R.N.BISWAL, J. W.P.(C) NO.5283 OF 2008 (Decided on 05.05.2010) PRASANT KUMAR BISOI ……….. Petitioner. .Vrs. TRIPATI BISOI & ORS. ………... Opp.Parties. ORISSA PANCHAYAT SAMITI ACT, 1959(ACTNO.7 OF 1960) – SEC.45(B)(H). For Petitioner - M/s. Manoj Kumar Mishra, P.K.Das & A.K.Nayak. For Opp.Parties – M/s. G.N.Mishra, S.C.Sahoo & P.K.Sahoo (for O.P.No.1) R.N.BISWAL, J. In this writ petition, the petitioner challenges the judgment dated 25.03.2008 passed by the learned District Judge, Koraput, Jeypore in Election Appeal No.5 of 2007 confirming the judgment dated 6.8.2007 passed by the learned Civil Judge (Senior Division), Jeypore, Koraput in Election Petition No.15 of 2007. 2. As per the notification of the State Election Commissioner, election for member of Panchayat Samiti of Kusumi Gram Panchayat was scheduled to be held on 21.02.2007. The petitioner and two others contested for the office of Panchayat Samiti Member on the scheduled date and the writ petitioner own the election. Tripati Bisoi, one of the contestants filed Election Petition No.15 of 2007 before the court of learned Civil Judge (Senior Division), Jeypore, Koraput challenging the election of the returned candidate on several grounds including the ground that the returned candidate was disqualified for becoming a member of Panchayat Samiti and continuing as such since he committed murder and was convicted under Section 302 of I.P.C. by the learned Sessions Judge, Koraput at Jeypore in S.C No.297 of 1991, albeit in Criminal Appeal No.307 of 1992, this Court altered the conviction to Section 304-II IPC vide order dated 17.07.2001, and reduced the sentence to five years only. 3. The writ petitioner was opp. party No.1 and the present opposite party No.1 was the petitioner in the election petition. To establish his case, the election petitioner examined himself alone as P.W.1. The opposite parties examined two witnesses to establish their stand. Besides oral evidence, four documents were exhibited on behalf of the election- petitioner. After assessing the evidence on record, the trial court held that there was no dispute that the returned candidate was convicted for the offence under Section 304-II of I.P.C. on the accusation of killing his father, and was sentenced thereunder to undergo R.I. for 5 years and that killing ones own father is an offence involving moral turpitude and accordingly, allowed the election petition on contest in part and the election of the returned candidate as member of Panchayat Samiti of Kusumi Gram Panchayat was declared void. The returned candidate preferred appeal vide Election Appeal No.5 of 2007 before the District Judge, Koraput and it was dismissed. So, the writ petition, as stated earlier. 4. Learned counsel for the petitioner submits that the petition under Section 44-A of the Orissa Panchayat Samiti Act,1959( hereinafter referred to as Samiti Act) is not maintainable in view of Article 243-F (2) of the Constitution of India read with Section 45-B of the Samiti Act. Article 243-F (2) of the Constitution of India envisages that the question of disqualification in respect of member of a Panchayat has to be decided by the authority as prescribed by the State legislatures. Section 45-B of the Samiti Act stipulates that whenever it is alleged that any member of a Samiti is or has become disqualified, any other member may apply to the District Judge having jurisdiction over the place where the office of the Samiti is situated for a decision on the allegation. In the case at hand, since the petitioner is alleged to have incurred disqualification on the ground of killing to his father, opposite party No.1 ought to have filed a petition under section 45-B of the Samiti Act before the District Judge, Koraput for a decision, instead of an election petition. According to learned counsel for the petitioner, it is the settled principle of law that special provision derogates the general provision. Section 44-A is the general provision of the Samiti Act, which stipulates about filing of election petition. But, Section 45-B is the special provision to decide the question of disqualification. So, the election petition is not maintainable. In support of his submission, he relies on the decisions in the case of Gopal Krishna Bhanja vs. Sahadeb Bisoi and another 1994(I)OLR 386, Jeewan Kumar Raut and another vs. Central Bureau of Investigation,(2009)7 Supreme Court Cases 526 and Mahmadhusen Abdulrahim Kalota Shaikh vs. Union of India and others (2009)2 Supreme Court Cases. 5. Learned counsel for the petitioner further submits that this Court in Criminal Appeal No.307 of 1992 has held that the occurrence took place at the spur of the moment and the appellant (petitioner) had no intention to cause death. When he (petitioner) found that his father was digging earth for the purpose of demarcating the house, he might have entertained doubt that by that process he would be deprived of his share in the property and brought out the spear to pierce the same on his father’s belly. Accordingly, the order of conviction under section 302 of I.P.C. was altered to one under section 304- II of I.P.C. Under such circumstance conviction for the offence under section 304-II of I.P.C. does not involve moral turpitude. 