Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 577 (CAL)

Md. Ibrahim Sk. v. State of West Bengal

2002-08-29

AMITAVA LALA

body2002
JUDGMENT The petitioner is an elected member of a Gram Panchayat. He was elected as a Pradhan of such Gram Panchayat in 1998. A complaint was lodged by one Allauddin Molla against him and other persons for causing purported murder of a third party. On the basis of such complaint a criminal case was started being P.S. Case No. 48/2001 on 10th December, 2001 under Sections 302/34 of the Indian Penal Code read with Sections 25/27 of the Arms Act. The petitioner was arrested and released on bail after ninety days. 2. The prescribed authority under the West Bengal Panchayat Act, initiated a proceeding against the petitioner under Section 213B (iii). Ultimately, the petitioner was put under suspension. The petitioner came to know of the order of suspension only on 7th June, 2002 when he formally received a communication from the office of the concerned Block Development Officer. However, even after due communication, the Block Development Officer did not advise the petitioner to hand over the charge to the Upa-Pradhan of the Gram Panchayat. The petitioner is now holding the charge of the Pradhan. 3. According to the petitioner, the prescribed authority wrongly held that the petitioner was in custody for more than 48 hours, as such, he will be suspended for violation of the Section 213B(iii) of the West Bengal Panchayat Act. This section does not empower the prescribed authority to suspend the Pradhan without having any order of conviction by the appropriate Court of Law or without proceeding commenced against him on a criminal charge referred in Clause (h) of Section 8 of the Act. Since neither any conviction order is passed nor any charge has been framed as against the petitioner, the order of suspension is completely bad in law. Therefore, such order should be set aside forthwith. 4. It appears from Section 213B that a prescribed authority under the Act may, after giving an office bearer or member of such Panchayat an opportunity of show-cause against such action, as may be proposed to be taken against him, place such office hearer or member under suspension, if he has, prima facie, been found to be guilty of criminal breach of trust or criminal negligence etc., amongst others. It can also be done if there is an inspection held by a competent authority, and has been found guilty of criminal breach of trust etc. It can also be done if there is an inspection held by a competent authority, and has been found guilty of criminal breach of trust etc. Such power can also be used when such authority is of the prima facie view that the person concerned is implicated in a proceeding commenced against him on a criminal charge referred to in Clause (h) of Section 8, Section 97 and Section 142 etc., and the person concerned was detained in a custody for more than 48 hours. 5. I find from the factual aspect of the matter that the petitioner was called on for hearing. Prima facie case of criminal activities is apparent. He was detained in a custody for 90 days which is much more than the period of 48 hours. Clause (h) of Section 8 is as follows: “(h) (i) he has been convicted by a Court – (A) of an offence involving moral turpitude punishable with imprisonment for a period of more than six months, or (B) of an office under Chapter IXA of the Indian Penal Code (45 of 1860), or (C) under Section 3 or Section 9 of the West Bengal Local Bodies (Electoral Offences and Miscellaneous Provisions) Act, 1952 (West Bengal Act X of 1952) and five years have not elapsed from the date of the expiration of the sentence; or (ii) he is disqualified for the purpose of elections to the State Legislature under the provisions of Chapter III of Part II of the Representation of the People Act, 1951 (43 of 1951); or” 6. This part of the section has been substituted by way of an amendment with effect from 8th August, 1987. 7. Previously, the section was as follows : “(h) he has been convicted by a Court of an offence involving moral turpitude punishable with imprisonment for a period of more than six months of an offence under Chapter IXA of the Indian Penal Code or Section 3 or Section 9 of the West Bengal Local Bodies (Electoral Offences and Miscellaneous Provisions) Act, 1952 or Chapter III of Part VII of the Representation of the People Act, 1951, and five years have not elapsed from the date of the expiration of the sentence; or”. 8. 