\n
 Learned counsel for the respondents waive service.  The petition was
\ntaken up for final hearing in view of the urgency and importance of
\nthe issue involved and was heard in extenso. The petitioner
\nhas invoked Articles 226 of the Constitution to challenge order dated
\n29.1.2010 of the Additional Development Commissioner, whereby
\noriginal order dated 22.6.2009 of the District Development Officer
\nwas set aside, thereby setting at naught suspension of respondent
\nno.3 ordered in exercise of powers under Section 59 of the Gujarat
\nPanchayats Act, 1993 (for short  the Act ).  The petitioner is
\nthe original complainant in the FIR registered as C.R.No.125\/2009
\ndated 7.6.2009 and wherein respondent no.3, Sarpanch of
\nVillage-Jagudan, is accused no.1.  The complaint is for the offences
\npunishable under Sections 147, 148, 149, 337, 323 and 427 of the
\nIndian Penal Code.  There is no dispute about the facts that
\nrespondent no.3. was arrested and taken into custody on 8th
\nJune 2009 and he remained under arrest till 10th July
\n2009.  During that period show cause notice dated 16.6.2009 was
\nissued to respondent no.3 calling upon him to show cause why he
\nshould not be suspended from the office of Sarpanch in accordance
\nwith the provisions of Section 59 of the Act.  After affording to
\nthat respondent an opportunity of being heard, original order dated
\n22.6.2009 was made to temporarily suspend him on the basis that he
\nappeared to be involved in the offences involving moral turpitude in
\nrespect of which penal proceedings were instituted.  Obviously, that
\norder was made while the respondent was in judicial custody.  The
\nDistrict Development Officer considered the fact that petitioner
\nherein was alleged to have been called at the panchayat office and
\nbeaten with logs and hockey and had fractures on his body.  There was
\nno dispute about the fact that the respondent was in jail for nearly
\n35 days, and hence, could not discharge his duties as a Sarpanch.\n<\/p>\n
2.\tUpon
\nthat respondent filing an appeal, it was argued on his behalf that
\nDDO was required to apply his mind to the aspect of moral turpitude
\ninvolved in the alleged acts of the respondent.  By acceding to that
\nargument, the additional Development Commissioner held in the
\nimpugned order that the authority ought to have taken the facts and
\ncircumstances of the case into consideration and closely examined
\nwhether the element of moral turpitude was involved in the offences
\nalleged against respondent no.3.  Only on the ground that the
\noriginal order did not take into consideration several judgments of
\nthis Court, it was held that it was difficult to consider the
\nrespondent’s offences to be in the category of offences involving
\nmoral turpitude.  Being aggrieved by such order, the petitioner is
\nbefore this Court with the contention that the impugned order in
\nappeal is obviously and obnoxiously perverse and illegal.\n<\/p>\n
3.\tArguing
\nfor the respondent-Sarpanch, learned Senior Advocate, Mr.P.M.Thakkar
\nsubmitted that the appellate authority was right in insisting upon
\nproper application of mind by the DDO as far as the aspect of moral
\nturpitude in the alleged offences was concerned.  He further
\nsubmitted that this Court need not substitute its own judgment and
\nreasoning for the original order insofar as it was the appropriate
\nauthority which has to properly apply its mind and such application
\nof mind to the most important aspect must be explicit in the order
\nitself.   Learned counsel relied upon judgment of this Court in
\n Thakorbhai Bhagabhai v. D.D.O., Surat and Another<\/a>
\n[1980 (1) GLR 966],
\nto submit that criminal proceedings must have been initiated against
\nthe concerned office bearer of the Panchayat for the offences
\ninvolving moral turpitude and before such an office bearer can be
\nremoved, he must be charged with the offences arising out of an act
\nwhich is dishonest, immoral or unethical.  It is further observed in
\nthe judgment that the words  involving  moral turpitude  should
\nnot be given restrictive meaning, nonetheless, the officer concerned
\nmust be  imputed with the act constituting offence which is dishonest
\nor immoral or with conduct which is unethical as to render him unfit
\nto hold the office.  This Court therein quoted a paragraph from the
\njudgment of the Supreme Court in the
\nmatter of Mr.  P , an advocate [AIR
\n1963 SC 1313],
\nwherein Gajendragadkar J., inter
\nalia,
\nobserved in the context of a case against an advocate that any
\nconduct which makes a person unworthy to belong to the noble
\nfraternity of lawyers or makes an advocate unfit to be entrusted with
\nthe responsible task of looking after the interests of the litigant,
\nmust be regarded as conduct involving moral turpitude. Thus, instead
\nof prescribing a straight-jacket formula for examining the element of
\nmoral turpitude, the Supreme Court appears to have given wider
