Bombay High Court
Deelip Gopalsingh Thakur vs The State Of Maharashtra on 13 March, 2026
2026:BHC-AUG:12515
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 921 OF 2026
IN APEAL/344/2023
DEELIP GOPALSINGH THAKUR
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant: Mr. S. S. Gangakhedkar
APP for Respondent: Ms. U. S. Bhosale
CORAM : RAJNISH R. VYAS, J.
DATE : 13th MARCH, 2026
ORAL JUDGMENT :
1. Heard Mr. Gangakhedkar, learned counsel for the applicant
and Ms. Bhosale, learned APP for the State.
2. This is the second application preferred by the applicant for
a stay of his conviction.
3. First application was rejected by this Court vide order dated
24.02.2026, in which the reasons were given at length.
4. Learned counsel for the applicant has now contended that
while rejecting the earlier application, the court has taken into
consideration the fact that there were no sufficient pleadings made and
by way of the present application, the applicant has provided the details
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and presented a specific case. He therefore contends that, based on the
material available on record, a second view can now be taken.
5. It is the case that the applicant cannot be appointed as co-
opted member of the Nanded-Waghala Municipal Corporation, as the
provisions of Section 10 of the Maharashtra Municipal Corporations Act
create a hurdle to his induction as a co-opted member. Section 10 of the
said Act is reproduced below. More particularly, the relevant provision is
Sub-Section (1), Clause (a):
“10. Disqualification for being a councillor:
(1) Subject to the provisions of sections 13, 9
and 404, a person shall be disqualified for being
elected and for being a councillor, if such person –
….
(a) has been convicted by a Court of India of
any offence involving moral turpitude, unless a period
of six years has elapsed since the date of such
conviction.”
6. Perusal of the aforesaid clause reveals that a person shall be
disqualified from contesting the election and from being a councillor if
such person is convicted of any offence involving moral turpitude, unless
a period of six years has lapsed from the date of conviction or, upon the
expiry of such sentence, the disqualification incurred under this clause
ceases. Further provision, which is not reproduced above, clarifies that
the expiry of such a sentence shall not entitle a person to continue as a
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councillor or to stand for election at any by-election held during the
remainder of the current term of the councillor.
7. Learned counsel for the applicant then invited my attention
to Section 2 of Sub-Section 11 of the Maharashtra Municipal
Corporations Act, more particularly, definition of councillor which
means a person duly elected as a member of the Corporation and
includes a nominated councillor who shall not have the right, (i) to vote
at any meeting of the Corporation and Committees of the Corporation;
and (ii) to get elected as a Mayor of the Corporation or a Chairperson of
any of the Committees of the Corporation.
8. Learned counsel for the applicant has also relied upon the
Maharashtra Municipal Corporations (Qualifications and Appointment
of Nominated Councillors) Rules, 2012, more particularly Rule 4, which
deals with the qualifications for nomination, and laid special emphasis
on clause (g) of the said rule, which is reproduced as:
“4. Qualification for nomination
A person shall be eligible for being nominated as a
candidate for the office of the nominated councillors if
he has special knowledge or experience in municipal
administration and he, –
………
(g) has experience of not less than five years as an
office bearer of a Non-Government Organisation
registered under the Bombay Public Trusts Act, 1950,
engaged in Social Welfare activities, working within the
area of a Municipal Corporation or a Council.”
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9. He, in the aforesaid background, has contended that if his
conviction awarded by the Additional Sessions Judge-1, Nanded, dated
11.04.2023, in Session Case No. 358/2019, is not stayed, he would
suffer the irreparable loss and the consequences would be irreversible.
10. He has also relied upon various judgments, which would be
discussed in the latter part of the judgment.
11. Per Contra Ms. Bhosle, learned APP contended that this
court vide its order dated 24.02.2026, has already rejected the
application by speaking order and, therefore, now moving the second
application would not be permissible in the eyes of law. She contended
that in the order dated 24.02.2026, material was discussed, including
the fact of lack of pleadings, and, thereafter, the order was passed.
According to her, since this order was not taken exception to by the
applicant before the higher court, it becomes final and, consequently,
the second application would not be maintainable.
12. So far as the provisions of the Maharashtra Municipal
Corporations Act and the Rules stated above are concerned, she
submitted that the provisions are very clear and since the conviction is
awarded, interference at the hands of this court may not be required.
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She has also relied upon various judgments, which would also be dealt
with in the latter part of the judgment.
13. With the help of both the counsels, I have gone through the
impugned judgment, case law, and have pondered over the arguments
advanced by them.
