{"id":71648,"date":"2010-07-03T00:00:00","date_gmt":"2010-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-yadav-vs-state-of-u-p-thru-secretary-on-3-july-2010"},"modified":"2018-11-17T04:42:16","modified_gmt":"2018-11-16T23:12:16","slug":"rajendra-yadav-vs-state-of-u-p-thru-secretary-on-3-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-yadav-vs-state-of-u-p-thru-secretary-on-3-july-2010","title":{"rendered":"Rajendra Yadav vs State Of U.P. Thru. Secretary … on 3 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Rajendra Yadav vs State Of U.P. Thru. Secretary … on 3 July, 2010<\/div>\n
                                                                    A.F.R.\n                                                            Court No. 21\n                                              Reserved on 26st May, 2010\n                                             Delivered on 03rd July, 2010\n\n                 Civil Misc. Writ Petition No. 12150 of 2010\n\n                               Rajendra Yadav\n\n                                    Versus\n\n                          State of U.P. and others\n\nHon'ble V.K.Shukla,J\n      Present writ petition in question has been filed for quashing of the\norder dated 01.02.2010 (Annexure-5) passed by District Magistrate, Ballia\nproceeding to pass order of removal of the petitioner from the post of\nPradhan of Gram Panchayat Gangapur Block Bariya District Ballia.\n      Brief background of the case is that General Election of Gram\nPanchayat was held. Petitioner has also filed his nomination paper for the\npost of Pradhan of Gram Sabha, Gangapur, Block Bariya, District Ballia and\nin the said election so held petitioner was declared elected. While petitioner\ncontinued to perform and discharge duties as Pradhan in Criminal Trial S.T.\nNo. 334 of 1997 (State of U.P. Vs. Harendra Yadav and others) arising out\nof Case Crime No. 118 of 1995 under Sections 302\/34 IPC, order of\nconviction has been passed by Special\/Additional Session & District Judge,\nBallia on 25.08.2009 and pursuant thereto petitioner was taken into custody\nand thereafter petitioner preferred Criminal Appeal No. 5312 of 2009\n(Harendra Yadav and other Vs. State of U.P.) before this Court and this\nCourt on 28.10.2009 passed order for releasing the petitioner on bail.\nDistrict Magistrate thereafter on 11.11.2009 issued show cause notice to\npetitioner mentioning therein that petitioner has been convicted in criminal\ncase wherein sentence of life imprisonment alongwith fine has been\nimposed and charges leveled therein involved moral turpitude, as such\npetitioner may submit his reply within fifteen days, as to why he should not\nbe removed Pursuant thereto petitioner submitted his reply on 30.11.2009\nand also requested that in public interest petitioner be permitted to resume\nhis job of Pradhan. District Magistrate has considered the reply so filed by\nthe petitioner and found that petitioner was an accused in a murder case\n                                       2\n\ninvolving moral turpitude in such a situation his continuance as Pradhan was\ntotally improper and removal was essential, and in this background order of\nremoval has been passed.\n      Supplementary affidavit has also been filed in reference of reference\nof question of disqualification of the petitioner under Section 6A to\nPrescribed Authority on 12.03.2010.\n      Time was accorded for filing counter affidavit but no counter affidavit\nhas been filed till date and thereafter with the consent of the parties on\n20.05.2010 date was fixed for 26.05.2010 for hearing then on 26.05.2010\nwith the consent of the parties matter has been finally heard for final\ndecision.\n      Sri Dan Bahadur Yadav, Advocate appearing with Sri R.K.Yadav,\nAdvocate, contended with vehemence that in the present case District\nMagistrate, Ballia has erred in law in not referring matter on the question of\ndisqualification of petitioner to the Prescribed Authority under Section 6A of\nthe Act and illegally assumed the power of Prescribed Authority and decided\nthe question of disqualification of the petitioner under Section 5A of U.P.\nPanchayat Raj Act, 1947, as such order passed is totally without jurisdiction,\nand further the offence wherein petitioner has been convicted, in no manner\nhas the element of involvement of moral turpitude in such a situation writ\npetition deserves to be allowed.\n      Countering the said submission learned Standing counsel on the other\nhand contended that here District Magistrate has exercised delegated\nauthority of the State Government under Section 95(1)(g) of U.P. Panchayat\nRaj Act, 1947 and once authority of external control has been exercised and\npetitioner suffers from disqualification then in such a situation order\nimpugned does not warrant any interference by this Court.