2000(4) ALL MR 231
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.M. LODHA, J.

Vinodkumar Bansal Vs. State Of Maharashtra & Ors.

Writ Petition No. 3177 of 1998

29th June, 2000

Petitioner Counsel: Dr. V. K. CHAUDHARI

Maharashtra Co-operative Societies Act (1960), Bye Laws No.32(v) - Managing Committee - Election to - Disqualification - Offence involving 'moral turpitude' -What constitutes - It implies depravity and wickedness of character - Conviction of Petitioner u/s.9B (i)(b) of Explosives Act for selling crackers without licence - Petitioner had applied for licence, deposited requisite fee and was also given no objection certificate by authorities - Petitioner also granted licence after date of offence - Petitioner cannot be considered as convicted for offence involving moral turpitude.

Moral turpitude is not defined but anything done contrary to justice, honesty, modesty or good morals can be said to be an act of moral turpitude. An act of vileness or depravity in the private and social duty which a man owes to his fellowmen or to the society in general, contrary to the accepted customary rule or right and duty between man and man may make that act an act of moral turpitude. What constitutes moral turpitude or what will be held as such cannot be stated in a straight jacket formula but nevertheless the expression 'moral turpitude' does imply depravity and wickedness of character. The tests which should be applied for judging whether a certain act or offence does or does not involve moral turpitude, are (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. Each case has to be examined in the light of its own facts by applying the aforesaid tests.

AIR 1963 ALL 527, AIR 1965 Punj. 433, AIR 1966 Punj.393, AIR 1980 HP 45, 1981 (II) Prevention of Food Adulteration Cases, Pg. 17 - Rel.on. [Para 13]

Cases Cited:
Baleshwar Singh V. District Magistrate and Collector, Banaras, AIR 1958 Allahabad 71 [Para 7]
Mangali V. Chhakki Lal , AIR 1963 Allahabad 527 [Para 8]
Chandgi Ram Thakar Dass V. Election Tribunal and Asstt. Development Commissioner for Panchayat Elections Delhi , AIR 1965 Punjab 433 [Para 10]
Risal Singh V. Chandgi Ram , AIR 1966 Punjab 393 [Para 10]
Inder Lal V. Luchuram, 1981 (II) Prevention of Food Adulteration Cases 17 [Para 12]


JUDGMENT

JUDGMENT :- The order passed by the Returning Officer, Agrasen Co-operative Bank Ltd.,Yerawada, Pune (respondent No.3 herein) on 17.6.98 rejecting the nomination form of the present petitioner for election to the managing committee of Agrasen Co-operative Bank (respondent No.4 herein) and the order dated 26.6.98 passed by the District Deputy Registrar, Co-operative Societies (Respondent no.2 herein) confirming the order of respondent no.3 are under challenge in this writ petition filed under Articles 226 and 227 of the Constitution of India.

2. The petitioner is member of respondent no.4 Bank which is urban co-operative bank and is notified society under section 73-IC of the Maharashtra Co-operative Societies Act,1960. The election programme for electing the managing committee members of the respondent no.4 society for the tenure of 1998-2003 was declared by the Registrar and the respondent no.3 was appointed as Returning Officer. According to the election programme, the nomination could be filed by 15.6.98; the scrutiny of nomination papers was to be done on 16.6.98 and the declaration of list of valid nominations was to be made by 16.6.98. The petitioner filed his nomination paper pursuant to the aforesaid election programme. The respondent no.3 conducted the scrutiny of the said nomination paper on 16.6.98 and on the objection of one Shri Ashok K. Agarwal, rejected the nomination of the petitioner vide his order dated 17.6.98 on the ground that the petitioner was disqualified under bye-law no.32 (v) of the respondent no.4 society. The reason for holding the petitioner disqualified was that he was convicted by the Judicial Magistrate, First Class, Court No.2, Pune on 28.1.97 for the offence punishable under section 9-B(1)(b) of the Explosives Act and sentenced to suffer simple imprisonment till rising of the court and to pay fine of Rs.3000/- and in default, to suffer simple imprisonment for three months. The conviction of the petitioner under section 9-B(1)(b) of the Explosives Act by the criminal court was treated as an offence involving the moral turpitude by the Returning Officer under bye-law No.32 (v) and as period of six years had not lapsed since his conviction, he was held disqualified. The petitioner challenged the order dated 17.6.98 passed by the Returning Officer rejecting his nomination in appeal before the but he could not succeed there, necessitating the filing of the present writ petition.

3. It may be noted here that during the pendency of writ petition, this court vide order dated July 3, 1998 granted ad-interim relief in terms of prayer (b) as a result of which, the operation, execution and implementation of the impugned orders dated 17.6.98 and 26.6.98 were suspended and the Returning Officer was directed to include the name of the petitioner in the list of valid nomination and contesting candidates and to allow the petitioner to contest the election of the managing committee of the respondent no.4 society. Consequent upon the interim order passed by this court, the petitioner contested the election and won the same. He is, thus, holding the office of director of the respondent no.4 society subject to the decision in this writ petition.

