Heard learned counsel for the parties.
Counter affidavit filed on behalf of opposite party no.6 is taken on record. As the counsel for the petitioner says that there being no denial of the factum of conviction of the opposite party no.6 under Sections 323 and 354 IPC there is no need for filing rejoinder affidavit as the other contentions in the counter affidavit are argumentative in nature which shall be met during the course of arguments.
This is a writ petition under Article 226 of the Constitution of India seeking a writ of quo-warranto against the opposite party no.6 on the ground that the opposite party no.6, after being elected as Gram Pradhan of Gram Panchayat Sidahir, Block Masaudha, Tehsil Sohawal, District Faizabad, has been convicted by a Court of criminal jurisdiction in Sessions Trial No.50 of 2015 (Crime Case No.436 of 2014) under Sections 323,506,354,376 IPC vide judgment of the Additional District Judge/F.T.C. I, Faizabad dated 01.06.2018 and has been sentenced to one year imprisonment with fine of Rsnor of Deputy Director, Conslidation Court.1000/-(one thousand) under Section 323 IPC; sentence of two years imprisonment with fine of Rs.10,000/-(ten thousand) under Section 354 IPC as also a sentence of one year with fine of Rs.5000/-(five thousand) under Section 506 IPC; and on failing to deposit the fine further sentence has been ordered to be undergone as mentioned in the judgment.
Though, the relief clause is not happily worded, but, considering the facts and circumstances of the case and the issues involved, technicalities in this regard are brushed-aside as this Court under Article 226 of the Constitution of India has ample penal power to do complete substantial justice between the parties and to mould the relief to achieve this end.
It is not in dispute that the opposite party no.6 was elected as Gram Pradhan of village Sidahir in the year 2015. On a bare perusal of the Counter affidavit the Court finds that he has also not disputed the fact rather he has admitted it that he has been convicted under Section 323, 354 and 506 IPC vide judgment dated 01.06.2018 and sentenced to undergo imprisonment as already mentioned hereinabove. A copy of the aforesaid judgment is already annexed with the writ petition.
The counter affidavit of opposite party no.6 reveals that an Appeal bearing 963 of 2018 has been filed against the said judgment which is pending before Allahabad High Court, at Lucknow and vide order dated 11.06.2018 the petitioner has been enlarged on bail. The sentence and/or the conviction of the opposite party no.6 has not been stayed by this Court in the said appeal.
The case of the petitioner herein is that the disqualification prescribed under Section 5-A clause (a) and (g) of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as ''the Act, 1947') and Section 5-A(a) read with sub section 3 of Section 8 of the Representation of People's Act, 1951(hereinafter referred to as ''the Act, 1951') has been incurred by the opposite party no.6 on 01.06.2018 i.e. subsequent to his election, when he was convicted for the offence under Section 354 involving moral turpitude and a sentence of two years was imposed, therefore, there is no question of availing the remedy of election petition which in fact is not even the objection of the opposite party no.6 herein.
Section 5-A(a) and (g) of the Act, 1947 read as under:-
"5-A(a). Disqualifications for 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 election to 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;
(b) ...... ..... .....
(c) ..... ..... .....
(d) .... .... .....
(e) ..... ..... .....
(f) .... ..... .....
(g) has been convicted of an offence involving moral turpitude;"
Considering the admitted and undisputed facts of the case not much of an inquiry is required to be held as to the disqualification alleged to have been incurred by opposite party no.6. All that is required is to see as to whether the conviction of opposite party no.6 under Section 323, 354 and 506 IPC as also the sentence imposed upon him gives rise to a disqualification which impedes his continuance as Gram Pradhan in the eyes of law or not.
