* THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY + WRIT PETITION NO. 6178 of 2007 % 15.09.2008 # Smt.T.Bhagya Laxmi ...petitioner And $ 1. The Returning Officer-cum-Municipal Commissioner, Mahabubnagar & Ors. ... respondents ! COUNSEL FOR PETITIONER: M/S. S.R.SANKU & KAVITI MURALI KRISHNA ^ Counsel for the Respondent No.1: MR. POLISETTI RADHAKRISHNA Counsel for the Respondent No.2: G.P. FOR REVENUE Counsel for the Respondent Nos.3&4: G.P. FOR HOME Counsel for the Respondent No.5: MR. K.MAHIPATHY RAO < Gist: > Head Note: ? CITATIONS: 1. 2005 (1) SCC 754 2. (1999) 4 SCC 526 = AIR 1999 SC 1723 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 6178 of 2007 Between: T. Bhagya Laxmi W/o Srinivasulu R/o H. No. 4-8-17/2/1, Kumarwadi Street, Mahabubnagar ..... PETITIONER AND 1 The Returning Officer-cum-Municipal Commissioner, O/o Municipaltiy, Mahaboobnagar 2 The District Collector, Mahabubnagar 3 The Superintendent of Police, mahabubnagar 4 The Station house Officer, I Town Police Station, Mahabubnagar 5 Smt. G. laxmi Devi W/o Yellappa R/o 4-7-38, Kisan Nagar Street, Mahabubngar District. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court may be pleased to issue a writ or Order or Direction more particularly one in the nature of Writ of Mandamus declaring that the order of the Court of the Senior Civil Judge-cum-Election Tribunal, Mahabubnagar in election OP No. 66 of 2005 dt 26-2-2007 as illegal, arbitrary an dit is further consequently prayed that this Hon'ble Court may be pleased to set member of Ward No. 30 of Mahabubngar Municipality as illegal, vide ab initio and it is further consequently prayed that this Hon'ble Court may be pleased to declare the petitioner as having been elected to ward No.30 of Mahabubnagar Municipality Pursuant to the election dt 24-9-2005 and allowing her to function as ward member and it is further consequently prayed that this Hon'ble Court may be pleased to direct the authorities concerned to prosecute the respondent No.5 under the provisions of Chapter IX (A) of the Indian Penal code and the allied laws and pass such other order/s as deemed ﬁt and proper in the circumstances of the case. Counsel for the Petitioner: MR.S.R.SANKU & KAVITI MURLI KRISNA Counsel for the Respondent No.1: MR.RADHA KRISHNA POLISETTY (SC FOR MPL) Counsel for the Respondent No.2: G.P. FOR REVENUE Counsel for the Respondent Nos.3&4: G.P. FOR HOME Counsel for the Respondent No.5: MR. K.MAHIPATHY RAO The Court made the following : ORDER: This writ petition has been ﬁled by Smt.T.Bhagya Laxmi assailing the order dated 26.02.2007 passed in O.P.No.66 of 2005 on the ﬁle of the Senior Civil Judge-cum-Election Tribunal, Mahabubnagar, whereby and whereunder the learned Senior Civil Judge dismissed the O.P. ﬁled by the petitioner questioning the election of Smt.G.Laxmi Devi-5th respondent as member of Ward No.30 of Mahaboobnagar Municipality. 2. Background facts of the case leading to ﬁling of this writ petition by Smt.T.Bhagya Laxmi, in brief, are: The writ petitioner and the 5th respondent contested in the elections held on 24.09.2005 for Member of Ward No.30 of Mahaboobnagar Municipality. The 5th respondent secured highest votes and consequently declared to have been elected as Member of Ward No.30 of Mahaboobnagar Municipality. The writ petitioner challenged the election of the 5th respondent on the ground that as on the date of her nomination, she incurred disqualiﬁcation being a convict for the oﬀences under Sections 323 r/w. 34 and 504 IPC in S.T.C.No.166 of 1997 on the ﬁle of the Special Judicial Magistrate of Second Class, Mahaboobnagar. The 5th respondent came to be sentenced to pay a ﬁne of Rs.300/- on each count and the said conviction and sentence became final as there being no appeal preferred by her as on the date of her nomination. The 5th respondent ﬁled counter contending that she preferred an appeal against the judgment of conviction and sentence passed in S.T.C.No.166 of 1997. It is further contended that the petitioner did not raise any objection at the time of ﬁling nomination and thereby she could