\nmeaning to the phrase  involving moral turpitude .  On the
\nfactual side, it was also submitted by learned Senior Advocate that
\nthe respondent Sarpanch had also filed his complaint against the
\noriginal complainant, the petitioner herein, and a charge sheet was
\nalso filed against original complainant in relation to the same
\nincident.  Be that as it may, the fact remains that the respondent
\nSarpanch was in jail at the relevant time and not only the offences
\ninvolving  moral turpitude were alleged against him in the FIR,
\nsubsequently even a charge sheet for the same offences is already
\nfiled in the criminal Court against him.\n<\/p>\n
4.\tIn
\nexamining merits of original order dated 22.6.2009, the authority was
\nrequired to examine the facts obtaining at that time and the most
\nrelevant factors were that respondent no.3 was charged for the
\noffences involving  moral turpitude and he was in jail, which made
\nhim incapable of discharging his duties as a Sarpanch.  On the
\nethical aspect of the matter, it would be very hard to even contend
\nthat offences of rioting in company of an unlawful assembly,
\nvoluntarily causing grievous hurt and causing such hurt by acts
\nendangering life or personal safety of others would not involve
\nmoral turpitude and a person charged with such offences can be
\nentrusted the duties and powers of the head of a Gram Panchayat.  The
\nview taken by this Court (Coram:N.N.Mathur, J.) in  Naranbhai
\nVeljibhai Chaudhary v. (Shri) R.S.Vaghela & Others<\/a>
\n[1996
\n(2) GLH 251]
\nwas followed in  Bhikhumiya
\nSarfumiya Malek v. D.D.O., Mehsana and Another<\/a>
\n[1999 (2) GLH 963]
\nwith the discussion as under:\n<\/p>\n
 8.\tBesides
\n this,  in the facts and circumstances of this
\ncase, I find that in the case of N.V.  Chaudhary  v. R.S.   Vaghela
\n(Supra)<\/a> it was considered as to what will constitute the offence
\ninvolving  moral  turpitude.  No rule of universal application can be
\nlaid down that every criminal  case will essentially be a case of an
\noffence involving moral turpitude.  It would depend upon the
\nfacts and circumstances of each and every case and the
\nbackground in which the offence is committed.  In a given case, even
\nan offence under S.302, may not be an offence involving moral
\nturpitude.   For example a son witnesses that his mother or sister or
\nwife is  being  molested  or raped and he is not able to control
\nhimself and kills the culprit,  it  will  not  at  all  be  a  case
\nof offence involving moral turpitude. In N.V.Chaudhary v.
\nR.S.Vaghela (Supra)<\/a> it has been considered and held as under:-\n<\/p>\n
“Thus, a Sarpanch cannot  be  suspended  just  on institution of Criminal Case.  Whether the act constitute an   offence  of  moral  turpitude,  there  cannot  be  a strait-jacket formula.  It  depends  on  various  factors including  the  manner  and  circumstances  in  which the offence alleged to have been  committed.    The rule of suspension  of a person holding public office is based on a public policy to maintain purity in  public  life.  A person facing charge of offence of moral turpitude should be barred from holding public office. However this power in current aggressive  competitive  politics must be exercised with great circumspection.  While criminalisation in public life is not unknown, the false implication has also become hazards of public life.  This has put more pressure on the Judiciary to scrutinise such cases with more care and caution.  It  is  true  that  it will not be for the Court to enter into the merits of the case,  but  still  it  is  desirable  to  undertake brief scrutiny of the facts to rule out  any chance of false implication.”\n<\/p>\n
5.\tRecently,
\nthis Court (Coram:Akil Kureshi, J.) in  Somabhai
\nBhagwanbhai Gohil v. State of Gujarat and Others<\/a>
\n[2006 (1) GLH 167]
\ncommented on the aspect of moral turpitude and noted that the
\nauthorities
\nhad mechanically come to the conclusion that the petitioner was
\ninvolved in offences involving moral turpitude.  Mere involvement in
\noffences punishable under Sections 323, 324, 504 and 506 of Indian
\nPenal Code  ipso
\nfacto
\nwould not constitute offence involving moral turpitude.  Without
\nthere being anything additional in the complaint, per
\nse
\nsuch offence cannot be categorized as one involving moral turpitude.
\nIn the facts of that case, the allegation against the petitioner was
\nof having entered into some fight with other villagers without any
\nelement of unethical behaviour or dishonest or immoral acts.  The
\nCourt came to the conclusion that the charges, even if proved, would
\nnot amount to conduct which can be described as inherently base, vile
\nor depraved.\n<\/p>\n
6.\tOn
\nthe other hand, judgment of this Court (Coram:R.K.Abichandani, J.) in
\n Jorabhai
\nHirabhai Rabari v. District Development Officer, Mehsana District and
\nAnother<\/a>
\n[1995 (2) GLH 698]
\nobserved as under:\n<\/p>\n
 4.
