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2009 DIGILAW 3081 (ALL)

DHANAI v. STATE OF U. P.

2009-09-09

A.P.SAHI

body2009
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Shri Atul Srivastava, learned counsel for the petitioner and Shri Jai Prakash Singh, learned counsel for the respondent No. 7 and Shri C.P. Mishra, learned Standing Counsel appearing on behalf of the respondent Nos. 1 to 6. 2. In spite of repeated time having been granted by the Court no counter-affidavit was filed, as a result whereof, the Court had to summon the concerned officials. Today a short counter-affidavit supported with an application has been filed by Shri Arvind Kumar Singh, District Panchayat Raj Officer, Ghazipur stating therein that unqualified apology is being tendered for the delay caused in providing assistance to the Court and another short counter-affidavit has been filed by Shri Jitendra Mohan Singh, Sub-Divisional Magistrate, Jakhaniya, Ghazipur stating therein that pursuant to the interim order of this Court, the District Magistrate passed an order restraining the respondent No. 7 from functioning as Gram Pradhan. Keeping in view the allegations as contained in the writ petition, the functions of the Gram Pradhan are being carried out by a person appointed and deputed vide order dated 17.12.2007. 3. This writ petition has been filed on the ground that the respondent No. 7-Shyam Narain has been convicted in a criminal case under Section 302, I.P.C. and has been awarded a punishment of life imprisonment, and as such in view of the provisions of Section 5-A(a) of the Uttar Pradesh Panchayat Raj Act, 1947 (hereinafter referred to as ‘the Act’), the respondent No. 7 could have neither contested the election of the Gram Pradhan nor could have been elected and therefore a writ of quo warranto should be issued to prevent the respondent No. 7 to function as such as he is totally disqualified to hold any such public office. A further prayer has been made to quash the order dated 30.03.2007 passed by the Tehsildar rejecting the petitioner’s representation. 4. Notices were issued and a counter-affidavit has been filed on behalf of the respondent No. 7 as well. 5. The fact that the respondent No. 7 has been convicted in a criminal case has not been disputed. It has further been stated that the respondent No. 7 did not conceal this fact at the time when the nomination was filed. Notices were issued and a counter-affidavit has been filed on behalf of the respondent No. 7 as well. 5. The fact that the respondent No. 7 has been convicted in a criminal case has not been disputed. It has further been stated that the respondent No. 7 did not conceal this fact at the time when the nomination was filed. The further contention of the learned counsel for the respondent is that the removal of the answering respondent can be brought about only by an appropriate election petition or under a procedure prescribed in any law for the time being in force for such purpose. It has further been submitted that a criminal appeal filed against the said conviction is still pending before this Court and, therefore, the said conviction should not be taken to be a disqualification. 6. Learned Standing Counsel, on the other hand, submitted that it appears that it was on account of an erroneous calculation of the period of 5 years as provided for under Rule 3 of the Uttar Pradesh Panchayat Raj Rules, 1994. He contends that so far as the question of continuance or otherwise of the respondent No. 7 is concerned, the same has to be construed in accordance with the provisions of the Act and Rules and the authorities are equally bound by it. He contends that so far as the election of the respondent No. 7 has not been set aside under any election petition or any other proceeding provided for in law. He submits that the records have already been filed along with the writ petition and there is nothing which is required to be added on facts. He contends that the criminal appeal, which is pending before this Court, would finally decide the fate of the respondent No. 7. 7. The petitioner had earlier come up before this Court for a quo warranto in Writ Petition No. 62339 of 2006 alleging the aforesaid disqualification. The petition was disposed of on 16.11.2006 with a direction to approach the Presiding Officer who was to take a decision in the matter. The impugned order dated 30.3.2007 was passed holding that no authority could be shown to the effect that a person convicted under Section 302, I.P.C. would stand disqualified under Section 5A (g) of the Act. The petition was disposed of on 16.11.2006 with a direction to approach the Presiding Officer who was to take a decision in the matter. The impugned order dated 30.3.2007 was passed holding that no authority could be shown to the effect that a person convicted under Section 302, I.P.C. would stand disqualified under Section 5A (g) of the Act. The contention of the petitioner is that the disqualification is under Section 5A (a) of the Act and therefore the impugned order proceeds erroneously. 8. Having heard learned counsel for the parties and having perused the facts on record, it is evident that the impugned order overlooks the provisions of Section 5-A(a) of the Act. The disqualification of a person to be elected as a member of the legislative assembly is also provided for as a disqualification for being chosen as Pradhan. This would be clear upon a combined reading of Section 5-A(a) of the Act and Section 8 (3) of the Representation of the People Act, 1951 quoted below : [5-A. Disqualification of membership.—A person shall be disqualified for being chosen as, and for being, [the Pradhan or] a member of a Gram Panchayat, if he— (a) is so disqualified by or under any law for the time being in force for the purposes of elections of the State Legislature : Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; 8(3). A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.] 