Aijaz Ahmad vs Niyaz Ahmad Khan and Another

K.N. Singh, J.—Aijaz Ahmad Petitioner was elected Pradhan of Gaon Sabha Para Kamal in district Jaunpur. Niyaz Khan, opposite party No. 1, an unsuccessful candidate filed an application u/s 12-C of the U.P. Panchayat Raj Act challenging the Petitioner''s election on a number of grounds. One of the grounds alleged that the Petitioner had been convicted for an offence u/s 3/8 of the Prevention of Cow Slaughter Act, 1955, and as such he was disqualified to be nominated or elected or to hold office of Pradhan, as such his nomination paper had been improperly accepted by the Returning Officer. The Petitioner contested the proceedings. Thirteen different issues were framed by the Sub-Divisional Officer but he disposed of the election petition on his findings on issues No. 1 and 2. Issue No. 1 was to the effect as to whether the Petitioner''s nomination paper was improperly accepted while issue No. 2 was to the effect as to whether the Petitioner was disqualified from holding the office of Pradhan in view of his conviction u/s 3/8 of the U.P. Prevention of Cow Slaughter Act, 1955. The Sub-Divisional Officer recorded a finding that the Petitioner, was convicted for an offence which involved moral turpitude and as such he was disqualified u/s 5-A of the U.P. Panchayat Raj Act to hold the office of Pradhan. He further held that the Returning Officer improperly accepted the Petitioner''s nomination paper. On these findings he set aside the Petitioner''s election and declared a casual vacancy in the office of Pradhan. Aggrieved, the Petitioner filed the present petition under Article 226 of the Constitution for quashing the order of the Sub-Divisional Officer dated 16th October, 1974, setting aside the Petitioner''s election.

It is not disputed between the parties that the Petitioner was convicted u/s 3/8 of the U.P Prevention of Cow Slaughter Act, 1955, by a criminal court. On appeal the Sessions Judge reduced the sentence. On revision the High Court by its order dated 10th July, 1968, further reduced the sentence and the Petitioner was inflicted with a fine of Rs. 50/- only. Since the Petitioner''s conviction was upheld the Petitioner paid the fine of Rs. 50/- on 7th August, 1958. The question then arises as to whether the Petitioners'' conviction u/s 3/8 of the U.P. Prevention of Cow Slaughter Act amounts to his conviction for an offence involving moral turpitude. The expression "moral turpitude" has not been defined either in the Panchayat Raj Act or in any other Act. The phrase "moral turpitude" is defined in Bouviers'' Law Dictionary as follows:

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.

In Murray''s Dictionary the word "turpitude" means:

Base or shameful character; baseness, vileness, depravity, wickedness.

The meanings given to the phrase "moral turpitude" indicate wickedness or debasement of character of a person, that element is a necessary ingredient of an offence to constitute moral turpitude. In Mangali Vs. Chhakki Lal and Others, A.P. Srivastava, J. held:

The test which should ordinarily be applied for judging whether a certain offence does or does not involve moral turpitude appear to be (1) whether the act leading to a conviction was such as could shock the moral conscience of society in general, (2) whether the motive which led to the act was a base one and (3) whether on account of the act having been committed the propetration could be considered to be of a depraved character or a person who was to be looked down upon by the Society.

In Buddha Pitai Vs. Sub-Divisional Officer Malihabad and Others, , a Full Bench considered the question as to what offence involve moral turpitude. The Full Bench was of the opinion that any act constituting an offence which is contrary to honesty or good morals or is an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or society in general should be deemed to be an offence involving moral turpitude. It depends on the nature and circumstances in which the offence is committed. The Full Bench emphasised that it is not the quantum of punishment or gravity of the act which is relevant for determining this question. It must be the ingredients of the offence prescribed by the statutory provision which involve moral turpitude. The above authorities make it amply clear that the ingredients of the offence must be examined to determine the question as to whether the offence for which the Petitioner was convicted involved moral turpitude.