\n…………. Therefore, it would be a duty of a Sarpanch to
\nsafeguard the welfare of the village. The offences of attempted
\nmurder, rioting, causing injuries with sharp edged instrument if
\ncommitted by Sarpanch who is the Chief Executive of the village
\npanchayat would shock the general conscience of the society and
\nrender him unfit to become Sarpanch. The question whether an offence
\ninvolves moral turpitude or not cannot always be judged in isolation
\nand merely with reference to the ingredients of an offence. The
\nperson who commits the offence, the person against whom it is
\ncommitted, the manner and the circumstances in which it is alleged to
\nhave been committed and the values of the society are some of the
\nimportant factors which are required to be kept in mind before
\nconcluding whether the offence alleged to have been committed by the
\nperson involves moral turpitude. An offence of simple injury under
\nSection 323 IPC on the face of it may not involve moral turpitude but
\nit might assume a different colour when for instance it is committed
\nagainst one’s own teacher or parent which might shock the conscience
\nof the right thinking persons. Therefore, the observations which have
\nbeen made by the Hon’ble Mr. Justice B.K.Mehta in Thakorbhai
\nBhagabhai (supra) to the effect that it cannot be said that the
\nalleged offences under Sections 323, 324, 149, 147 of IPC and 135 of
\nthe Bombay Police Act were offences involving  moral turpitude in the
\nsense that the alleged acts can be said to be a conduct which is
\ncontrary to honesty, good morals or unethical since at the most it
\nwas on incident of some scuffle between the petitioner and other
\npersons alleged to be involved in the incident, are to be read in
\ncontext of the facts of that case and did not lay down a
\nstrait-jacket formulae that irrespective of the manner in which these
\noffences are committed or against whom they are committed and the
\ncircumstances under which they are committed, i.e. even without
\nreference to the facts of the case they should be treated as offences
\nnot involving moral turpitude.  …………………………  The
\ntruth of the allegations is not required to be gone into in a
\nproceeding under Section 59(1) and the only question which is
\nrequired to be decided by the authority under that provision is
\nwhether a criminal proceeding is instituted against the Sarpanch in
\nrespect of offences involving moral turpitude. It is not necessary
\nthat the offence should have been committed in connection with the
\nduties of a Sarpanch. It can be any offence involving moral turpitude
\nwhich would make him unfit to continue in the office of Sarpanch and
\nthe suspension would be justified………….\n<\/p>\n
7.\tThe
\nabove discussion would clearly show that the acts involving moral
\nturpitude have to be examined in the context of the facts and
\ncircumstances of each case but the consideration certainly has
\nmorality or lack of it as the central point of reference.  As
\ndiscussed herein above, and without going into the truth of the
\nallegations, the case against the respondent was that of calling a
\nperson to the office at night and beating him to the extent of
\ncausing fractures.  Even his application for regular bail was
\nrejected by learned Additional Sessions Judge on 12.6.2009, and
\ntherefore, it could not be disputed that respondent no.3 was in jail
\nat the relevant time when the original order dated 22.6.2009 was
\nmade.\n<\/p>\n
8.\tAccording
\nto the plain reading of the provisions of Section 59, it is not only
\nin case of institution of criminal proceeding in respect of an
\noffence involving moral turpitude that the Sarpanch or Upsarpanch of
\na village Panchayat could be suspended, but there are three other
\ncontingencies, in which the power can be or must be exercised to
\nsuspend such office bearer.  Those other contingencies include the
\ncontingency of the office bearer being detained in prison during
\ntrial for ANY offence, the contingency of such office-bearer
\nundergoing sentence of imprisonment or being detained under any law
\nrelating to preventive detention.  Therefore, at the time the first
\norder dated 22.6.2009 was made, the DDO was perfectly justified and
\nwithin legal limit of his powers in ordering suspension of respondent
\nno.3.  He could have completely ignored the aspect of the respondent
\nbeing involved in an offence involving or not involving moral
\nturpitude and the exercise of power would have been justified only on
\nthe ground of the respondent having been detained in prison at the
\nrelevant time.  It would be a travesty of the ideals of Local Self
\nGovernment if a person can head the Village Panchayat in his capacity
\nas a Sarpanch while he remains in jail in connection with the
\noffences registered against him.  In such circumstances, it would be
\nimperative for the authorities to exercise the powers conferred upon
\nthem under Section 59 of the Act.\n<\/p>\n
9.\tReading
\nthe impugned order of the appellate authority in the above context,
\nit is found and held to be completely perverse and oblivious of the