\n      After respective arguments have been advanced position which is\nemerging, that Part-IX of the Constitution of India deals with Panchayat and\nsame has been inserted by the Constitution 73rd Amendment Act, 1992 with\neffect from 24.04.1993. Under the scheme of the aforesaid Constitutional\nprovision Panchayat has been defined under Article 243 (d), to be an\ninstitution of self government constituted under Article 243-B for the rural\nareas. Article 243-B deals with constitution of Panchayats and Article 243-C\n                                            3\n\ndeals with Composition of Panchayats. Article 243 -E deals with duration of\nPanchayats etc. Article 243-F deals with disqualifications for membership.\nRelevant Article 243-F is being quoted below:\n             \"243-F. Disqualifications for membership - (1) A person shall\n      be disqualified for being chosen as, and for being, a member of a\n      Panchayat -\n      a) if he is so disqualified by or under any law for he time being in force\n      for the purposes of elections to the Legislature of the State concerned :\n             Provided that no person shall be disqualified on the ground that\n      he is less than twenty-five years of age, if he has attained the age of\n      twenty-one years;\n      b) if he is so disqualified by or under any law made by the Legislature of\n      the State.\n      (2)if any question arises as to whether a member of a Panchayat has\n      become subject to any of the disqualification mentioned in clause (1), the\n      question shall be referred for the decision of such authority and in such\n      manner as the Legislature of a State may, by law, provide.\"\n\n      Bare perusal of the provision quoted above would go to show that\nunder sub-section (2) of Article 243-F, if question arises as to whether a\nmember of Panchayat has become subject to any of the disqualifications\nmentioned in clause (1) the question shall be referred for the decision of\nsuch authority and in such manner as the Legislature of a State may by law,\nprovide.\n      Under U.P. Panchayat Raj Act, 1947, Chapter II deals with\nestablishment and constitution of Gram Sabhas and Gram Panchayat and\nChapter II-A deals with disqualifications of members of Gram Panchayat and\nelectoral Roll etc. Section 5-A has been inserted by U.P. Act No. IX of 1994\nand therein disqualification for membership has been provided for by\nmentioning that a person shall be disqualified for being chosen as and for\nbeing Pradhan or member of Gram Panchayat. Section 6-A deals with\ndecision on the question as to disqualification. Under Chapter VII, Section\n95(1)(g) deals with external control of the State Government. Relevant\nprovisions are being extracted below;\n      Section 5A . Disqualification for membership.- A person shall be\n      disqualified for being chosen as, and for being the Pradhan or a member\n      of a Gram Panchayat, if he-\n                                       4\n\n(a) is so disqualified by or under any law for the time being in force for\nthe purposes of elections to the State Legislature.\n       Provided that no person shall be disqualified on the ground that he\nis less than twenty-five years of age, if he has attained the age of twenty-\none years;\n       (b) is a salaried servant of the Gram Panchayat or a Nyaya\nPanchayat;\n       (C) holds any office of profit under a State Government or the\nCentral Government or a local authority, other than a Gram Panchayt or\nNyaya Panchayat; or a Board, Body or Cooperation owned or controlled by\na State Government or the Central Government;\n       (d) has been dismissed from the service of State Government the\nCentral Government or a local authority or a Nyaya Panchayt for\nmisconduct;\n       (e) is a in arrears of any tax, fee, rate or any other dues payable\nby him to the Gram Panchayt, Kshetra Panchayat or Zila Panchayat for\nsuch period as may be prescribed, or has, in spite of being required to do\nso by the Gram Panchayt, Nyaya Panchayt, Kshetra Panchayat or Zila\nPanchayat failed to deliver to it m\\any record or property belonging to it\nwhich had come into his possession by virtue of his holding any office\nunder it;\n       (f) is an un discharged insolvent;\n       (g) has been convicted of an offence involving moral turpitude;\n       (h) has been sentenced to imprisonment for a term exceeding\nthree months for contravention of any order made under the Essential\nCommodities Act, 1955;\n(i) has been sentenced to imprisonment for a term exceeding six months\nor to transportation for contravention of any order made under the\nEssential Supplied (Temporary Powers) Act, 1946 or the U.P. Control of\nSupplies (Temporary Powers) Act, 1947\n       (j) has been sentenced to imprisonment for a term exceeding\nthree months under the U.P. Excise Act, 1910.\n       (k) has been convicted of an offence under the Narcotic Drugs and\nPsychotropic Substances Act, 1985.\n       (l) has been convicted of an election offence;\n       (m) has been convicted of an offence under the U.P. Removal of\nSocial Disabilities Act, 1947 or the Protection of Civil Rights Act, 1955; or\n       (n) has been removed from office under sub-clause (iii) or (iv) of\nclause (g) of sub-section (1) of Section 95 unless such period, as has\nbeen provided in that behalf in the said section or such lesser period as\n                                         5\n\nthe State Government may have ordered in any particular case, has\nelapsed;\n        Provided that the period of disqualification under clauses (d), (f),\n(g), (h), (i), (j), (k), (l) or (m) shall be five years from such date3 as may\nbe prescribed.