Mohd. Irfan vs State of U.P. and Others

V.K. Shukla, J.—Petitioner had earlier approached this Court through writ petition No. 68665 of 2009 , Mohd.Irfan v. State of U.P. and Ors., and this Court had disposed of the writ petition with direction that pending application filed before the District Magistrate for recall of order dated 30.12.2009 passed u/s 12J of the U.P. Panchayat Raj Act would be decided expeditiously after hearing the parties concerned. Thereafter, as the said order had not been complied with, Contempt Application No. 481 of 2010 had been filed before this Court, whereupon this Court asked the opposite party District Magistrate to decide the matter. Thereafter, representation of the petitioner has been decided by means of order dated 18.02.2010. At this juncture, present writ petition has been filed.

On 30.03.2010 four weeks'' time was allowed to learned standing counsel for filing counter affidavit, and two weeks'' time was allowed to the petitioner for filing rejoinder affidavit, but till date no counter affidavit has been filed.

Learned Counsel for the petitioner Sri S.N. Pandey, Advocate appearing with Sri A.K. Pandey, contended with vehemence that in the present case the District Magistrate concerned had not at all considered that the criminal case No. 728 of 2009, wherein petitioner was confined in jail under Sections 366 and 368 I.P.C., therein the complainant himself had given up the case, as the petitioner had no role to play, and the statement of the girl was self explanatory. In such a situation, it cannot be said that the petitioner was involved in a case which involved moral turpitude, warranting supersession/removal of petitioner and making inrterim arrangement u/s 12J of the U.P. Panchayat Raj Act, 1947.

Countering the said submission, learned standing counsel, on the other hand, has contended that rightful view has been taken in the matter and no interference should be made.

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 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 Vijai Chandra v. State of U.P. 2003 (2) AWC 1385, 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.

In the present case on the representation moved on behalf of the petitioner action has been taken and mere mention has been made that the petitioner was an accused of an offence involving moral turpitude without considering the full facts of the case as to what was complicity of the petitioner and what role had been played by him in the said case. In such a situation, the order impugned is not approved of.

Consequently, present writ petition succeeds and the same is allowed. The order dated 18.02.2010 passed by the District Magistrate is hereby quashed, and the District Magistrate is directed to issue fresh show cause notice to the petitioner and thereafter consider his reply, which would be submitted by him in pursuance thereof, and then take appropriate action as is available under law, within eight weeks from the date of receipt of a certified copy of this order.