14. The applicant/ original accused no. 3 in Sessions Case No.
358 of 2019, along with other accused was convicted for commission of
offences punishable under Sections 143, 147, 148, 149, 332, 336, 341,
353 and 427 of the Indian Penal Code (hereinafter would be referred to
as ‘the IPC‘ for sake of brevity), so also under Section 3 of the Prevention
of Damage to the Public Property Act of 1984. The Sessions Court tried
all nineteen accused, who were convicted for the aforesaid offences as
under :
Section Sentence Fine (Rs.) In Default 148 r/w 149 IPC R.I. for 3 years 10,000/- R.I. for 6 months 353 r/w 149 IPC R.I. for 2 years 50,000/- R.I. for 6 months 332 r/w 149 IPC R.I. for 3 years 50,000/- R.I. for 6 months 336 r/w 149 IPC R.I. for 3 months 250/- R.I. for 3 days 341 r/w 149 IPC S.I. for 1 month 500/- S.I. for 6 days 3 of Act of 1984 R.I. for 5 years 50,000/- R.I. for 1 year
15. It is not in dispute that the sentence imposed upon the
applicant is suspended. The question that falls for consideration of this
court is whether the second application for a stay of conviction is
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maintainable and whether the stay of conviction can be granted to the
applicant.
16. Coming to the first question, suffice it to say that this court,
while deciding an earlier application on 24.02.2026, has dealt with the
various contentions advanced by the parties and has rejected the
application. One of the principal grounds was the lack of pleadings in
the earlier application. Since in this application, more material is
produced and the pleadings are made, in order to do complete justice, I
think that the matter needs to be looked into its merits.
17. It is a well-settled position in law that contesting an election
is not a constitutional right but a statutory one. The Maharashtra
Municipal Corporations Act, under Section 10, specifically addresses
disqualification for being a councillor. Clause (a) is clear and says that if
a person is convicted by a court of any offence involving moral
turpitude, he shall be disqualified.
18. Thus, the said clause is not a sentence-based clause but can
be called as a subject /conviction-based clause. It is thus necessary to see
whether the act committed by the applicant can be called as an act of
moral turpitude. It is further necessary to mention here that a deeper
analysis of the judgment of conviction would not be permissible at this
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stage. Still, it will have to be seen whether the applicant has made out
an exceptional case.
19. In this regard, it is necessary to reproduce the findings of
the Sessions Court, by which the accused therein, including the present
applicant, were convicted. Paragraph no. 68 of the impugned judgment
deals with various pieces of evidence which intend conviction of the
accused, and the same are reproduced :
“68] From the evidence of the prosecution witnesses , as
has been discussed in detail in the preceding paragraphs of
the Judgment, the prosecution can be said to have proved
the following facts:
(a) That, the incident in question had occurred on
7.6.2009 at about 9.30 to 10.00 a.m.;
(b) That the incident in question had occurred at Hingoli
Gate area on the road passing from Railway Station
towards Hingoli, Narsi, etc. and was in front of the office
of Khurana Travels at Hingoli Gate on the road.
(c) That, S.T. buses bearing registration Numbers AP 28 Z
2316 of Kamareddy Depot of APSRTC, MH 20 D 8827 of
Latur Depot of MSRTC (driven by Hawagirao Tiprale
PW2), MH 20 D 5917 of Hadgaon S.T. bus Depot (driven
by Santosh Toradmal PW5), MH 20 D 6812 of Nanded S.T.
bus Depot (driven by Prakash Yallawad, PW4), MH 20 D
7348 of Gangakhed S.T. bus Depot (driven by Sayyad Sajid
Ali, PW6), MH 40 9623 of Umarkhed S.T. bus Depot, MH
20 D 5173 of Hadgaon S.T. bus Depot and MH 40 8125 of
Aheri S.T. bus Depot of MSRTC, besides jeep bearing
registration No. MH 26 B 445 of Municipal Corporation
Nanded Waghala and Police Departmental jeep of Itwara
Police Station, Nanded bearing registration No. MH 26 L
273 (driven by Galib Khan Jilani Khan, PW3) were
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obstructed from proceeding towards their destinations and
was damaged by the pelting of stones, inflicting blows of
iron rods, etc., on the glass windshields, windowpanes,
etc., at the spot of the incident during the riot on 7.6.2008
at about 9.30 a.m. to 10.00 a.m.
(d) That, the S.T. Bus Drivers of some of the above
mentioned vehicles, when examined as prosecution
witnesses, they narrated the facts about the occurrence of
the incident in question, damage caused to the vehicles in
their possession and the manner of pelting of stones on
their vehicles by forming an unlawful assembly armed with
stones, wooden poles, sticks, etc.;
(e) That the presence of accused Nos. 1 to 3, along with
the accused Nos. 4 to 19, during the riot at the Hingoli
Gate area on 7.6.2008, while raising slogans were raised in
the words “जयà¤à¤µà¤¾à¤¨à¥€à¤œà¤¯à¤¶à¤¿à¤µà¤°à¤¾à¤¯” and pelting stones on the
buses of MSRTC and APSRTC, Police vehicles and the
vehicle of Itwara Police Station, etc. and Municipal
Corporation, Nanded, has been confirmed by Hawagirao
Tiprale, PW2 and recitals in his Information Report at Exh.