A reading of Section 5-A makes it clear that a person shall be disqualified for being chosen as, and for being, the Pradhan or a member of Gram Panchayat if he incurs disqualification mentioned therein. The words "for being" occuring in Section 5-A refer to and mean a ''State of existence', an existing factor. Now clause (a) of Section 5-A says that he would incur such disqualification, if, he is so disqualified by or any order in law for the time being in force for the purposes of election to the State Legislature. The proviso to the said provision is not attracted herein. Chapter III of the Act, 1951 deals with the disqualification for the the membership of Parliament, State Legislature. Section 8 deals with disqualification on conviction for such offences. Sub section 3 of Section 8 of the Act, 1951 reads as under:-
"8(3). Disqualification on conviction for certain offences.--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-sub-section (2)] shall be disqualified form the date of such conviction and shall continue to be disqualified for a further period of six years since his released"
In the present case the opposite party no.6 has been convicted and sentenced to undergo imprisonment for two years for the offence under Section 354 IPC, therefore, sub section 3 of Section 8, when read conjointly with clause (a) of Section 5-A of the Act, 1947, is clearly attracted in the undisputed facts of the present case. Further more, under clause (b) of Section 5-A a person shall be disqualified for being chosen as, and for being, the Pradhan of a Gram Panchayat, if he has been convicted of an offence involving moral turpitude. While the conviction under Section 323 and 506 IPC, whether this would involve moral turpitude or not, may be debatable but not much of a debate is possible as regards the involvement of moral turpitude in the context of a conviction under Section 354 I.P.C which reads as under:-
"354. Assault or criminal force to woman with intent to outrage her modesty.-- whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
Reference may be made in this regard to a decision of this Court reported in 1998 CJ (All) 709 (Rajendra Prasad Pandey V/s Allahabad High Court and another, wherein, the term moral turpitude was considered and explained in the light of various decisions of the Supreme Court, of this Court, as also, Dictionaries on the subject. To put it pithily the expression moral turpitude as held by the Supreme Court in the case of Pawan Kumar vs. State of Haryana and others reported in JT 1995(69385) SC 155, is used in legal as well as societal parlance to describe conduct which is inherently base, vile, depraved, or having any connection showing depravity. As held in Rajendra Prasad Pandey(supra) the expression ''moral turpitude' is not a term of a rigid connotation to be defined in any strait-jacket formula, but regard being had to socio-ethical ethos, and mores of a people, at a given time and their cultural heritage, it would not be difficult for the Courts to conclude if a particular offence involves moral wickedness. It was further held that anything done contrary to justice, honesty, principles or good morals, an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or society in general; any thing contrary to accepted and customary rule of right and duty between man and man involves moral turpitude. When the provision of Section 354 IPC is considered this Court is not in any doubt that any offence and conviction under the said provision necessarily involves moral turpitude as the conviction is in respect of an assault or use of criminal force to any woman, intending to outrage or knowing it to be likely that he would thereby outrage her modesty. Not much discussion is required on this issue in view of the aforesaid provision which is self speeking. In this context when the Court goes through the judgment dated 01.06.2018 by which the opposite party no.6 has been convicted the position with regard to moral turpitude being involved in the offence committed by opposite party no.6 under Section 354 becomes crystal clear and is clearly established. There is nothing which could persuade the Court to take any other view of the matter.
In view of the above discussion there can be no doubt that the opposite party no.6 has incurred the disqualification "for being" a Pradhan of the Gram Panchayat concerned under Section 5-A(a) read with Section 8(3) of the Act, 1951 and Section 5-A(a) of the Act, 1947.
The only question which remains to be considered is as to whether writ of a quo-warranto should be issued in such a case or the petitioner should be relegated to the remedy available under Section 6 -A of the Act, 1947 and/or Section 95(1)(g) (v) which reads as under:-
"6-A. Decision on question as to disqualification.-- If any question arises as to whether a person has become subject to any disqualification mentioned in Section 5-A or in sub-section (1) of Section 6, the question shall be referred to the prescribed authority for his decision and his decision shall, subject to the result of any appeal as may be prescribed, be final."
"95 Inspection.-(1) The State Government may--
(a) .... .... ....
(b) .... .... ....
(c) .... .... ....
(d) ..... .... .....
(e) ..... .... ....
(f) ..... .... .....
(g) remove a Pradhan, or member of Gram Panchayat or a Joint Committee or Bhumi Prabandhak Samiti or a Panch, Sahayak Sarpanch or Sarpanch of a Nyaya Panchayat if he--
(i) .... ....
(ii) ..... ....
(iii) .... .....
(iv) .... ....
(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 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 Panchayat appointed by the State Government.
(gg) .... ..... .....
(h) .... ..... .....
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;
(ii)[****] On a bare perusal of the aforesaid provision, it is clear that some sort of consideration involving application of mind and inquiry under the provisions of U.P. Panchayat Raj (Removal of Pradhan, Up-Pradhan and Member) Inquiry Rules, 1997 is contemplated therein involving opportunity of hearing to the Pradhan or member, as the case may be. The purpose and intent of these provisions is that where the allegation that the Pradhan has incurred a disqualification is required to be established and is not admitted to him then resort has to be taken to these provisions when such an issue is raised before the Prescribed authority, but, in a petition before the Court for issuance of a writ of Quo-warranto where it is not in dispute that the opposite party no.6 has been convicted by a court of law under Section 354 IPC, this Court does not find any valid justification for relegating the petitioner for taking recourse to the aforesaid remedy or for directing the authority to proceed under the said provision as, it would be a futile exercise and an empty formality. The principles of natural justice are also not violated if this Court takes such a view for the simple reason as the relevant/material fact is admitted to the opposite party no.6 in the counter affidavit. It is not in dispute that the office of the Gram Pradhan is a public office. This is evident from the duties and functions of Pradhan and the nature of his office as per the Act, 1947 and Rules made thereunder.