6. Learned counsel for the petitioner further submits that as envisaged under Article 243-F(1) of the constitution, if a person is disqualified to contest the election to the State Legislature, he would be disqualified to contest the election to the Panchayat Samiti. Sub-Section (3) of section 8 of the Representation of the People Act,1951 lays down that after six years of release of a convict from custody, he would not suffer from any disqualification to contest the election. In the present case, the petitioner was convicted under Section 302 of I.P.C. and was sentenced to undergo imprisonment for life on 7.7.1992 by the trial court in S. C. No.297 of 1991. Being aggrieved with the said judgment and order, he preferred Criminal Appeal no.307 of 1992 before this Court and on 19.9.1996 he was released on bail. The Criminal Appeal was allowed in part on 7.10.2001 and the order of conviction under Section 302 was altered to Section 304-II of I.P.C. and the sentence was reduced to 5 years. Section 16-B(2) of the Samiti Act provides that in absence of any provision in the said Act, the provision laid down under the Representation of the People Act,1951 shall mutatis mutandis apply to it. The cessation of disqualification in respect of an offence having not been provided in the Samiti Act, the provision contained under Section 8 of the Representation of the People Act has full application. The petitioner was in jail from 1991 to 1996 when he was released on bail So, by the year 2007 i.e. the year of election, the disqualification, if any with the petitioner has already been efaced by operation of law. 7. Learned counsel for the petitioner further submits that the election petition does not contain any averment that the petitioner has been convicted for an offence involving moral turpitude. It is well settled that the election petition has to be filed with specific averment. Mere enumeration of the section is not sufficient. In support of his submission, he relies on the decision Hardwari Lal vs. Kanwal Singh(1972)I Supreme Court Cases 214 and Hari Shankar Jain vs. Sonia Gandhi,(2001)8 SCC 233. 8. At last, learned counsel for the petitioner submits that the petitioner had filed a time petition coupled with a medical certificate on 11.7.2007 in the election petition, but the learned civil Judge rejected the same and closed the hearing without affording any reasonable opportunity to the petitioner to adduce evidence. As he was not allowed to be examined in the election petition, he could not produce any material to substantiate his stand and was highly prejudiced.So, according to the learned counsel for the petitioner, the writ petition should be allowed for complete violation of the principle of natural justice. 9. On the contrary, learned counsel for opp.party no.1 contends that admittedly opp.party no.1 was a candidate in the election fray, as such, he is competent to file an election petition under section 44-C(1)of the Samiti Act and the Civil Judge(Sr.Division) is competent to decide the election petition. Section 45-B of the Samiti Act empowers the District Judge to decide the question of disqualification, but, the District Judge can be moved by a member of the Samiti only. A combined reading of Sections 44-C, 44-L and 45-B of the Act, clearly shows that only a defeated candidate in the election can agitate the question of disqualification of the returned candidate in an election petition and any elected member or Chairman of a Panchayat Samiti can agitate the question of disqualification of a member before the District Judge under Section 45-B of the Act. So, the learned counsel for the opposite party No.1 submits that the election petition is maintainable before the Civil Judge. In support of his submission he relied on the decision in the case of Chandrakanti Bhoi vs. Collector, Bolangir, 2007 (suppl.-1) OLR 400. 10. Learned counsel for opp.party no.1 further contends that the phrase ‘moral turpitude’ is an expression which describes a conduct inherently base, depraved or having any connection showing depravity, as per the decision in the case of Baleshwar Singh vs. District Magistrate, which has been approved by the Supreme Court in the case of Allahabad Bank Vs.Deepak Kumar Bhola (1997)4 SCC page-1. In the present case, the petitioner pierced a spear on the abdomen of his father, while the latter was digging foundation in the homestead land, resulting his instantaneous death. The conduct of the writ petitioner in killing his father is inherently vile, connected with depravity. Thus, his conviction under Section 304-II involves ‘moral turpitude’. 11. Learned counsel for opp.party no.1 next contends that although Section 16-B of the Samiti Act envisages application of Representation of the People Act, to the Samiti Act, but such application is restricted to the cases enumerated under clause (i) to (iv) of sub-section (2) to section 16-B of the Samiti Act that too, in case of absence of any provision in the said Act. The provisions contained under clause (i) to (iv) of sub-section 2 of S14-1ection 16-B of the Samiti Act, do not permit reading of Section 8 of the Representation of the People Act into the Panchayat Samiti Act. Otherwise also, the specific disqualifications having been prescribed under Section 45 of the Samiti Act, there is no scope for reading of the provision contained in the Representation of the People Act by application of Section 16-B of the Samiti Act. The election being a creation of the statute, all disputes shall be confined to that statute only, and reading of any provision from other statute is not permissible. In support of his submission, learned counsel for the opp.party no.1 relied on the decision Thampanoor Ravi vs.Charupara Ravi and others, AIR 1999, Supreme Court 3309. 