\nexpress provisions of Section 59 of the Act.  It is indeed
\nunfortunate that higher officer of the rank of Additional Development
\nCommissioner should exercise his appellate powers to rescind an order
\nmade in due exercise of the powers conferred upon the District
\nDevelopment Officer, particularly, in the facts and circumstances of
\nthe present case.  Therefore, the impugned order is not only required
\nto be set aside but it has to be deprecated in no uncertain terms.\n<\/p>\n
10.\tThe
\nlast argument of learned Senior Advocate, Mr.Thakkar based on the
\noriginal show cause notice dated 16.6.2009 and the contention that
\nDDO was indeed required to apply his mind to the aspect of moral
\nturpitude in view of the judgment of this Court cited before him,
\nparticularly when the show cause notice mentioned that the offences
\nalleged against the respondent were involving moral turpitude, has to
\nbe dealt with in the broad framework of the scheme and provisions of
\nthe Act.  Section 55 of the Act vests the executive powers of the
\nvillage Panchayant in the Sarpanch and makes him directly responsible
\nfor due fulfillment of the duties imposed upon the panchayat by or
\nunder the Act.  The provisions of Section 57 render the Sarpanch
\nliable to be removed for misconduct in the discharge of his duties or
\ndisgraceful conduct or abuse of power or persistent default in
\nperforming his duties or becoming incapable of performing his duties.
\n An express provision is made in Section 57 to provide for notice,
\nopportunity of hearing and enquiry to give to the proceedings some
\ntrappings of an adjudication.  And the provisions of Section 59
\nprovide for suspension of Sarpanch or Upa-Sarpanch in the
\ncircumstances mentioned earlier.  Section 59 expressly confers
\ndiscretionary powers upon the District Development Officer to suspend
\nSarpanch or Upa-Sarpanch, predicated upon fulfillment of certain
\nconditions and does not provide for an opportunity of being heard or
\neven issuance of a show Cause Notice.  If, even then, the DDO has
\nsought to observe the principles of natural justice, the suspended
\nSarpanch cannot be allowed to bank upon some defect or omission in
\nthe Show Cause Notice, if he were otherwise liable to be suspended.
\nIn view of the conscious exclusion of any adjudication preceding the
\nsuspension, and in view of the urgent and summary nature of requisite
\nverification about fulfillment of conditions precedent to exercise of
\npower, the order of suspension under Section 59 of the Act cannot be
\nassailed on the grounds of violation of principles of natural
\njustice.  The impugned order of the appellate authority has
\ncompletely overlooked this legal aspect of the matter.  This is not
\nto say that the appellate authority could not have considered the
\nplea about the offences in question having involved or not involved
\nmoral turpitude or about any other legal defect in the order of
\nsuspension. It must, however, always be remembered that Panchayati
\nRaj institutions are accorded a place of pride in our Constitution as
\nunits of local-self-government and the fundamental duties of every
\ncitizen, including competent and appellate authorities, include
\nfollowing the noble ideals which inspired the freedom struggle and
\nabjuring violence.  Moral turpitude involved in an act of violence
\nought to be examined keeping in view not only the Constitutional
\nideals but fundamental duties of a citizen and the standard has to be
\nhigher and not lower for people in public life.\n<\/p>\n
11.\tIn
\nthe facts and for the reasons discussed hereinabove, the petition is
\nallowed and impugned order dated 29.1.2010 of the Additional
\nDevelopment Commissioner is set aside.  Rule is made absolute with no
\norder as to costs.\n<\/p>\n
12.\tUpon
\nthis order being dictated in the open Court, request was made by
\nlearned Senior Advocate, Mr.Thakkar that operation and effect of this
\norder may be stayed for four weeks.  There being no justification for
\ngranting such request, it is rejected.\n<\/p>\n
(D.H.Waghela,
\nJ.)<\/p>\n
*malek<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
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Gujarat High Court ========================================= vs Mr Hs Munshaw For on 19 March, 2010 Author: D.H.Waghela,&Nbsp; Gujarat High Court Case Information System Print SCA\/1134\/2010 8\/ 10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1134 of 2010 For Approval and Signature: HONOURABLE MR.JUSTICE D.H.WAGHELA ========================================= 1 Whether Reporters of Local Papers […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-111182","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\n========================================= vs Mr Hs Munshaw For on 19 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vs-mr-hs-munshaw-for-on-19-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"========================================= vs Mr Hs Munshaw For on 19 March, 2010 - 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