not be permitted to raise such an objection after announcing the result of the election. Before the Election Tribunal, the petitioner got herself examined as PW.1 and marked 10 documents as Exs.A1 to A10. Whereas, the respondents did not choose to adduce either ocular or documentary evidence on their behalf. The Election Tribunal, on considering the evidence brought on record and on hearing the counsel for the parties, came to the conclusion that the conviction of the 5th respondent for the oﬀences under Sections 323 r/w.34 and 504 IPC does not render her disqualiﬁed to contest in the election as Member of Ward No.30 of Mahaboobnagar Municipality and accordingly dismissed the O.P.66 of 2005 by an order dated 26.2.2007. Assailing the order passed by the Election Tribunal, the petitioner filed this writ petition. 3. Heard learned counsel appearing for the parties. 4. Learned counsel appearing for the petitioner submits that as on the date of the 5th respondent ﬁling nomination, she incurred disqualiﬁcation having suﬀered conviction and sentence of ﬁne for the oﬀences under Sections 323 r/w.34 and 504 IPC and thereby her election as Member of Ward No.30 of Mahaboobnagar Municipality is to be declared as void and instead the petitioner being the candidate who secured next highest number of votes is to be declared as Member of Ward No.30 of Mahaboobnagar Municipality. In support of his submissions, reliance has been placed on the decision of the Supreme Court in K.Prabhakaran v. P.Jayarajan [1]. Much emphasis has been laid on relevant portion in para.39 of the cited judgment, which reads as hereunder: “……Fictionally an appellate acquittal wipes out the trial court conviction; yet, to hold on the strength of such legal ﬁction that a candidate though convicted and sentenced to imprisonment for two years or more was not disqualiﬁed on the date of scrutiny of the nomination, consequent upon his acquittal on a much later date, would be an illegitimate extension of the purpose of the legal fiction. However, we hasten to add that in the present case the issue is not so much as to the applicability of the legal ﬁction; the issue concerns more about the power of the Designated Election Judge to take notice of subsequent event and apply it to an event, which had happened much before the commencement of that proceeding in which the subsequent event is brought to the notice of the court. An election petition is not a continuation of election proceedings.” He also placed reliance on the decision of the Supreme Court in Ravikanth S. Patil v. Sarvabhouma S.Bagali (judgment dated 14.11.2006 in Civil Appeal No.5034 of 2005). He would also contend that once the 5th respondent is disqualiﬁed to get elected as Member of Ward No.30 of Mahaboobnagar Municipality, the writ petitioner is entitled to question the election. To buttress his submissions, reliance has been placed on the decision of the Supreme Court in K.Venkatachalam v. A.Swamickann[2], wherein it has been held that when a disqualiﬁed person gets elected, declaration by High Court under Article 226 of the Constitution of India that he is not entitled to sit in Assembly is proper. 5. Learned counsel appearing for the 5th respondent submits that mere conviction per se does not make the candidate disqualiﬁed and what is stipulated in Section 15(1)(b) of the Andhra Pradesh Municipalities Act, 1965 (for short, ‘the Act’), is conviction for an offence involving moral delinquency. 6. The point that arises for consideration in this writ petition is whether the conviction and sentence of ﬁne of Rs.300/- on each count for the oﬀences under Sections 323 r/w.34 and 504 IPC rendered the 5th respondent disqualiﬁed to contest as Member of Ward No.30 of Mahaboobnagar Municipality? 