8. With an utter surprise I find that there is no change of any language but three parts of the sub-clauses have been segregated into sub-clauses (i) (A), (B) and (C). Obviously, there is a. reason. The interpretation of statute says that a statute is to be read as a whole to know its proper import. Therefore, when under the previous Act the word ‘or’ appears to be connected with the three parts, there must have been an ample opportunity of having confusion in respect of its proper implementation. Obviously, it could pass through mind whether the Clause will be read conjunctively or disconjunctively. But when it has been segregated by way of making the distinct features even having ‘or’, it is crystal clear that the intention of the legislature is to speak that all the three parts are distinct and different from each other and if one is hit by any of the parts under sub-clause (i), will be good enough for drawing a prima facie case as against the person. According to me, the parts (B) and (C) are not relevant for the purpose of deciding the issue herein. Offence involving ‘moral turpitude’ under part (A) of sub-clause (i) is relevant. 9. According to the learned Counsel, appearing for the petitioner, offence, if any, coming under Sections 302/34 of the Indian Penal Code read with Sections 25/27 of the Arms Act cannot come within the four corners of the concept ‘moral turpitude’. He cited a Single Bench judgment of Allahabad High Court which is reported in AIR 1963 ALL 527 (Mangali v. Chhakki Lal & Others) to give an exact meaning of the question of ‘moral turpitude’. Learned Counsel said that no absolute standard can be laid down for deciding whether a particular offence is to be considered as ‘moral turpitude’. The question will necessarily be decided on the circumstances in which the offence is committed. Every punishment of offence cannot be said to be for lapse of ‘moral turpitude’. From a consideration of the dictionarical meaning of the words ‘moral’ and ‘turpitude’ as well as the ratio decidendi of the cases, the principle emerges that whether an offence involves ‘moral turpitude’ or not will necessarily depend on the circumstances in which the offence is committed. Every punishment of offence cannot be said to be for lapse of ‘moral turpitude’. From a consideration of the dictionarical meaning of the words ‘moral’ and ‘turpitude’ as well as the ratio decidendi of the cases, the principle emerges that whether an offence involves ‘moral turpitude’ or not will necessarily depend on the circumstances in which the offence is committed. The tests which should ordinarily be applied for judging whether an offence does or does not involve ‘moral turpitude’ are as follows:– (1) whether the act leading to a conviction could shock the moral conscience of a society in general; (2) whether the notice which led to the act was a base one; and (3) whether on account of the act having been committed the perpetrator could be considered to be a depraved character or a person who was to be looked down by the society. 10. Learned Counsel, appearing for the State, has not objected to the laying down of the principle but according to her the act of the Pradhan definitely continued to be an act of ‘moral turpitude’. 11. The meaning of ‘moral turpitude’ appears in the Black's Law Dictionary as follows :– “Anything done contrary to justice, honesty, modesty or good morals, commonly defined as an Act of baseness, vileness or depravity in the private and social duties which a man owes to his fellows man or to society in general, contrary to the accepted and customary rule of right and duty between man and man. Although vague term, if implies something immoral in itself, regardless of its being punishable by law. It is also said to be restricted to the gravest offences, consisting of felonies, infamous crimes and those the are “malum in se” and disclose a depraved mind”. 12. To ascertain the meaning of ‘Moral Turpitude’ the meaning of the phrase “Malum in se” and the word “Depraved mind” is also necessary. According to Black's Law Dictionary the meaning of the phrase “Malum in se” and the word “Depraved mind” are as follows :– (i) “Malum in se”– A wrong in itself. An act is said to be “malum in se” when it is inherently and essentially evil, that is, immoral in its nature and injurious in its consequences, without any regard to the fact of its being noticed or punished by the Law of the State. An act is said to be “malum in se” when it is inherently and essentially evil, that is, immoral in its nature and injurious in its consequences, without any regard to the fact of its being noticed or punished by the Law of the State. Such are most or all of the offences cognizable at Common Law (without the denouncement of a statute), as murder, larceny etc. (Page 365 B.L.D.) (ii) “Depraved mind”– an inherent deficiency of moral sence and rectitude, equivalent to statutory phrases “Depravity of heart” defined as highest grade of malice. A corrupt or perverted mind. As required for conviction of second degree murder, is one which is indifferent to the life of others. (page 396 : B.L.D).” 