4. The only question that falls for determination in this writ petition is, whether conviction of the petitioner under section 9-B(1)(b) of the Explosives Act by the Judicial Magistrate, First Class, Court No.2, Pune vide its judgment and order dated 28.1.97 amounts to an offence involving moral turpitude or not.

5. Clause (v) of bye-law No.32 reads thus-

"32, VACATION OF OFFICE BY A DIRECTOR:

A Director shall be deemed to have vacated his office before the expiry of his term if:-

i) -------

ii) -------

iii) -------

iv) -------

v) he has been convicted of an offence involving a moral turpitude, unless a period of six years has elapsed since his conviction;

vi) -------"

6. The copy of the judgment of the criminal case in which the petitioner has been convicted for the offence punishable under section 9-B(1)(b) of the Explosives Act has been annexed by the petitioner as exhibit "C" to the writ petition. It transpires therefrom that the petitioner who was accused in the criminal case was chargesheeted for the offence punishable under section 5 read with section 9-B(1)(b) of the Explosives Act, 1884. The prosecution case was that the petitioner was found selling the crackers at the time of Diwali 1983 without licence. On 21.10.93 when the premises 1532 Shukravar Peth, Pune was visited by the concerned officials of the police station, the stock of different types of firework was found. The enquiry was made from the petitioner who told them that though he has applied for the licence but the licence was not so far issued to him. The prosecution witnesses admitted that the petitioner made an application for licence on 5.10.93 for selling crackers. He also deposited the requisite fee on 12.10.93 and the no objection certificate from concerned authority was also obtained on that date. The licence was issued on 28.10.93 effective from the date of issuance and since on 21.10.93, the petitioner was not having valid licence, the offence under Explosives Act as held to have been committed by him.

7. The courts have been called upon to examine on various occasions whether a particular offence involves moral turpitude or not. In Baleshwar Singh V. District Magistrate and Collector, Banaras and Ors. AIR 1958 Allahabad 71, the learned Single Judge of that court was concerned with the question whether offence under section 182 of I.P.C. is an offence involving moral turpitude. In Paras 23,24 and 25 of the said report, the learned Judge held thus-

"23. The expression 'moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses wileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general. To act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man.

24. Judging the position in the back ground of the foregoing discussion, S.182(a) in declaring that giving of false information to a public servant with the intention that the public servant may do or omit to do anything which he ought not to do or omit, if the true state of facts respecting such information were given to him or known to him, has enjoined a duty on persons to abstain from giving such information etc. to a public servant. A duty has been cast on individuals not to act in a certain manner and detract public servants from their normal course. This is a duty which every individual who is governed by the above law owes to the society whose servant every public servant obviously is. An individual's conduct in giving false information to a public servant in the circumstances stated in S.182(a) too is therefore contrary to justice, honesty and good morals and shows depravity of character and wickedness.

25. Therefore an offence under S.182 I.P.C. whether falling under cl. (a) or cl. (b) is an offence involving moral turpitude. Baijnath, who admittedly had been convicted for an offence under this section was therefore disqualified to be appointed as Nyaya Panch under S. 5(a) of the Act. His appointment accordingly is invalid."

8. Subsequently, in Mangali V. Chhakki Lal and Ors. AIR 1963 Allahabad 527, another Single Judge of Allahabad High Court did not fully agree with some of the observations made in Baleshwar Singh's case in respect of the offences involving moral turpitude. In paras 5 and 6 of the report, the learned Judge of Allahabad High Court held thus-

" 5. With great respect, it appears to me that some of the observations made in these decisions have been too widely stated and if followed literally may make every act punishable in law an offence involving moral turpitude. That, however could not be the intention with which those observations were made. From consideration of the dictionary meaning of the words 'moral' and 'turpitude' as well as the real ratio decidendi of the cases the principle which emerges appear to be that the question whether a certain offence involves moral turpitude or not will necessarily depend on the circumstances in which the offence is committed. It is not every punishable act that can be considered to be an offence involving moral turpitude. Had that been so, the qualification "involving moral turpitude" would not have been used by the Legislature and it would have disqualified every person who had been convicted of any offence. The tests which should ordinarily be applied for judging whether a certain offence does or does not involve moral turpitude appear to be: (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.

6. No absolute standard can be laid down for deciding whether a particular act is to be considered one involving moral turpitude but the above are the general tests which should be applied and which should in most cases be sufficient for enabling one to arrive at a correct conclusion on the questions."

9. Applying the aforesaid tests to the facts of the case in hand, the learned Judge in Mangali (Supra) held that the conviction of a person under section 60 of the Excise Act was not an offence involving moral turpitude.