9. Apart from this, it is true that as held by this Court in the case of Harsukh Lal v. Sarnam Singh and others, 1964 ALJ 1118, a sentence of life imprisonment awarded upon a conviction under Section 302, I.P.C., may not necessarily involve moral turpitude if the offence was a result of provocation as distinct from a cold-blooded murder. Reference may be had to the decision in the case of Ran Vijay Chandra v. State of U.P. and others, 2003 (2) AWC 1385 . 10. Reference may be had to the decision in the case of Ran Vijay Chandra v. State of U.P. and others, 2003 (2) AWC 1385 . 10. A perusal of the said decision therefore carves out exceptions where moral turpitude can be inferred. The respondent No. 7 was a teacher and professed rivalry with the deceased. His wife contested elections of Pradhan against the wife of the respondent. The murder was committed and from a perusal of the judgment of the trial Court, it is evident that it was a well planned murder, not on provocation but by taking the deceased by surprise. The respondent No. 7 is alleged to have exhorted and the other accused fired with country made pistols. The intention therefore is indicated, not on provocation, but as a pre-planned commission of an offence. In such circumstances to say that the elements of moral turpitude did not exist is a total misconception of law. 11. Apart from this it is doubtful as to whether the Tehsildar had any authority to decide the matter. Thus on all three scores as concluded hereinabove, the order dated 30.3.2007 is unsustainable. 12. There is no doubt that the respondent No. 7 is holding a public office. He was elected as Gram Pradhan in spite of the fact that he was convicted in a criminal case and has been awarded a sentence of life imprisonment. The issue as to whether such disqualification can be computed in the given circumstances of a case such as presently involved has already been considered by this Court in the case of Amrendra Singh v. State of U.P. and others, 2005 (99) RD 746. In paragraphs 12 and 13 of the said judgment it has been held that since an accused/convict had not undergone the sentence of imprisonment therefore the computation of 5 years does not commence until and unless he serves out the sentence. The contention advanced on behalf of the respondent No. 7 is that an appeal has been filed. The aforesaid issue has also been answered in the aforesaid decision in paragraph 11, which is quoted below : “11. Thus the mere fact that an appeal has been filed by the petitioner against his conviction which has been admitted and he has been released on bail, does not wipe out the disqualification which has been attached on the strength of conviction dated 13.6.1977. Thus the mere fact that an appeal has been filed by the petitioner against his conviction which has been admitted and he has been released on bail, does not wipe out the disqualification which has been attached on the strength of conviction dated 13.6.1977. The submission of the petitioner that the conviction has not yet started since the petitioner is on bail has also to be repelled in view of the clear pronouncement of the Apex Court as quoted above. The mere fact that the petitioner has not yet served his sentence he cannot be heard in saying that he is not disqualified.” 13. It has been held that mere filing of an appeal would not take away the disqualification incurred by the petitioner by virtue of his conviction. The aforesaid decision has taken notice of the decision in the case of K. Prabhakaran v. P. Jayarajan, in which it has been held that once the conviction has been pronounced and the sentence awarded, then the disqualification is attached in view of the provisions, which are presently in consideration. Section 5-A of the Act 1947 clearly entails that a person shall be disqualified for being chosen in the event he is convicted. In the instant case, it is an admitted position that the conviction has been pronounced and sentence awarded. 14. The said issue has been answered by the Apex Court in the case of B.R. Kapur v. State of T. N. and another, 2001 (7) SCC 231 , paragraphs 34 and 40 as follows : “34. It is true that the order of the High Court at Madras on the application of the second respondent states: “Pending criminal appeals the sentence of imprisonment alone is suspended and the petitioners shall be released on bail …..”, but this has to be read in the context of Section 389 under which the power was exercised. Under Section 389 an appellate Court may order that “the execution of the sentence or order appealed against be suspended ….:. It is not within the power of the appellate Court to suspend the sentence; it can only suspend the execution of the sentence pending the disposal of appeal. Under Section 389 an appellate Court may order that “the execution of the sentence or order appealed against be suspended ….:. It is not within the power of the appellate Court to suspend the sentence; it can only suspend the execution of the sentence pending the disposal of appeal. The suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of a grave offence and has attracted the sentence of imprisonment of not less than two years. The suspension of the execution of the sentences, therefore, does not remove the disqualification against the second respondent. The suspension of the sentence, as the Madras High Court erroneously called it, was in fact only the suspension of the execution of the sentences pending the disposal of the appeals filed by the second respondent. The fact that she secured the suspension of the execution of the sentences against her did not alter or affect the convictions and the sentences imposed on her and she remained disqualified from seeking legislative office under Section 8(3). 40. In much the same vein, it was submitted that the presumption of innocence continued until the final judgment affirming the conviction and sentence was passed and, therefore, no disqualification operated as of now against the second respondent. Before we advert to the four judgments relied upon in support of this submission, let us clear the air. When a lower Court convicts an accused and sentences him, the presumption that the accused is innocent comes to an end. The conviction operates that the accused has to undergo the sentence. The execution of the sentence can be stayed by an appellate Court and the accused released on bail. In many cases, the accused is released on bail so that the appeal is not rendered infructuous, at least in part, because the accused has already undergone imprisonment. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that is not to say that the presumption of innocence continues after the conviction by the trial Court. If the appeal of the accused succeeds the conviction is wiped out as cleanly as if it had never existed and the sentence is set aside. A successful appeal means that the stigma of the offence is altogether erased. But that is not to say that the presumption of innocence continues after the conviction by the trial Court. That conviction and the sentence it carries operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well.” 15. The next issue, which has been raised is as to whether a writ petition under Article 226 of the Constitution of India praying for prohibiting or recalling a person who is holding a public office can be a issue or not. The aforesaid issue came up for consideration before the Apex Court in the case of K. Venkatachalam v. Swamichan and another, AIR 1999 SC 1723 . In which the Supreme Court ruled as follows : “26. The question that arises for consideration is if in such circumstances High Court cannot exercise its jurisdiction under Article 226 of the Constitution declaring that the appellant is not qualified to be member of the Tamil Nadu Legislative Assembly from Lalgudi Assembly Constituency. On the finding recorded by the High Court it is clear that the appellant in his nomination from impersonated a person known as Venkatachalam s/o Pethu, taking advantage of the fact that such person bears his first name. Appellant would be even criminally liable as he filed his nomination on affidavit impersonating himself. If in such circumstances he is allowed to continue to sit and vote in the Assembly his action would be fraud to the Constitution. 27. In view of the judgment of this Court in the case of Election Commission of India v. Saka Venkata Rao, AIR 1953 SC 210 , it may be that action under Article 192 could not be taken as the disqualification which the appellant incurred was prior to his election. Various decisions of this Court which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above do not appear to apply to the case of the appellant now before us. Various decisions of this Court which have been referred to by the appellant that jurisdiction of the High Court under Article 226 is barred challenging the election of a returned candidate and which we have noted above do not appear to apply to the case of the appellant now before us. Article 226 of the Constitution is couched in widest possible term and unless there is clear bar to jurisdiction of the High Court its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provision of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Act for the appropriate relief. In circumstances like the present one bar of Article 329(b) will not come into play when cause falls under Articles 191 and 193 and whole of the election process is over. Consider the case where the person elected is not a citizen of India. Would the Court allow a foreign citizen to sit and vote in the Legislative Assembly and not exercise jurisdiction under Article 226 of the Constitution? 28. We are, therefore, of the view that the High Court rightly exercised its jurisdiction in entertaining the writ petition under Article 226 of the Constitution and declared that the appellant was not entitled to sit in Tamil Nadu Legislative Assembly with consequent restraining order on him from functioning as a member of the Legislative Assembly. The net effect is that the appellant ceases to be a member of the Tamil Nadu Legislative Assembly. Period of the Legislative Assembly is long since over. Otherwise we would have directed respondent No. 2, who is Secretary to Tamil Nadu Legislative Assembly, to intimate to Election Commission that Lalgudi Assembly Constituency seat has fallen vacant and for the Election Commission to take necessary steps to hold fresh election from that Assembly Constituency. Normally in a case like the Election Commission should invariably be made a party.” 16. A perusal of the aforesaid decision leaves no room for doubt that the Article 226 of the Constitution of India would be clearly maintainable even if there was a provision for filing of an election petition. 17. Such an issue also came before the Apex Court in B.R. Kapur’s case (supra) which involved the continuance of the then Chief Minister of Tamil Nadu Ms. 17. Such an issue also came before the Apex Court in B.R. Kapur’s case (supra) which involved the continuance of the then Chief Minister of Tamil Nadu Ms. J. Jayalalitha upon being convicted in the case under the Prevention of Corruption Act, 1988. A writ of quo warranto was prayed for as she had been sworn in as Chief Minister. The contention was that she was ineligible for being elected to the legislative assembly having earned a conviction as such she could not continue as Chief Minister. The Apex Court in para 45 of the said decision ruled as under : “45. Our conclusion, therefore, is that on the date on which the second respondent was sworn is as Chief Minister she was disqualified, by reason of her convictions under the Prevention of Corruption Act and the sentences of imprisonment of not less than two years, for becoming a member of the Legislature under Section 8(3) of the Representation of the People Act.” 18. After having recorded the said finding the Apex Court also ruled that in such an event the Court is obliged to intervene through a writ of quo warranto. Reference be had to paras 51 to 55 quoted below : “51. If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is not qualified to be a member of the Legislature or who is disqualified to be such, the appointment is contrary to the provisions of Article 164 of the Constitution, as we have interpreted it, and the authority of the appointee to hold the appointment can be challenged in quo warranto proceedings. That the Governor has made the appointment does not give the appointee any higher right to hold the appointment. If the appointment is contrary to constitutional provisions it will be struck down. The submission to the contrary-unsupported by any authority must be rejected. 