The U.P. Prevention of Cow Slaughter Act, 1955 (No. 1 of 1956) was enacted to prohibit and prevent the slaughter of cows and its progeny in the State. The statement of Objects and Reasons as published in the U.P. Gazette extraodinary dated March 30, 1955, indicate that the State-Legislature considered it necessary to organise agricultural and animal husbandry on modern scientific lines and prohibit slaughter of cows and its progeny. The legisslature was of the opinion that the cow and its progeny must be saved with a view to provide milk and manure and for the purpose it enacted the Act imposing a ban on cow slaughter. Section 3 of the Act lays down that except as provided Jin the Act no person shall slaughter or cause to be slaughtered a cow or bull or bullock unless he has obtained in respect thereof a certificate in writing from the competent authority of the area in which the bull or bullock is to be slaughtered certifying that it is fit for slaughter Section 8 prescribes penalty for contravention of the provisions of Section 3 which prescribes maximum punishment of rigorous imprisonment which may extend to two years and a fine of Rs. 1000/- or both. Section 3 of the 1955 Act no doubt imposes a ban on cow slaughter but Section 4 permits cow slaughter in certain contingencies. For example if the cow is subject to experimentation in the interest of medical and public health research it is permissible to slaughter the cow after complying with the procedure prescribed therein. The ingredients of the offence as contained in Sections 3 and 8 do not show that the commission of the offence indicates any vileness, baseness or depravity of character. No doubt if a person commits cow slaughter he contravenes law for which he is liable to be punished but the conviction by itself does not involve moral turpitude. As already observed by the Full Bench the ingredients of the offence must be looked into. There is nothing either in Section 3 or Section 8 that a person who commits cow slaughter is a depraved person. No doubt a certain section of our society worships cow and in their opinion slaughter of cow is a great sin, but the legislature inacted the 1955 Act for preserving the cow progeny for the purpose of manure and animal husbandry and not with the object of safeguarding or protecting the religious belief of a section of the society. Every commission of offence cannot involve moral turpitude unless the offence itself is of such a nature which exhibits depravity of character of the accused. As mentioned above I do not find any depravity of character in the conviction of an offence u/s 3/8 of the Prevention of Cow Slaughter Act. The Sub-Divisional Officer wrongly held that the Petitioner had been convicted for an offence involving moral turpitude and that he was disqualified to be nominated to the office of Pradhan.

Learned Counsel for the Petitioner urged that the proviso to Section 5-A of the U.P. Panchayat Raj Act lays down that the period of disqualification under Clause (h) shall be five years from the date to be prescribed. u/s 2(p) "prescribed" means prescribed under the Rules. Rule 13 prescribes that the period of five years shall commence from the date of payment of fine. It is urged that Rule 13 is absurd and the rule framing authority has omitted to prescribe a date with "the result the provision of Clause (h) cannot be taken into consideration against the Petitioner. The Petitioner''s contention is fully supported by the law laid down in Budha Pitai''s case. The Full Bench examined the matter at length and thereafter it held that since no date has been prescribed as contemplated by the first proviso to Section 5-A of the U.P. Panchayat Raj Act, the disqualification under Clause (h) of Section 5-A does not come into operation. For this reason also the order of the Sub Divisional Officer is liable to be quashed.

Learned Counsel for the Respondent has contended that during the pendency of the present petition fresh elections have taken place and the office of Pradhan has been filled. Learned Counsel for the Petitioner concedes that the election has taken place and some person other than the Petitioner has been elected and the office of Pradhan of the Gaon Sabha is not vacant at present. The question then arises whether the Petitioner is entitled to be reinstated to his office. After the Petitioner''s election was set aside and a casual vacancy was declared the authorities were competent to hold the election to fill the vacancy so caused. The Petitioner failed to obtain interim order from this Court with the result election was held and some other person has been elected to the office of Pradhan. The office of Pradhan is not vacant, instead it is occupied by another person, who is not a party to this petition. Since the Petitioners election was wrongly set aside by the Sub-Divisional Officer, there was no vacancy in the office of Pradhan and for that reason the election is vitiated but since the newly elected Pradhan is not a party to the petition his election cannot be set aside in the present proceedings. In the circumstances no mandamus can be issued against the person who is holding the office of Pradhan at present See Sohanlal Vs. The Union of India (UOI), . The Petitioner may if so advised challenge the election of the Pradhan in accordance with law. So far as the present proceedings are concerned, the Petitioner cannot be reinstated to that office by this Court.

In the result the petition is allowed and the order of the Sub-Divisional Officer is quashed. There will be no order as to costs.