Midhai Lal vs S.D.O. and Others

R.L. Gulati, J.—The Petitioner was elected Pradhan of Gaon Sabha Qabulpur in 1972. The second Respondent, Jhao Lal, who was one of the defeated candidates, filed an election petition challenging the election of the Petitioner on the ground that the Petitioner had been convicted u/s 25 of the Arms Act within five years of the election and as such was disqualified for the office of Pradhan as provided in Section 5-A(h) of the U.P. Panchayat Raj Act. This plea has been upheld by the Sub-Divisional Officer, Bisalpur, district Pilibhit, who has set aside the election of the Petitioner and has declared the second Respondent, who had secured the second highest number of votes, as having been duly elected. The Petitioner has challenged this order in this petition under Article 226 of the Constitution.

u/s 5-A(h) of the U.P. Panchayat Raj Act a person is not qualified to hold an office in a Gaon Sabha, if he has been convicted of an offence involving moral turpitude. The Sub-Divisional Officer has held that conviction u/s 25 of the Arms Act involves ''moral turpitude''. ''Moral Turpitude'' has not been defined in the Act, but it is an expression of every day use and its meaning is well understood. Commonly understood, ''moral turpitude'' means wicked disposition, depravity, vileness, something which the society considers as base and immoral. Offences like theft, robbery, dacoity, perjury, rape, embezzlement etc. are offences which are regarded as immoral, wicked and base.

The Petitioner in the instant case was convicted because he was found in possession of a fire-arm without a licence. Now the possession of firearm is not immoral by itself. A person may want to possess a firearm for safety, self-defence and for support. These objects are not immoral and are legitimate. The possession of firearm without licence is illegal because the law in our country has provided so. A person, therefore, who possesses a firearm without a licence, no doubt, is guilty of an offence, but the offence does not involve any ''moral turpitude''.

It is true that a firearm can be used for committing offences like dacoity, robbery and murder. But it is those acts which are immoral and not the possession of firearm. In other words the misuse of a firearm may involve moral turpitude, but mere possession of firearm without a licence does not, in my opinion, involve any moral turpitude.

A Full Bench of this Court in Budha v. Sub-Divisional Officer, Malihabad 1965 ALJ 123 has held that use of prohibited colour in sweets is not an offence involving moral turpitude because under the Prevention of Food Adulteration Act the use of any colour may be prohibited by the rule making authority regardless of the fact whether it is injurious or not. So that an offence based upon violation of a rule cannot invariably be said to involve moral turpitude. The same view has been taken by this Court in two earlier decisions, namely, Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, and Mangali Vs. Chhakki Lal and Others, . The Punjab High Court following t whe view of this Court has in Risal Singh Vs. Chandgi Ram and Others, held that conviction of a person u/s 19(1) of the Indian Arms Act (possessing arms without a licence) does not involve moral turpitude. This case directly deals with the point arising in the instant case. I, therefore, hold that the Petitioner was not disqualified because of his conviction u/s 25 of the Indian Arms Act.

The second contention raised by the learned Counsel for the Petitioner is that even if the conviction u/s 25 of the Arms Act involves moral turpitude, the period of disqualification has not been specified and as such it cannot be said that the Petitioner was disqualified on the date of the election. Section 5-A(h) laying down that a person is disqualified for being nominated, if he has been convicted of an offence involving moral turpitude, is subject to the proviso that "the period of disqualification shall be five years from such date as may be prescribed". When one turns to Rule 13-A, which has been framed to carry out the provisions of Section 5-A of the Panchayat Raj Act, one finds that the rule making authority has failed to prescribe the date from which the period of five years shall commence to run. This contention is also fully borne out by the decision of the Full Bench in the case of Budha Ram v. S.D.O. Malihabad (supra) where it has been held that Rule 13-A merely prescribes the manner of removal of disqualifications but does not specify the date from which it would commence.

The last contention is that in any case it was not open to the Sub-Divisional Officer to declare the second Respondent as elected. There were three candidates including the Petitioner and the second Respondents and even if the Petitioner''s election was held to be illegal, the Sub-Divisional Officer could only order re-election and he could not declare the second Respondent as elected, because no one can say as to how the votes cast in favour of the Petitioner would have been distributed amongst other candidates. This contention is again correct. The Sub-Divisional Officer would have at best declared void the election of the Petitioner. But he could not declare the second Respondent as having been elected. In fact the second Respondent had claimed no such relief.

The petition succeeds and is allowed. The order of the Sub-Divisional Officer dated 2-3-1974 is quashed. The Petitioner is entitled to the costs.