52. The judgment of this Court in Kumar Padma Prasad v. Union of India is a case in point. One K.N. Srivastava was appointed a Judge of the Gauhati High Court by a warrant of appointment signed by the President of India. Before the oath of office could be administered to him, quo warranto proceedings were taken against him in that High Court. An interim order was passed directing that the warrant of appointment should not be given effect to until further orders. Before the oath of office could be administered to him, quo warranto proceedings were taken against him in that High Court. An interim order was passed directing that the warrant of appointment should not be given effect to until further orders. A transfer petition was then filed in this Court and was allowed. This Court, on examination of the record and the material that it allowed to be placed before it, held that Srivastava was not qualified to be appointed a High Court Judge and his appointment was quashed. This case goes to show that even when the President, or the Governor, has appointed a person to a constitutional office, the qualification of that person to hold that office can be examined in quo warranto proceedings and the appointment can be quashed. 53. It was submitted that we should not enter a political thicket by answering the question before us. The question before us relates to the interpretation of the Constitution. It is the duty of this Court to interpret the Constitution. It must perform that duty regardless of the fact that the answer to the question would have a political effect. In State of Rajasthan v. Union of India it was said by Bhagwati, J. : (SCC pp. 660-61, para 149) “But merely because a question has a political complexion, that by itself is no ground why the Court should shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. Every constitutional question concerns the allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political ….. So long as a question arises whether an authority under the Constitution has acted within the limits of its power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do so. It is necessary to assert the clearest possible terms, particularly in the context of recent history, that the Constitution is suprema lex, the paramount law of the land, and there is no department or branch of Government above or beyond it.” 54. We are satisfied that in the appointment of the second respondent as the Chief Minister there has been a clear infringement of a constitutional provision and that a writ of quo warranto must issue. 55. We are satisfied that in the appointment of the second respondent as the Chief Minister there has been a clear infringement of a constitutional provision and that a writ of quo warranto must issue. 55. We are not impressed by the submissions that the writ petitions for quo warranto filed in this Court are outside our jurisdiction because no breach of fundamental rights has been pleaded therein; that the appeal against the decision of the Madras High Court in the writ petition for similar relief filed before it was correctly rejected because the same issue was pending here; and that the transferred writ petition for similar relief should, in the light of the dismissal of the writ petitions filed in this Court, be sent back to the High Court for being heard. Breach of Article 14 is averred in at least the lead writ petition filed in this Court [WP (C) No. 242 of 2001]. The writ petition which was dismissed by the High Court and against which order an appeal is pending in this Court was filed under Article 226, as was the transferred writ petition. This Court, therefore, has jurisdiction to issue a writ of quo warranto. We propose to pass the order in the lead writ petition, and dispose of the other writ petitions, the appeal and the transferred writ petition in the light thereof.” 19. In the instant case, there being no doubt about the admitted position of disqualification having been incurred by the respondent No. 7, there is no occasion for this Court to dismiss the writ petition on the ground of availability of any other alternative remedy. Apart from this, it is evident that the respondent No. 7 had been restrained by this Court by an interim order commanding the opposite parties not to allow the said respondent to function as Gram Pradhan. It is to be noted that the order was passed by this Court on 25th July, 2007 whereas the District Magistrate took 5 months to pass a consequential order. The aforesaid situation is absolutely unfortunate, inasmuch as, the authorities are required to obey the orders forthwith without any hesitation. It is not understood as to why the District Magistrate took 5 months to obey the command of this Court. 20. The aforesaid situation is absolutely unfortunate, inasmuch as, the authorities are required to obey the orders forthwith without any hesitation. It is not understood as to why the District Magistrate took 5 months to obey the command of this Court. 20. In view of the aforesaid conclusion drawn and in view of the fact that the respondent No. 7 admittedly suffers from an inherent disqualification as provided under Section 5-A, a declaration is hereby issued that the election of the respondent No. 7 as Gram Pradhan was illegal and invalid and he shall not be construed to hold the public office of Gram Pradhan of Gram Panchayat Muriari, District Ghazipur forthwith as it stands accordingly annulled. The impugned order dated 30.03.2007 is also quashed. 21. The writ petition is allowed with the directions aforesaid with no order as to costs. ———