\n        Provided further that the disqualification under clause (e) shall\ncease upon payment of arrears or delivery of the record or property, as\nthe case may be;\n        Provided also that a qualification under any of the clauses referred\nto in the first proviso may, in the manner prescribed, be removed by the\nState Government.\n6-A. Decision on question as to disqualifications.-If any question\narises as to whether a person has become subject to any disqualification\nmentioned in Section 5-A or in sub-section (1) of Section 6, the question\nshall be referred to the prescribed authority for his decision and his\ndecision shall, subject to the result of any appeal as may be prescribed,\nbe final.\"\n\"Section 95(1)(g) :- Remove a Pradhan, Up-Pradhan or member of a Gram\nPanchayat or a Joint Committee of Bhumi Prabandhak Samiti(***) or a\nPanch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he\n        (i) absents himself without sufficient cause for more than three\nconsecutive meetings or sittings.\n        (ii) Refuses to Act or becomes incapable of acting for any reason\nwhatsoever or if he is accused of or charged for an offence involving moral\nturpitude.\n        (iii) has abused his position as such or has persistently failed to\nperform the duties imposed by the Act or rules made hereunder or his\ncontinuance as such is not desirable in public interest, or\n        (iii-a) has taken the benefit of reservation under sub-section (2) of\nSection 11-A or sub-section (5) of Section 12, as the case may be, on the\nbasis of a false declaration subscribed by him stating that he is a member of\nthe Scheduled Castes, the Scheduled Tribes or the Backward Classes, as the\ncase may be .\n        (iv) Being a Sahayak Sarpanch or a Sarpanch of the Nyaya Panchayat\ntakes active part in politics, or\n        (v) suffers from any of the disqualifications mentioned in clauses (a)\nto (m) of Section 5-A.\n        Provided that where, in an enquiry held by such person and in such\nmanner as may be prescribed, a Pradhan or Up-Pradhan is prima facie found\nto have committed financial and other irregularities such Pradhan or Up-\nPradhan shall cease to exercise and perform the financial and administrative\n                                              6\n\n      powers and functions, which shall , until he is exonerated of the charges in\n      the final enquiry be exercised and performed by a Committee consisting of\n      three members of Gram Panchayhat appointed by the State Government.\n             Provided that-\n             (I) no action shall be taken under clause (f), clause (g) except after\n      giving to the body or person concerned a reasonable opportunity of showing\n      cause against the action proposed.\"\n             ii- 1[* * *]\n\n      In order to make provisions of Section 5A workable provisions of U.P.\nPanchayat Raj (Computation of Period of Five years for Removal of\nDisqualification, Fixation of Period of Dues etc. and Settlement of Disputes\nof Disqualification) Rules 1994 have been inserted by notification dated\n10.09.1994 in exercise of powers vested under Section 110 read with\nSection 5-A and Section 6-A of the United Provinces Panchayat Raj Act,\n1947 the Governor Rules are being extracted below:\n             1.      Short title- These rules may be called the Uttar Pradesh\n      Panchayat Raj (Computation of Period of five years for Removal of\n      Disqualification, Fixation of Period of Dues etc. and Settlement of\n      Disputes of Disqualification) Rules 1994.\n      2.     Definitions- In these rules, unless there is anything repugnant\n      in the subject or context-\n      3.     Computation of period of five years- The date from which\n      the period of five years for removal of disqualification under clauses\n      (d),(f),(g),(h), (i), (j)(k),(l) or (m) of Section 5-A of the Act shall be\n      computed will be as follows :--\n             (a)     For clause (d), from the date of dismissal;\n             (b)     For clause (f), from the date on which the insolvent is\n      discharged;\n             (c)     For clauses (g), (h), (i),(j),(k), (l) or (m);\n             (i) In case of sentence of imprisonment, from the date of expiry\n      of the period of sentence\n             (ii)    In case of sentence of fine, from the date of payment or\n      recovery thereof;\n             (iii)   In the case of sentence of both imprisonment and fine,\n      from the date of expiry of sentence, or payment or recovery of fine,\n      which ever is later.\n      4.     Removal of disqualification under Section 5-A-(1)-An\n      application for removal of the disqualification under clauses (d), (f), (g),\n      (i), (j), (k), (l), or (m), of Section 5-A of the Act shall be in the form\n                                             7\n\n      given in the Appendix and shall show the grounds upon which the\n      applicant claims removal of the disqualification.