13. Learned Counsel appearing for the State cited two judgments to establish his case. Judgments are reported in 1996 (4) SCC 17 (Pawan Kumar v. State of Haryana & Anr.) and 1988 Mh. L.J. 768. (Pandurang Hari Kulkarni & Ors. v. Manohar Gopal Vadalkar & Anr.) From the first judgment it appears that the Supreme Court said “moral turpitude” is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. In the second judgment, the Division Bench of the Bombay High Court held that the term ‘moral turpitude’ is rather vague one and it may have different meanings in different contents. The term has generally been taken to mean to be a conduct contrary to justice, honesty, modesty, or good morals and contrary to what a man owes to fellow man or to society in general. Every act punishable in law would not amount to an offence involving moral turpitude. However, in order to come within the ambit of said phrase, there must be element of baseness and depravity in the act alleged. The act must be vile or harmful to society in general or contrary to accepted rules or rights and duties between man and man. It cannot be forgotten that some times a person may be technically guilty without any intention on his part. Three tests are laid down as follows :– “1) Whether the act leading to a conviction was such as could shock the moral conscience of society in general. It cannot be forgotten that some times a person may be technically guilty without any intention on his part. Three tests are laid down as follows :– “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 perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society.” 14. Learned Counsel appearing for the petitioner contended before this Court that in the instant case that no order of conviction has yet been passed. Only allegations have been made as against the petitioner. Therefore, an inference has to be drawn that the act having been committed is to be considered to be of a depraved character. The petitioner is a member of the Panchayat, elected by the votes of the local people who is working for the last five years and elected as Pradhan cannot be held to be guilty in such manner. Court should be slow before taking any decision. It is not a case of an employee. If it is a case of an employee, after acquittal, he may be compensated by reinstatement but in this type of cases, there is no such scope. If the suspension continues, the term of membership of Pradhan may expire and the people will lose their chance from having service of such a person. The ‘moral turpitude’ is a judicial pronouncement. Therefore, unless and until a person is convicted by any judicial pronouncement, nobody can say such an offence will come within the purview of ‘moral turpitude’. 15. According to me, the words ‘moral turpitude’ has its own connotation. The simplest meaning of the same is that the minor offences can be ignored but major offences should not be ruled out without verifying the tests, as above, in the garb of not having been applicable under the four corners of ‘moral turpitude’, The ‘moral turpitude’ is flowing from the word ‘morality’. When MORALE of a person comes down, he or she commits immoral act. Such immoral act cause harm to other. When MORALE of a person comes down, he or she commits immoral act. Such immoral act cause harm to other. Therefore, if any person, having been kept in the custody for 90 days on the charge of murder and when I see such person is the Pradhan of the Panchayat, conscience of the Court definitely shocks. Therefore, taking prima facie view by an authority in such circumstances to suspend the Pradhan cannot be said to be an illegal act on its part. 16. It is true to say that a political rivalry may be an outcome of the same. But prima facie view has to be taken on prima facie value. There the desire of the Court is to give an expeditious hearing of the criminal matter and hearing of the proceeding pending before the Authority. Therefore, this Court requests the concerned Court having criminal jurisdiction to expedite the matter at the earliest. But till such time, the Pradhan cannot be allowed to continue as Pradhan. If any order has not been communicated, the same should be communicated at the earliest, and to give respect, in all fairness, the Pradhan should hand-over the charge to the Upa-Pradhan or the person concerned. The argument that unlike an employee the order of suspension can be a political destruction, cannot be an acceptable logic by this Court. If the petitioner having been acquitted within the tenure, he will get back the post on the basis of the observation of this Court and if the tenure is complete, he will fight back politically to achieve the goal. Even he can be able to proceed against the person (s) concerned for malicious prosecution. But when there is a scope under the law that ‘moral turpitude’ can be taken as prima facie view, such prima facie view do exist in the eye of law. 17. Under these circumstances, I have no other alternative but to dismiss the writ petition. Therefore, the writ petition is dismissed. However, there is no order as to costs. 18. Parties are permitted to take down the gist of the order and communicate the same to the authority concerned who will act upon such communication. Let an urgent xeroxed certified copy of this judgment, if applied for, be given to the Learned Advocates for the parties within two weeks from the date of putting the requisites.