*1* wp.710.11.942.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.710 OF 2011 Dattatraya Sakharam Khade. ..Petitioner -Versus- The State of Maharashtra and others. ..Respondents .......... Mr.Harshad Bhadbhade, for the Petitioner. Mr.A.A.Kumbhakoni with Mr.A.P.Kulkarni, for the Respondent Nos.2 and 3. Mr.Sachindra Shetye, for the Respondent No.4. Mr.R.M.Patne, AGP, for the Respondent No.1. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 24th June, 2011. P.C.: 1 Rule. 2 With the consent of the learned counsel appearing for the parties, heard forthwith. 3 The Petitioner is aggrieved by the order passed by the learned Judge of the Court of Small Causes, Pune dated 21.12.2010 in Election Reference No.1/2010. 4 The question of the Petitioner’s disqualification was referred to the Small Causes Court in the following circumstances:- The Pune Municipal Corporation is a corporation established and incorporated under the Bombay Provincial Municipal Corporations Act, 1949. The Petitioner is Municipal Councillor elected from Ward No. 35, Modern College in the year 2007. His tenure as a Councillor is from 15.03.2007 to 14.03.2012. Cr.No.58/2004 alleging offences punishable under Sections 302, 352, 323, 504 r/w 34 of the Indian Penal Code was *2* wp.710.11.942.sxw registered against the Petitioner at Deccan Gymkhana Police Station, Pune. After committal, it was registered as Sessions Case No.171/2004. The learned Sessions Judge, Pune by his judgment and order dated 30.01.2009 held that the Petitioner is guilty of the offences punishable under these provisions and convicted him accordingly. He directed him to suffer imprisonment for life and imposed fine of Rs.5000/-. Against this order of conviction and sentence, the Petitioner preferred an Appeal being Criminal Appeal No.169/2009 before this Court. On account of his conviction and sentence, initial attempt was made to disqualify the Petitioner straightaway. On the matter being brought before this Court in Writ Petition No.700/2010 and the legal position being noticed, the General Body of the Corporation resolved that a Reference be made to the Court and that is how the proceedings are registered as Election Reference and decided accordingly. 5 Two contentions have been raised by Mr.Bhadbhade, learned counsel appearing for the Petitioner. His first submission is that the criminal appeal has now been allowed and the Petitioner’s conviction and sentence has been altered to that of Section 326 r/w 34 instead of 302 of the Indian Penal Code. The conviction and sentence is for a lesser offence. In such circumstances, the reference proceeds on the basis that the Petitioner committed a grave and serious offence involving moral turpitude and therefore, he stands disqualified. However, that conviction has now been diluted and the Petitioner has not been found guilty of the charge of murder, therefore, this Court must proceed on the basis that the subsequent appellate judgment will have its own impact on the issue of disqualification for having been found guilty of a serious offence involving moral turpitude. 6 His second submission is that the reference to the Judge was *3* wp.710.11.942.sxw barred by limitation. Inviting my attention to Sections 10, 12, 405 and 435 of the Bombay Provincial Municipal Corporations Act, 1949, it is contended that admitted factual position should be noticed. The Petitioner was convicted on 30.01.2009. The show-cause notice was issued by the Commissioner of Corporation on 29.08.2009. On 14.09.2009 the Corporation received a reply from the Petitioner and the Writ Petition No. 700/2010 was decided on 04.03.2010. The General Body resolution is dated 20.04.2010 and the reference is filed on 18.09.2010. Mr.Bhadbhade submits that by virtue of sub-section (2) of Section 435, a reference should have been made within 30 days from the date of judgment and order of conviction and sentence, and that having been made after a year, the reference was clearly time barred. The conclusion of the Judge that the starting point of limitation is from the date of Commissioner’s order and there is no order passed by the Commissioner, therefore, the reference is not time barred; is erroneous. In this behalf, Mr.Bhadbhade invites my attention to the judgment in case of Sajeda Nihal Ahmed v/s Malegaon Municipal Corporation & others, reported in 2005(1) Bom. C.R. 142. 7 On the other hand, Mr.Kumbhakoni, learned counsel appearing for the Corporation, submitted that the contentions of the learned counsel for the Petitioner have no substance. The disqualification is for being Councillor and if the Councillor has been convicted by a Court in India of any offence involving moral turpitude, unless a period of six years has elapsed since the date of such conviction, he is clearly disqualified. He submits that the argument is not that the incident or crime in which the Petitioner was involved and for which the Petitioner was convicted, is not an offence involving moral turpitude. The argument is that initial conviction for murder under Section 302 has been altered to Section 326 of the Indian Penal Code, therefore, the rigour of conviction *4* wp.710.11.942.sxw has been diluted to certain extent. The second argument about limitation has no substance because in this case there was no order passed disqualifying the Petitioner. In the case relied upon by the Petitioner’s Advocate, there was an order passed and the question was whether, the Commissioner can disqualify the Councillor and there was doubt about whether, he can be disqualified at all. In this case, there is no such doubt. Therefore, reliance placed on the said judgment is misplaced. For all these reasons, it is submitted that the petition be dismissed. 