\n      (2) The application shall be presented to Sub-Divisional Officer of Sub-\n      Division concerned.\n      (3) The Sub-Divisional Officer may, after such enquiry as he deems fit,\n      either accept the application and remove the disqualification or reject\n      the application.\n      (4) A copy of the order passed under sub-rule (3), removing the\n      disqualification shall be sent to the secretary of the concerned Gram\n      Panchayat and to the Assistant Development Officer (Panchayat) and to\n      the concerned Kshettra Panchayat.\n      5.     Reference under Section 6-A pertaining to disqualification:-(1)\n      Where any question as is referred to in Section 6-A of the Act is raised\n      otherwise than in a claim or objection, it shall be referred to the\n      Tehsildar by the officer or authority before whom such question arises\n      for consideration.\n      (2)    On the receipt of a reference under sub-rule (1) the Tehsildar\n      shall fix the date, time and place for it's hearing and shall give notice to\n      the parties concerned.\n      (3)    The Tehsildar shall after hearing the parties and after such other\n      enquiries as he deems fit, give his decision on the question referred to\n      him.\n      (4)    Any person aggrieved by the order of the Tehsildar may, within\n      fifteen days of the date of such order, prefer an appeal to the Sub-\n      Divisional Officer.\n      (5)    The Sub-Divisional Officer, shall after notice to the parties and\n      after haring such of them as desire to be heard, dispose of the appeal.\n      (6)    A copy of the final order passed on the question referred to the\n      Tehsildar as modified in appeal, if any, shall be forwarded to the\n      Secretary of the Gram Panchayat and to the Assistant Development\n      Officer (Panchayat) of the concerned Kshettra Panchayat.\"\n\n      Provisions quoted above would go to show that Section 5-A deals with\ndisqualification of membership under clauses (a) to (n). On plain reading of\nthe section, it seems clear from the language in which said provision has\nbeen couched that same is intended to be mandatory in character. The use\nof word \"shall\" brings out imperative character, that person shall be\ndisqualified for being chosen and for being Pradhan or member of Gram\nPanchayat, if he\/she suffers from any of the disqualification mentioned\ntherein, clause (a) to (n). It covers disqualification, both at pre election\n                                          8\n\nstage as well as of post election stage. A person cannot be disqualified\nunless he suffers disqualification laid down in Section 5A of U.P. Panchayat\nRaj Act, 1947. To this substantive provision of disqualification, three proviso\nhave been added. The first proviso provides that the period of\ndisqualification under clauses (d), (f), (g), (h), (i), (j), (k), (l) or (m) shall be\nfive years from such date as may be prescribed and second proviso covers\nclause (e) and mentions that the disqualification under clause (e) shall cease\nupon payment of arrears or delivery of the record or property, as the case\nmay be; and the third proviso gives right to the State Government in respect\nof disqualification under any of the clauses referred to in the first proviso\nmay, in the manner prescribed, be removed by the State Government.\nSection 6-A confers authority to give decision, if any question arises as to\nwhether a person has become subject to any disqualification mentioned in\nSection 5-A or in sub-section (1) of Section 6, the question shall be referred\nto the prescribed authority for his decision and his decision shall, subject to\nthe result of any appeal as may be prescribed be final. Section 95(1)(g) of\nU.P. Panchayat Raj Act, 1947 falling under Chapter VII deals with authority\nof external control of the State Government and confers authority on the\nState Government to pass order of removal even in cases where Pradhan\nsuffers from any of the disqualification mentioned in clauses (a) to (m) of\nSection 5-A of the Act.\n      Under U.P. Panchayat Raj (Computation of Period of Five years for\nRemoval of Disqualification, Fixation of Period of Dues etc. and Settlement\nof Disputes of Disqualification) Rules 1994, Rule 3 deals with computation of\nperiod of five years and Rule 4 deals with that an application for removal of\nthe disqualification under Clauses (d), (f), (g), (h), (i), (j), (k), (l) or (m) of\nSection 5-A of the Act, shall be in the form given in the Appendix and shall\nshow the grounds upon which the applicant claims removal of the\ndisqualification. Sub-Rule (2) of Rule 4 of 1994 Rules deals with and\nprovides that application shall be presented to Sub-Divisional Officer of the\nSub-Division concerned. Rule 5 of 1994 Rules deals with situation wherein\nquestion under Section 6-A pertaining to disqualification is raised otherwise\nthan in a claim or objection, it shall be referred to the Tehsildar by the\nofficer or authority before whom such question arises for consideration.