12. Learned counsel for opp.party no.1 further contends that there is specific averment in the election petition that petitioner was convicted for the offence under section 304-II of I.P.C. involving moral turpitude. 13. Learned counsel for the opp party no.1 lastly contends that the writ petitioner deliberately avoided the witness box. He examined another witness on his behalf, but did not prefer to examine himself, despite several opportunities given to him. Otherwise also, since the petitioner has been convicted under Section 304-II of I.P.C. involving moral turpitude and certified copy of the judgment has been exhibited, he could not have improved his case had he been examined. So, there is no question of violation of natural justice. In support of his submission, learned counsel for opp.party no.1 relied on the decision in the case of Paurnamasi Lenka vs. Tahasildar, 2008 (suppl.II) OLR 832. 14. The following points emerge out from the argument advanced by learned counsel for the parties for consideration: i) whether the election petition is maintainable? ii) Whether conviction of the petitioner under Section 304-II of I.P.C. involves moral Turpitude and if so, whether the disqualification had already been defaced by the time of filing nomination by the petitioner? iii) whether there is pleading in the election petition that the petitioner is convicted under any offence involving moral turpitude? iv) whether there is violation of natural justice by not allowing the petitioner to be examined as a witness before the Civil Judge(Sr.Division), Koraput-Jeypore? 15. As per Section 44-A of the Samiti Act, no election of a person as a member of Samiti shall be called in question except by an election petition. Section 44-C stipulates that an election petition may be presented by any candidate in the election. Section 44- B lays down that election petition shall be presented on one or more of the grounds specified in Section 44-L before the Subordinate Judge having jurisdiction over the place at which the Samiti situates. Section 44-L(1)(c)envisages that the Subordinate Judge shall declare the election of a returned candidate void, if he is of the opinion that such person is disqualified for election. Section 45(1)(h) reads as follow: “45.Disqualification for becoming a member and continuing as a member- (i) A person shall not be eligible to stand for election under Sub-section(1)of Section 16, if he- Xxx xxx xxx Xxx xxx xxx Xxx xxx xxx (h) is convicted for an offence involving moral turpitude. In the present case, admittedly opp.party no.1 was a contestant in the election. But as stated earlier, as per submission of learned counsel for the petitioner the District Judge alone is competent to decide the question of disqualification under Section 45-B of the Samiti Act and an election petition is not maintainable, in the instant case, before the Civil Jude (Senior Division) Jeypore. At this stage, it would be profitable to quote Section 45-B of the Samiti Act which reads as follows: “45-B.District Judge to decide question of disqualification:- (1) Whenever it is alleged that any member of a Samiti has become disqualified, or whenever any such member is himself in doubt whether or not he is or has become disqualified such member or any other member may, and the Chairman at the request of the Samiti shall, apply to the District Judge, having jurisdiction over the place where the office of the Samiti is situated, for a decision on the allegation or doubt. (2) The District Judge, after holding an enquiry in the prescribed manner, shall determine whether or not such member is or become disqualified and his decision shall be final, (3)Pending such decision the member shall be entitled to act as if he was not disqualified”. As per this provision, a Samiti member including the Chairman can only initiate a proceeding alleging disqualification of another member. In other words, one who is not a samiti member cannot take resort to the provision contained under Section 45-B of the Panchayat Samiti Act. Admittedly, opposite party No.1 is not a Samiti member, so he could not have legally filed a petition under the said provision. In the case of Chandrakanti Bhoi (supra), this Court while dealing with Section 26 of the Orissa Gram Panchayat Act, which is pari-materia to the provision under Section 45-B of the Samiti Act held that the Collector, cannot be restrained from proceeding under Section 26 of the Gram Panchayat Act on the ground that an election petition is pending before the Civil Court. It has also been held in the said case that a person who contested the election, cannot file an application under Section 26 of the Orissa Gram Panchayat Act, he can only file an election petition. Furthermore, it has been held therein that a member of the Samiti cannot move an election petition challenging the qualification of a returned candidate, the course open to him is to file a petition under Section 26 of the Gram Panchayat Act, before the Collector. The decisions cited by learned counsel for the petitioner shall not be applicable to the present case. So, it is held that the election petition is maintainable. 