7. It is not in dispute that the 5th respondent secured maximum number of votes in the election held for Member of Ward No.30 of Mahaboobnagar Municipality. The Returning Oﬃcer declared the 5th respondent as duly elected as Member of Ward No.30 of Mahaboobnagar Municipality. The election of the 5th respondent is challenged on the ground that she incurred disqualiﬁcation to contest in the election and thereby her election as Member of Ward No.30 of Mahaboobnagar Municipality is to be declared as void and instead the petitioner is to be declared as elected as Member of Ward No.30 of Mahaboobnagar Municipality, since she is the candidate who secured maximum number of votes next to the 5th respondent. Sections 14 and 15 of the Act deal with disqualiﬁcation of candidates for election or for holding oﬃce as a member. Section 14 of the Act is not relevant for the purpose of this case and it is only Section 15 (1) of the Act, which is relevant and it reads as hereunder: “15. Other disqualiﬁcations of candidates:- (1) A person who has been sentenced by a criminal court--- (a) To imprisonment for an oﬀence under the Untouchability (Offences ) Act, 1955; (Central Act 22 of 1955). (b) For any oﬀence other than an oﬀence of political character or any oﬀence not involving moral delinquency, such sentence not having been suspended, reversed or the offence pardoned. shall be disqualiﬁed for election as a member while undergoing the sentence and for five years from the date of the expiration thereof. 8. 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. No absolute standard can be laid down for deciding whether a particular oﬀence is to be considered as one involving moral turpitude. The question 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. The tests which should ordinarily be applied and which should in most cases be suﬃcient 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 would 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 deprived character or a person who has to be looked down upon by the society. Any grave criminal oﬀence, which involves an element of guilty knowledge and which thus transgresses the majesty of the law of crimes will necessarily involve an element of ‘moral delinquency’ because of its anti-social content. Moral turpitude connotes conduct inherently base and contrary to accepted rules or morality though it may or may not be punishable as crime. 9. The accusation made against the 5th respondent as reﬂected in the judgment dated 13.10.2000 passed in S.T.C.No.166 of 1997 on the ﬁle of the Special Judicial Magistrate of Second Class, Mahaboobnagar, copy of which has been marked as Ex.A1, is that the 5th respondent, who is ﬁgured as A-1, abused Smt.K.Suneetha and beat her on cheek. The 5th respondent along with two other accused persons were put on trial before the Special Judicial Magistrate of Second Class, Mahaboobnagar. 5 witnesses were examined and two documents were marked as Exs.P1 and P2 on behalf of the prosecution, and whereas, the accused examined one witnesses as DW.1. The Special Judicial Magistrate of Second Class, Mahaboobnagar, found 5th respondent G.Laxmi Devi and two others guilty for the oﬀences under Sections 323 r/w.34 and 504 IPC and convicted them accordingly and sentenced each of them to pay a ﬁne of Rs.300/- under each count i.e. under Sections 323 r/w.34 and 504 IPC, by judgment dated 13.10.2000. 10. In my considered view, the oﬀences alleged and proved against the 5th respondent do not involve moral turpitude. Even on close analysis of Section 15(1)(b) of the Act, it indicates that a person who suﬀered sentence of imprisonment incurs disqualiﬁcation and not a person who has been sentenced to pay a ﬁne only. In my considered view a candidate who has been sentenced to pay a ﬁne for the oﬀences not involving moral delinquency does not incur disqualiﬁcation. Therefore, the Election Tribunal is justiﬁed in dismissing the O.P. ﬁled by the petitioner and the order of the Election Tribunal does not suffers from any illegality or irregularity warranting interference of this Court in exercise of powers conferred under Article 226 of the Constitution of India. 11. Accordingly, the writ petition is dismissed. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:15th September, 2008. Cs LR COPY TO BE MARKED ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{TRT} [1] 2005 (1) SCC 754 [2] (1999) 4 SCC 526 = AIR 1999 SC 1723