\n                                       9\n\nSub-Rule (2) of Rule 5 of Rules 1994 deals with that Tehsildar shall fix the\ndate, time and place for its hearing and shall give notice to the parties\nconcerned. Sub-Rule (4) of 1994 Rules deals with any person aggrieved by\nthe order of the Tehsildar may, within fifteen days of the date of such order,\nprefer an appeal to the Sub-Divisional Officer. Sub-Rule (5) of Rule 5 of\n1994 Rules deals with that Sub-Divisional Officer, shall after notice to the\nparties and after haring such of them as desire to be heard, dispose of the\nappeal and thereafter Sub-Rule (6) of Rule 5 deals with a copy of the final\norder passed on the question referred to the Tehsildar as modified in\nappeal, if any, shall be forwarded to the Secretary of the Gram Panchayat\nand to the Assistant Development Officer (Panchayat) of the concerned\nKshettra Panchayat.\n      On the parameter as provided for in the present case as far as\nauthority of District Magistrate to pass order of removal is concerned same\nis not at all doubted but the larger question raised here in the present case\nis as to whether the procedure which has been adopted by District\nMagistrate is the procedure prescribed\/ subscribed by statute or not. Article\n243-F of the Constitution of India clearly provides that      if any question\narises as to whether a member of a Panchayat has become subject to any\nof the disqualification mentioned in clause (1), the question shall be referred\nfor the decision of such authority and in such manner as the Legislature of a\nState may, by law provide. In consonance with the Constitutional mandate\nunder U.P. Panchayat Raj Act with akin language if any question arises as to\nwhether a person has become subject to any disqualification mentioned in\nSection 5A or sub-section (1) of Section 6 of the Act. Said question of\ndisqualification has to be answered by the Prescribed Authority under\nSection 6-A and its decision is subject to the decision of appeal as provided\nfor. Under U.P. Panchayat Raj (Computation of Period of Five years for\nRemoval of Disqualification, Fixation of Period of Dues etc. and Settlement\nof Disputes of Disqualification) Rules 1994 framed in exercise of power\nvested under Section 110 read with Section 5-A and Section 6-A of the\nUnited Provinces Panchayat Raj Act, 1947. Rule 5 deals with references\npertaining to disqualification, where any question as is referred to in Section\n6A of the Act is raised otherwise than in claim or objection, the same has to\n                                        10\n\nbe referred to the Tehsildar. Reference has to be made in three\ncontingency, (i) where any question as referred to in Section 6A is raised by\nway of claim (ii) where any question as referred to in Section 6A is raised by\nway of objection (iii) where any question as referred to in Section 6A of the\nAct is raised otherwise than the claim or objection.\n      Suffers from disqualification mentioned in Clause (a) to (m) of Section\n5-A in itself confers authority on the State Government to take remedy of\nremoval, as law in its wisdom considers it unwise to continue the incumbent\nwho suffers from disqualification. Sufferance precedes disqualification as an\nincumbent cannot be disqualified unless he suffers disqualification\nprescribed under Section 5A. Said sufferance, on being questioned either by\nclaim or objection or otherwise is to be decided as per the parameters of\nSection 6A read with 1994 Rules. Section 6-A talks of decision on question\nas to disqualification. Period of disqualification under clauses (d), (f), (g),\n(h), (i), (j), (k), (l) or (m) under Section 5A is five years from such date as\nmay be prescribed. Under 1994 Rules, Rule 3 deals with computation of\nperiod of five years and for clauses (g), (h), (i), (j), (k), (l), (m), said five\nyears period has been made applicable (i) in case of sentence of\nimprisonment, from the date of expiry of period of sentence (ii) in case of\nsentence fine, from the date of payment or recovery thereof (iii) in the case\nof sentence of both imprisonment and fine, from the date of expiry of\nsentence or payment of recovery of fine, whichever is later.\n      Period of disqualification, ipso facto starts the moment order of\nimprisonment is passed for offences involving moral turpitude, and other\noffences as provided under clause (g) to (m) of Section 5A of the Act and\nthe date from which the period of five years for removal of disqualification\nhas to be computed has also been provided. In the case of sentences also,\nwhere order of conviction has been passed followed by sentence, after five\nyears from the date of expiry of sentence an application can be moved for\nremoval of disqualification and not before that. It is only when any question\narises, as to whether a person has become subject to any disqualification\nmentioned in Section 5-A or sub-section (1) of Section (6), the question has\nto be referred to the Prescribed Authority. Said question can be raised either\nby way of claim or objection or otherwise. Raising of question is condition\n                                           11\n\nprecedent for making of reference.