In view of the admitted factual scenario it would be a travesty of justice to take any other view of the matter. This Court has no doubt in its mind that the the opposite party no.6 considering the disqualification already incurred by him as discussed hereinabove is not entitled to function as Gram Pradhan even for a moment.
Reference may also be made in this regard to a judgment of the Division Bench of this Court dated 05.01.2016 rendered in Writ Petition No. 11690 (MB) of 2015 (Ram Dayal vs. Chief Election Commissioner and another) wherein, a similar issue was considered in the context of a Gram Pradhan in a petition seeking a writ of quo-warranto against him where the objection was with regard to the availability of alternative remedy of election petition. The Division Bench of this Court held as under:-
" The question as to whether a writ of quo warranto can lie where there is an admitted disqualification is no longer res-integra keeping in view the ratio of decision in the case of Election Commission of India through its Secretary V. Ashok Kumar, AIR 2000 SC 2979. However, a Division Bench of this Court in the case of Smt. Krishna Upadyay V. State of U.P and Others, Writ -C No. 22769 of 2011, decided on 2.5.2011, held that whenever there is such a dispute relating to the age of a candidate, an election petition under Section 12-C of the U.P Panchayat Raj Act, 1947 is the appropriate remedy. The Division Bench relied on the judgment of a learned Single Judge in the case of Smt. Meena Devi V. State of U.P and Others, 2010 (111) RD page 467, and the case of Dhanai V. State of U.P. and others, 2010 (109) RD page 432, to analyze the position and hold accordingly. Another judgment of a Division Bench in the case of Khem Singh Pachara V. State of U.P and others, Writ Petition No. 4567 of 2011, decided on 21.4.2011, was relied on to come to the conclusion that a writ of quo-warranto is not entertained normally as such a challenge can be raised under Section 12 C of 1947 through an election petition. In the aforesaid case, the Division Bench further found that an election petition had already been filed challenging the election of the returned candidate wherafter a writ of quo-warranto was prayed for. Consequently, the writ petition was not entertained.
From a perusal of the said judgment it is clear that a writ petition of quo-warranto can be maintained and in our opinion when the evidence is unimpeachable or uncontestable such a relief can be entertained under Act 226 of the Constitution. In the event there are competing sets of evidence and the same requires sifting of facts in order to determine the correctness or otherwise of the age of candidate, then the presumption of the date of birth so recorded in an official document can also be subject to evidence, more so when the age of the candidate is being contested on other evidence as well. The requirement under the Act and Rules at the time of filing of the nomination only requires the voter list and a declaration as indicated above and which in a particular disputed case may require leading of evidence in order to resolve such a dispute. The returning officer in such a situation has to prima facie consider the right of a candidate to contest election but he cannot act as an election tribunal or a Court for finally adjudicating such a dispute when there are competing sets of evidence relating to age. The returning officer, therefore, having a limited role at the time of accepting or rejecting nomination can act on the basis of prima facie material before him but if the evidence is unimpeachable then in that event, the returning officer would be justified in taking a decision either way.
However, once the evidence is under challenge or there are competing sets of evidence then he has to take only a prima facie decision which would however be subject to the outcome of a election petition if such a candidate is declared successful in the elections."
In the said case the facts were not undisputed and, therefore, the Division Bench relegated the petitioner to the remedy of election petition but here an election petition would not lie as the disqualification has been incurred subsequently, moreover, the facts are not in dispute rather they are admitted, therefore, Sections 6-A and 95(i) (g) also do not persuade this Court to refrain itself from interfering in the matter.
The only question which remains to be considered in this case is as to whether the pendency of an Appeal against the conviction would have any favourable bearing in the matter as far as opposite party no.6 is concerned. The legal position in this regard is so very well settled that it hardly requires any elaborate discussion. Mere pendency of an appeal does not in any manner take away the disqualification attached to a conviction under Section 354 IPC in the case of opposite party no.6. Moreover there is no stay by the appellate Court of the conviction under Section 354 I.P.C.
In view of the above discussion this Court arrives at the conclusion that the opposite party no.6 does not have any authority in law to function and continue as Gram Pradhan of village Sidahir in view of his conviction and sentence on 01.06.2018 for an offence under Section 354 IPC.. His continuance on the said post of Pradhan is without authority of law. It is ordered accordingly.
Rule is made absolute.
Sri J.P. Maurya learned standing counsel shall communicate this judgment to the Collector/District Magistrate, Faizabad for immediate compliance.
Order Date :-26.02.2019.