8 With the assistance of the learned counsel appearing for the parties, I have perused the judgment under challenge and the legal provisions brought to my notice. As far as the first question is concerned, I do not find that the learned Judge has committed any error in holding that the Petitioner stands disqualified. The Petitioner was disqualified on the ground that he has been convicted by a Court in India of an offence involving moral turpitude. The Court below has rightly applied the test and borrowed the definitions from the legal dictionaries of the word “moral turpitude”. It is clear that the disqualification is provided because a Councillor ought not be convicted by a Court in India of an offence involving moral turpitude. He holds a office of public trust and is representing a constituency and therefore, he should possess high moral character. In such circumstances, alteration of conviction in appeal cannot be of any assistance to the Petitioner. That apart, it is not disputed that the Petitioner is convicted of an offence involving moral turpitude. The conviction is for a charge under Section 326 of the Indian Penal Code, which is voluntarily causing grievous hurt by dangerous weapons or means. In 1988 Mh.L.J. 768 (Pandurang Hari Kulkarni and others v/s Manohar Gopal Vadalkar and another), a Division Bench considered the ambit and scope of such a provision. In this decision, it is held thus:- *5* wp.710.11.942.sxw “The term “moral turpitude” is rather vague one and it may have different meanings in different contexts. The term has generally been taken to mean to be a conduct contrary to justice, honesty, modesty or good morals and contrary to what a man owes to fellow man or to society in general. Every act punishable in law would not amount to an offence involving moral turpitude. If that had been the intention then there was no necessity to say that a person convicted of an offence involving moral turpitude would be exposed to certain consequences or disqualifications. The Legislature would have merely stated that a person who is punished for violation of any law would be exposed to such consequences. The question whether a particular offence involves moral turpitude will depend upon the facts and circumstances of each case. However, in order to come within the ambit of said phrase, there must be element of baseness, and depravity in the act alleged. The act must be vile or harmful to society in general or contrary to accepted rules or rights and duties between man and man. It cannot be forgotten that some times a person may be technically guilty without any intention on his part. As to what is the import of the phrase “moral turpitude”, has been considered by the Division Bench of this Court in 1980(1) Labour Law Journal 117 Jaysing Rangrao Raout vs. Maharashtra State Electricity Board and anr. and 1981 Bombay Cases Reporter 423 Mohd. Hanif vs. Addl. Commissioner and Addl. Regional Director, Aurangabad and ors. The tests which should ordinarily be applied are as follows:- (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.” 9 In such circumstances, the first contention of the Petitioner must fail as the conviction and sentence is for an offence which certainly *6* wp.710.11.942.sxw is harmful to the society. 10 Equally, the second contention that the reference was beyond limitation cannot be accepted. Assuming that sub-section (2) of Section 435 is applicable in the facts of this case and to a reference under Section 12 r/w 405, yet, the show-cause notice was issued to the Petitioner on his conviction. It is not the case of the Petitioner that the show-cause notice could not have been issued. The reply was received, but a doubt was once again raised and that came to be settled because of the decision of this Court. That decision was rendered on 04.02.2010. Pursuant thereto, the General Body of the Corporation passed the resolution on 20.04.2010 and the reference was filed on 18.09.2010. In the peculiar facts of this case, the conclusion of the learned Judge is that 30 days’ limitation will not apply because unlike the case of Sajeda Nihal Ahmed (supra), there is no order passed by the Commissioner. Yet, the argument is that assuming the date of General Body meeting is the starting point, within 30 days there from, the reference was not made and it was filed on 18.09.2010. It is not the argument of Mr.Bhadbhade that Section 5 of the Limitation Act is inapplicable in such cases. The learned Judge has held that in the peculiar facts of this case, after the resolution was passed by the General Body, the reference was filed on 18.09.2010. From perusal of the record, it does not appear to me that the reference could not have been entertained at all. Ultimately, the reference was made by the General Body of the Corporation and that resolution has to be implemented by the authorities of the Corporation. That they took their own time and filed the reference on 18.09.2010, but that does not permit the Petitioner to raise the issue of limitation and considering the nature of the Reference it is for the Judge to reject the reference on the ground that it is not within limitation. The reference came to be decided on merits also. Any larger issue of starting *7* wp.710.11.942.sxw point of limitation need not to be decided. The resolution of the General Body cannot be construed to mean, in this case, an order as contemplated by sub-section (2) of Section 435. Thus, even the argument on limitation must fail. 11 As a result of the above discussion, Rule is discharged. 12 At this stage, Mr.Bhadbhade prays that ad-interim order made by this Court be continued for a period of four weeks to enable the Petitioner to challenge this order in a higher court. The order of stay that is passed cannot be construed to mean that the disqualification is stayed. Ultimately, the order has to be set aside to wipe up the disqualification. The order having been upheld, all that can be directed is that the Election Commission should not take steps to fill up the vacancy for a period of four weeks from today. 13 Writ Petition is dismissed. No costs. (S.C. Dharmadhikari, J)