\n      Petitioner at no point of time raised any question by way of claim or\nobjection and neither at any point of time any question has been raised\nbefore the authorities concerned otherwise also that petitioner is not at all\nsubject to any disqualification, in the absence of said question being raised\nby way of claim or objection or otherwise, the District Magistrate was not at\nall all obliged to refer the matter as is provided for under Section 6A read\nwith 1994 Rules. Show cause notice dated 11.11.2009 was clear and\ncategorical that petitioner has been convicted in murder case, same falls\nwithin the scope and ambit of offence involving moral turpitude. Reply dated\n30.11.2009, no where raises the question that petitioner is not disqualified,\nrather proceeds to mention that Criminal Appeal has been filed, and he has\nbeen directed to be released on bail on 04.11.2009, and in public interest,\nhe should be permitted to function. Once this question has never been\nraised and it was accepted that disqualification was there, in such a\nsituation reference under Section 6-A read with 1994 Rules was not at all\nrequired in the facts of case.\n      At last it has been sought to be contended that Criminal Appeal is\npending and offence of murder does not involve moral turpitude as\npetitioner role is that of exhortation.\n      Hon'ble Apex Court n the case of B.R. Kapur V.State of T.N. and\nanother reported in 2001(7) SCC 231 has proceeded to consider the\nimpact of conviction and further proceed to mention that disqualification\nwhich is attached to conviction and sentence applies to the same as well.\nRelevant para 34 and 40 are being extracted below:-\n\n      \"34. It is true that the order of the High Court at Madras on the\n      application of the second respondent states: \"Pending criminal<\/pre>\n
      appeals the sentence of imprisonment alone is suspended and the
\n      petitioners shall be released on bail …..”, but this has to be read
\n      in the context of Section 389 under which the power was
\n      exercised. Under Section 389 an appellate court may order that
\n      “the execution of the sentence or order appealed against be
\n      suspended ….:. It is not within the power of the appellate court to
\n      suspend the sentence; it can only suspend the execution of the
\n      sentence pending the disposal of appeal. The suspension of the
\n      execution of the sentence does not alter or affect the fact that the
\n      offender has been convicted of a grave offence and has attracted
\n      the sentence of imprisonment of not less than two years. The
\n                                         12<\/span><\/p>\n
      suspension of the execution of the sentences, therefore, does not
\n      remove the disqualification against the second respondent. The
\n      suspension of the sentence, as the Madras High Court erroneously
\n      called it, was in fact only the suspension of the execution of the
\n      sentences pending the disposal of the appeals filed by the second
\n      respondent. The fact that she secured the suspension of the
\n      execution of the sentences against her did not alter or affect the
\n      convictions and the sentences imposed on her and she remained
\n      disqualified from seeking legislative office under Section 8(3).\n<\/p>\n
      40. In much the same vein, it was submitted that the
\n      presumption of innocence continued until the final judgment
\n      affirming the conviction and sentence was passed and, therefore,
\n      no disqualification operated as of now against the second
\n      respondent. Before we advert to the four judgments relied upon in
\n      support of this submission, let us clear the air. When a lower court
\n      convicts an accused and sentences him, the presumption that the
\n      accused is innocent comes to an end. The conviction operates that
\n      the accused has to undergo the sentence. The execution of the
\n      sentence can be stayed by an appellate court and the accused
\n      released on bail. In many cases, the accused is released on bail so
\n      that the appeal is not rendered infructuous, at least in part,
\n      because the accused has already undergone imprisonment. If the
\n      appeal of the accused succeeds the conviction is wiped out as
\n      cleanly as if it had never existed and the sentence is set aside. A
\n      successful appeal means that the stigma of the offence is
\n      altogether erased. But that is not to say that the presumption of
\n      innocence continues after the conviction by the trial court. That
\n      conviction and the sentence it carries operate against the accused
\n      in all their rigour until set aside in appeal, and a disqualification
\n      that attaches to the conviction and sentence applies as well.”\n<\/p>\n
      Inevitable conclusion is that as far as order of conviction is concerned
\nmerely because order of bail has been passed, same will not alter or effect
\nthe conviction and disqualification attached to the said conviction has to be
\ngiven effect to, unless and until specific order is passed by Appellate Forum
\nunder Section 389 (1) Cr.P.C, staying conviction and sentence to save the
\npetitioner from the clutches of disqualification see Ravi Kant S. Patil Vs.