10. The conviction for offence under section 19 (f) of the Arms Act, 1878 was not treated as amounting to moral turpitude by the learned Single Judge of Punjab High Court in Chandgi Ram Thakar Dass V. Election Tribunal and Asstt. Development Commissioner for Panchayat Elections, Delhi and ors. AIR 1965 Punjab 433. Upon appeal being taken, the Division Bench affirmed the view of the learned Single Judge. The case is reported in AIR 1966 Punjab 393, Risal Singh V. Chandgi Ram and ors. The Division Bench following the judgment of Allahabad High Court in Mangali's case held thus-

"6. If the tests, which are laid down in Mangali's case, AIR 1963 All 527, by A.P. Srivastava, J., are kept in view, I do not see how it can fairly be said that he offence of which Chandgi Ram respondent had been convicted involved moral turpitude. The learned counsel for the appellant maintained that it was for Chandgi Ram to give an explanation of the circumstances in which the offence had been committed and in this connection he referred to a judgment of P.D. Sharma, J. in Malkha Singh V. Haridial Singh, Civil Writ No.145 of 1965, dated 3.3.1965 (Punj). This is an unreported judgment, but there is a brief reference to it in the short notes in (1965) 67 Pun LR (Note No.49 at P.25). It appears that the conviction in that case was for an offence under S.61 of the Punjab Excise Act and the sentence imposed was two months' rigorus imprisonment, but the nature of the particular offence committed is not given, and so it is not possible to derive any help from that judgment.

7.On the facts of the case before us we are unable to find any error in the view of the learned Single Judge that the offence for which Chandgi Ram respondent was convicted implied no such depravity and wickedness of character or disposition which would involve any moral turpitude. As observed by the learned Single Judge, people keep fire-arms for their personal safety and some times they resort to keeping arms without a license when they feel that their status in society is not such as would enable them to get a licence from the authorities. No doubt they commit a contravention of the law, but it cannot necessarily be postulated that this contravention involved moral depravity and wileness of character."

11. The Division Bench of Himachal Pradesh High Court also had an occasion to deal with the question whether the conviction of a person under section 16 of the Prevention of Food Adulteration Act, 1980 ipso facto involves moral turpitude or not in Prem Kumar V. State of Himachal Pradesh and ors., AIR 1980 Himachal Pradesh 45. The Division Bench of Himachal Pradesh High Court observed that before forming the opinion whether an offence committed by a person involves moral turpitude, the authorities must apply mind to the facts of the case.

12. The similar question whether the offence committed under section 7/16 of the Prevention of Food Adulteration Act is an offence involving moral turpitude or not came up for consideration before the Rajasthan High Court in Inder Lal V. Luchuram and another, 1981 (II) Prevention of Food Adulteration Cases, page 17 and the learned Single Judge relied upon the tests laid down by Allahabad High Court in Mangali's case and held that such an offence did not involve moral turpitude.

13. Moral turpitude is not defined but anything done contrary to justice, honesty, modesty or good morals can be said to be an act of moral turpitude. An act of wileness or depravity in the private and social duty which a man owes to his fellowmen or to the society in general, contrary to the accepted customary rule or right and duty between man and man may make that act an act of moral turpitude. What constitutes moral turpitude or what will be held as such cannot be stated in a straight jacket formula but nevertheless the expression 'moral turpitude' does imply depravity and wickedness of character. The tests which have been laid down by the Allahabad High Court in Mangali's case (supra) should be applied for judging whether a certain act or offence does or does not involve moral turpitude; to reiterate the said tests are: (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. Each case has to be examined in the light of its own facts by applying the aforesaid tests. In the backdrop of aforesaid legal position if the facts of the present case are seen, the admitted position is that the petitioner had applied for license and permission as required under section 5 of Explosives Act for selling crackers to the concerned authorities on 5.10.93. He deposited the requisite fee on 12.10.93. No objection certificate was also given by the concerned authorities on 12.10.93. The petitioner was also granted license and permission on 28.10.93 but before that on 21.10.93 when the premises at 1532 Shukrawar Peth, Pune were inspected, the petitioner was found selling crackers without permission and license and that led to his conviction under section 9-B(1)(b) of the Explosives Act. By no stretch of imagination, the conviction of the petitioner in the aforesaid circumstances under section 9-B(1)(b) can be said to be a conviction involving moral turpitude.

14. The respondent no.3, therefore, seriously erred in rejecting the nominations of the petitioner and the respondent no.2 committed similar error in confirming the erroneous order of the respondent no.3.

15. Consequently, the writ petition is allowed. The order dated 17.6.98 passed by respondent no.3 and the order dated 26.6.98 passed by respondent no.2 are quashed and set aside. Rule is made absolute in the aforesaid terms. No costs.

Petition allowed.