16. Now, coming to the offence involving moral turpitude, in the present case, the petitioner on being convicted under Section 304-II of I.P.C. was sentenced to undergo imprisonment for five years. It would be profitable at this stage to quote Section 304-II of I.P.C. which reads as follows:- “304.Punishment for culpable homicide not amounting to murder- Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.” One is liable to be punished on the second part of the above quoted section, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. As appears from the record, while the deceased, who is no other than father of the petitioner was engaged in digging earth to construct a boundary wall, the petitioner being armed with a spear rushed there and pierced it on his abdomen causing the intestinal matters emerged out. As found from the judgment of the District Judge, Koraput-Jeypore, on perusal of the post mortem report, it found one incised wound of size 3”x12”x2” on the epigestric region, slightly towards right side of the abdomen and another incised wound of size 2”x12”x1” just below the scapula of the right side of the body, the first injury being the entrance and the 2nd one the exit. So the intensity of the force applied for piercing the spear appears to be very high. This Court in Criminal AppealNo.307 of 1992 held that the appellant (petitioner) had the knowledge that his act was likely to cause death. In a Hindu Society, father is considered to be taller than sky. According to Manu, the great seer of India, the son delivers his father from the hell called ‘put’, hence he is called ‘putra’. He further says by a son, a man obtains victory over all people. A couplet of Manu which rings through the ages runs as follows: BRUDHOU CHA MAATAAPITARAU SADHWI VARYA SUTAHA SISHUHU APYAKARJASATANKRUTWA BHARTABYA MANURABRABIT It means aged parents, a chaste wife, and an infant son should be maintained even by doing a hundred misdeeds. In other words, the sin one incurs in leaving the aged parents, a chaste wife and an infant son in lurch outweighs the sin he incurs in doing hundred misdeeds. This is the relationship between the father and son in a Hindu Society. The apex court in the case of Pawan Kumar v. State of Hariyana and another (1996) 4 SCC, 17 held that:- “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 case of Baleshwar Singh v. District Magistrate and Collector, Banaras 2, AIR 1959,All-71, it was observed as follows: “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 wickness 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 vileness 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.” Relying on those two preceding decisions, the apex Court in the case of Allahabad Bank and another (supra) held as follows:- “What is an offence involving “moral turpitude” must depend upon the facts of each case. But whatever may be the meaning which may be given to the term ”moral turpitude” it appears to us that one of the most serious offences involving ”moral turpitude” would be where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw.” I have already stated about the status of the father in Hindu Society and the obligation of the son towards him, so also the circumstance and the manner in which the petitioner killed his father by piercing the spear on his abdomen causing the intestinal matters emerged out.). Taking into consideration the relationship between the petitioner and the deceased and the propensity of the force in piercing the spear, the conduct of the petitioner must be held to be due to vileness and depravity. It is contrary to accepted customary rule and duty between the father and son. Under such circumstances, I am of the view that the conviction of the petitioner under Section 304-II of I.P.C. involves ‘moral turpitude’. 17. Now the question is, whether the said disqualification had already been efaced due to efflux of time, by the time, petitioner filed the nomination to contest the election. The incident took place on 26.6.1991. On being arrested the petitioner was remanded to jail in the same year. He was convicted for the offence under Section 302 of I.P.C. on 7.7.1992 and was sentenced to undergo imprisonment for life. As submitted by learned counsel for the petitioner, he was released on bail on 19.9.1996.Criminal appeal no.307 of 1992 was disposed of on 17.7.2001, wherein the offence was altered to one under Section 304-II of I.P.C. and the petitioner was sentenced to undergo imprisonment for five years, by which time he had already undergone the sentence of five years. He filed his nomination in January 2007 by which time more than six years from the date of his release had already been elapsed. Article 243-F(I) of the Constitution reads as follows: “243-F.Disqualifications for membership- (1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat- (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: 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) if he is so disqualified by or under any law made by the Legislature of the State.” Sub-section (3) of Section 8 of the Representation of the People Act, 1951 envisages that: “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”. There is no provision like sub-section (3) of Section 8 of the Representation of the People Act in the Samiti Act. But the question is whether the said provision of Representation of the People Act would be applicable to the present case. Article 243- F(1)(a)of the Constitution of India stipulates that a person is disqualified for being chosen as a member, if he has been disqualified under any law prescribed for the purposes of election