\nSarvphouma. S. Bagli 2007 (1) SCC 673.\n<\/p>\n
       Under Section 5A, person is disqualified from being chosen and for
\nbeing member of Gram Panchayat if he has been convicted of an offence
\ninvolving moral turpitude. Once conviction is attended               with offence
\ninvolving moral turpitude, then disqualification is attached to the same and
\nincumbent is not entitled to hold the office. Question to be answered is as
\nto whether in the Sessions trial wherein petitioner has been convicted, the
\noffence is of such nature that it involves moral turpitude ?.\n<\/p>\n
      The word” moral turpitude” has not been defined under the Indian
\n                                       13<\/span><\/p>\n
Penal Code or anywhere else. In Black’s Law Dictionary the meaning of
\n‘Moral’ has been given as under: Moral.- Pertains to character, conduct
\nIntention, social relation.(1) Pertaining or relating to the conscience or
\nmoral sense or to the general principles of right conduct. (2) Cognizable or
\nenforceable only by the conscience or by the principles of right conduct, as
\ndistinguished from positive law. (3) Depending upon or resulting from
\nprobability raising a belief or conviction in the mind independent of strict or
\nlogical proof. (4) Involving or affecting the moral sense; as in the Phrase’
\nMoral Insanity”.”\n<\/p>\n
      The meaning of “moral turpitude” has been given as under:”Moral
\nturpitude”- An act of baseness, vileness, or depravity in the private and
\nsocial duties which a man owes to his fellow men, or to society in general,
\ncontrary to the accepted and customary rule of right and duty between man
\nand man.        Conduct contrary to justice, honesty, modesty, or good
\nmorals.”:\n<\/p>\n
       Different persons may have different views in regard to baseness
\nvileness or depravity in conduct of a man. One may take a narrow view and
\nthe other may take a liberal view. The broad principle may be when the
\nconduct of a man shocks the conscience of people in regard to action or
\nconduct of a man. If the law prohibits to do an act and it is violated, such
\nviolation may be with a deliberate intention or it may be under certain
\ncircumstances which may not amount to “moral turpitude”. It depends upon
\nthe facts of each case. It has been subject to discussion in various decision.\n<\/p>\n
      In Harsuck Rana Vs. Sarnam Singh, 1964 ALJ 1118, the
\nquestion as to whether a conviction under Section 302\/149 of Indian Penal
\nCode could be deemed a conviction for an offence involving moral turpitude
\nwas considered in detail. The Court laid down the following legal
\nproposition:    “Turpitude’ is a word of high emotional significance,
\nsuggesting conduct of such depravity as to excite feelings of disgust and
\ncontempt. The crime of simple hurt does not normally provoke any such
\nreaction and   consequently, cannot be classed       as an offence involving
\nmoral turpitude; and it seems to me that there is no logical reason why the
\noffence of murder, which in a sense is only an aggravated form of hurt,
\nshould be held necessarily to involve moral turpitude. I am willing to
\n                                      14<\/span><\/p>\n
concede that murders which are premeditated and planned in cold blood,
\nthose which are perpetrated for some base motive and those which are
\ncarried out with extreme ferocity and cruelty do involve moral turpitude, as
\nthey naturally invoke spontaneous feeling of repulsion and condemnation in
\nthe mind. But a murder committed in the heat of a fight or in response to
\nserious provocation could hardly be placed in the same category.\n<\/p>\n
        The question is as to whether if a person takes life of another
\nperson by killing him, can it be taken as offence involving moral turpitude.
\nThe matter was considered by the Apex Court in Pavan Kumar Vs. State
\nof Haryana and others, JT 1996(5) Sc 155, and it was held that moral
\nturpitude is an expression which is used in legal as also societal parlance
\nand describes the conduct which is inherently base, vile deprave or having
\nany connection showing depravity. Killing a person per see may not come
\nwithin the periphery of “moral turpitude” but subjecting a woman to cruelty
\nor killing her for, or in connection with demand of dowry, would certainly
\nbean offence involving moral turpitude. The person who was convicted
\nunder Section 295 Indian Penal Code on its own would not involve moral
\nturpitude depriving him the opportunity to serve the State unless the facts
\nand circumstances which led to the conviction met the requirements of the
\npolicy decision. In this case, a person was not convicted of an offence
\nunder Section 302 of Indian Penal Code but it was observed that killing a
\nperson itself is not sufficient to establish that such an act involves moral
\nturpitude. In Hikmat Ali Khan V. Ishwar Prasad Arya and others<\/a>,
\n1997(2) AWC 851 (SC); AIR 1007 Sc 864, where an advocate
\nassaulted the opponent with knife in Court room, was held an offence
\ninvolving moral turpitude which disqualified him from being enrolled as an
\nadvocate. In Rajendra Prasad Pandey V. High Court of Judicature<\/a> at
\nAllahabad 1998(3) AWC 2349; (1998) 3 UPLBEC 2088, where the
\npetitioner was prosecuted for an offence      derogatory to the dignity of
\nwoman was held that it was an offence involving moral turpitude. In
\nMahak Singh Vs. State of U.P. and others, 1999 (3) AWC 1858;
\n(1999) 2 UPLBEC 1336, the petitioner was removed as Pradhan of the
\nGram Panchayat under Section 195 (1) (g) of the U.P. Panchayat Raj Act,
\n1947, on one of the grounds that he was convicted of the heinous offence
\n                                              15<\/span><\/p>\n
of murder and sentenced to life imprisonment. The Court in para 13 of the
\njudgment recorded a finding that the crime of murdering the step-mother
\nwas shocking one and offence involves moral wickedness. His conviction
\nunder Section 302\/34 of Indian Penal Code involving moral turpitude was
\nsufficient enough to earn disqualification within the meaning of provision of
\nSection 5A(g) of the Act.\n<\/p>\n
      Division Bench of this court in the case of Ran Vijai Chandra Vs.
