Kuldeep Karvaria vs State of U.P. and Others

V.K. Shukla, J.—Petitioner has approached this Court, contending therein that the order dated 12.06.2009 is liable to be quashed.

Brief background of the case is that the petitioner had been elected as Pradhan. On 24.04.2009, he was convicted for life imprisonment. The District Magistrate, Banda on account of the Pradhan being confined in jail, proceeded to pass order u/s 12J of the U.P. Panchayat Raj Act, 1947 by making interim arrangement. Petitioner''s submission is that he was released on bail vide order dated 21.12.2009 passed by this Court, and after being released on bail, he moved an application before the Block Development Officer, Baberu, Banda to take charge. As no action was being taken, present writ petition has been filed.

Sri Anil Tiwari, Advocate, appearing for the petitioner, contended with vehemence that in the present case once petitioner was released on bail, then the interim arrangement ought to have come to an end, and the petitioner should have been handed over charge.

Countering the said submissions, learned standing counsel, on the other hand, contended that the petitioner had been convicted for life imprisonment on account of his complicity in criminal case involving moral turpitude, as such he is disqualified in terms of Section 5A of the U.P. Panchayat Raj Act, 1947 and he is not entitled to be reinstated as Pradhan.

Chapter-VII of U.P. Panchayat Raj Act, 1947 deals with external control and the same clothes the State Government of authority of external control alongwith the authority to pass order of removal the Pradhan, Up-Pradhan, or Member of Gram Panchayat on the ground specified in Clause (i) to (v) of Section 95(1)(g) of U.P. Panchayat Raj Act, 1947. Clause (v) mentions that removal order can be passed in the event Pradhan suffers from any disqualification as mentioned in Clause (a) to (m) of Section 5A of the Act. Clause (g) of Section 5A deals with incurring of disqualification, when one has been convicted of offence involving moral turpitude. Second proviso has been added to Section 95(1)(g) which provides that no action shall be taken under Clause (g) except after giving person concern reasonable opportunity of hearing against the action proposed.

At this juncture Section 95(1)(g) and Clause 5A of U.P. Panchayat Raj Act, 1947 are being extracted below:

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 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.

The provisions quoted above would clearly go to show and substantiate that State Government exercises external control over the Gram Panchayat and in the event of Pradhan/Up-Pradhan/Member Gram Panchayat incurring disqualification on account of terms and conditions as mentioned and various other grounds set up, all attributable to his own conduct, then State Government is free to proceed to take action against the said incumbent by directing removal from the respective office and the only obligation cast upon the State Government is to afford opportunity of hearing.

The word" moral turpitude" has not been defined under the Indian 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 v. Sarnam Singh 1964 ALJ 1118, the question as to whether a conviction u/s 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 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 Pawan Kumar Vs. State of Haryana and another, , and it was held that moral turpitude is an expression which is used in legal as also societical 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 u/s 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 u/s 302 of Indian Penal Code but it was observed that killing a person itself is not sufficient to established that such an act involves moral turpitude. In Hikmat Ali Khan v. Ishwar Prasad Arya and Ors. 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 Rajendra Prasad Pandey Vs. Allahabad High Court and another, 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 v. State of U.P. and Ors. 1999 (3) AWC 1858 : (1999) 2 UPLBEC 1336, the petitioner was removed as Pradhan of the Gram Panchayat u/s 195(1)(g) of the U.P. Panchayat Raj Act, 1947, on one of the grounds that he was convicted of the heinous offence 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 u/s 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 Vijay Chandra Vs. State of U.P. and Others, after taking note of the judgments quoted above has been summed up as follows:

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.

Merely because one is charged or accused in criminal case or one has been convicted in criminal case, will not ipso facto disqualify the said incumbent from functioning as Pradhan. The charge or conviction has to be attached with offence involving moral turpitude. As to whether such offence involves moral turpitude or not is always subject to further enquiry being carried out to find out that act of incumbent involves moral turpitude.

On the parameter as set out above, the District Magistrate on disqualification of the petitioner to function as Pradhan, has to examine as to whether the criminal case in question wherein petitioner has been convicted entails involvement of moral turpitude or not. In such a situation, the District Magistrate, Banda is directed to consider the claim of petitioner, keeping in view the provisions as contained u/s 5A and 95(1)(g) of the U.P. Panchayat Raj Act, 1947, preferably within eight weeks from the date of receipt of a certified copy of this order.

In terms of above observation, present writ petition is disposed of.