\nState of U.P. 2003(2) AWC 1385, after taking note of the judgements
\nquoted above has summed up as follows:-\n<\/p>\n
                    19.     The offence of murder is a heinous crime. It shows
\n                    deprave mentality of a man and shocks conscience of any sane
\n                    person. The society looks at such heinous crime as an act of
\n                    vileness, mental depravity and wickedness. However, there
\n                    may be mitigating circumstances which reflects that killing was
\n                    not an act of moral turpitude, e.g. (1) the person had no
\n                    intention to kill, e.g., he wanted to kill “A” but “B’ was killed by
\n                    mistake, (2) wanted only to beat but the person died under
\n                    certain circumstances, (3) there was a grave provocation and
\n                    he lost mental balance, (4) it was done in self defence, and (5)
\n                    any other circumstances from which it can be gathered that it
\n                    was not an act of mental depravity, wickedness or vileness.<\/p><\/blockquote>\n
      This Court in the case of Keshav Singh Vs. State of U.P., Civil
\nMisc. Writ Petition No. 66981 of 2009 decided on 17.03.2010 held
\nas follows:\n<\/p>\n
      “The judgment       of conviction in question has been perused, which
\n      clearly reflects that as far as petitioner is concerned, role assigned to
\n      him is that of exhortation, and this is admitted position that he had not
\n      caused any injury whatsoever to any one, and to the contrary on the
\n      record there is evidence to the effect that petitioner had also received
\n      injuries and he was also medical examined on 16.8.1999 at 3.30 p.m.
\n      In respect of injuries nos. 1 and 2, X-ray has been advised, and it was
\n      found that petitioner has received fracture injuries. It is true that
\n      petitioner has been convicted under Sections 147, 302\/149, 307\/149,
\n      but there are mitigating circumstances which reflects that killing was not
\n      at all an act of involvement of moral turpitude, inasmuch as incident in
\n      question has taken place at the house of the petitioner,                  further
\n      petitioner’s role was only that of exhortation and not causing injuries to
\n      any one and petitioner himself had received injury, in such a situation
\n      taking into account the entire circumstances of the case, murder which
\n                                            16<\/span><\/p>\n
      is in the sense aggravated form of hurt cannot be said in the facts of
\n      present case to be involving moral turpitude. In the peculiar fact of the
\n      case looking into the role of the petitioner assigned, the injuries received
\n      by the petitioner,   thus it can not be said that petitioner has been
\n      convicted for an offence involving moral turpitude.”<\/p><\/blockquote>\n
      On the parameters as set out facts of the present case are being
\nadverted to. Here it is true that petitioner has been assigned role of
\nexhortation but the judgment of conviction clearly reflects that offence was
\nnot committed as a result of provocation, rather it was cold-blooded murder,
\nwherein petitioner had caught hold the deceased and in furtherance of
\ncommon intention offence was committed. The facts of present case are
\nmatching with the facts of Dhanni Vs. State of U.P. 2010 (1) E&C pr 10
\nwherein also exhortation was there of the petitioner with others firing and
\nthe view taken was that intention is clearly indicated and it was not on
\nprovocation and as per plan commission of an offence had taken place in
\nsuch circumstances to say that the element of moral turpitude did not exist
\nis totally misconception of law. Here also it was pre-planned murder with
\nactive role of exhortation and catching hold in such a situation to say that
\noffence, wherein petitioner has been convicted, does not involve element of
\nmoral turpitude cannot be accepted.\n<\/p>\n
      In such a situation writ petition, lacks substance and is accordingly
\ndismissed.\n<\/p>\n
Dated 3rd July, 2010
\nDhruv\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Rajendra Yadav vs State Of U.P. Thru. Secretary … on 3 July, 2010 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 […]<\/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":[9,8],"tags":[],"class_list":["post-71648","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nRajendra Yadav vs State Of U.P. Thru. 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