48, Santosh Toradmal PW5, Sayyad Sajid Ali, PW6, Galib
Khan Jilani Khan PW3, by his statement proved at Exh. 93
and 94 by Shirpatrao Niwale PW7, Mohd. Salim PW9 and
Manisha Pawar PW10. Further, the facts about the
apprehension of accused persons from the spot of the
incident in question and taking them to the Vazirabad
Police Station in a Police van and the effect oftheir arrest
at the Vazirabad Police Station, Nanded are confirmed
from the arrest panchanamas at Exh. 95 to 108 drawn by
Shripatrao Niwale, PW7. The said arrest panchanamas
have been admitted by the defence , besides the record
finding place for the arrest panchanamas and surety bonds
of accused Nos. 1 to 3 and others, which recite that they
were arrested in connection with Crime No. 146/2008 by
Vazirabad Police Station on 7.6.2008 by PW7 Shripatrao
Niwale when taken at the Vazirabad Police Station. Then ,
the accused persons are aware of their arrest in connection
with the said crime, their attempt to raise a defence of plea
of alibi and refusing to examine the witnesses on this point
can be considered in support of the prosecution’s case
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regarding their presence at the spot of the incident in
question;
(f) That the police from Vazirabad Police Station had
reached at the spot when rioting by pelting of stones and
damaging the S.T. buses and other vehicles by the accused
persons was in progress, and that thereafter the incident
persisted for about 15 to 20 minutes till the accused
persons were apprehended from the spot and taken to
Vazirabad Police Station in a police van. The defence also
speaks in suggestions to the prosecution witnesses that the
accused persons were present at the Vazirabad Police
Station when the police had taken the S.T. buses and other
vehicles to the Police Station , besides the other police
personnel and the accused persons from the spot.
(g) That, due to the pelting of stones during the incident
inquestion, Mohammad Salim PW9 serving as PSI at
Vazirabad Police Station on 7.6.2008 and Manisha Pawar
PW10 serving as Lady Police Constable at the Police
Headquarters Nanded and posted for Law and Order
Bandobast duty at Vazirabad Police Station on 7.6.2008,
were injured as they were hit by the stones pelted by the
accused persons. They were referred to Shri Guru Govind
Singhji Memorial District Civil Hospital and Medical
College, Nanded, where they were medically examined and
treated by Dr Shubhangi Karadkhedkar, PW11. The recitals
of the injury certificates bear the mention of being referred
by Vazirabad Police Station on 7.6.2008. The nature of
injuries found on the persons of injured witnesses could
have been caused during the pelting of stones, as per the
opinion of a medical expert.
(h) That, the informant Hawgirao Tiprale PW2, was
serving as Bus Driver at Latur Depot of MSRTC, Galib Khan
PW3, was serving as a Police Head Constable at Itwara
Police Station, Prakash Yallawad PW4 was serving as S.T.
Bus Driver at Nanded S.T. Depot of MSRTC, that likewise
Santosh ToradmalPW5, was serving as S.T. Bus Driver at
Hadgaon S.T. Bus Depot and Sayyad Sajid PW6, was
serving as S.T. Bus Driver of Gangakhed Depot of MSRTC,
Mohammad SalimPW9 was serving as Sub Inspector of
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criappln921.26.odt
Police at Vazirabad Police Station and Manisha Pawar
PW10 was serving as a Lady Police Constable at Police
Headquarters, Nanded on 7.6.2008. All the said witnesses
besides several others who the prosecution has not
examined, are public servants as per the definition of
“Public Servant” contemplated under section 21 of the
Indian Penal Code as either they were directly in the
employment of the State Government or in the
Maharashtra State Road Transport Corporation established
and run under control of the State Government as
contemplated under Clause 12 of section 21 of the Indian
Penal Code;
(i) That the properties like the S.T. buses and jeep vehicles
of Itwara Police Station and Municipal Corporation of
Nanded, being either the properties of the State
Government or the Corporations established under the
statutes by the State Government, fall within the definition
of “Public Property” as defined under section
2 (b) of the Prevention of Damage to Public Property Act,
1984;
(j) That the informant and other material prosecution
witnesses were discharging their public duties as public
servants at the time of the occurrence of the incident in
question, either as S.T. Bus Drivers or Police personnel
deployed for Law and Order Bandobast;
(k) That, by staging agitation of road blockage by forming
an unlawful assembly armed with stones, sticks, wooden
poles and iron rods, etc. and by pelting stones on the S.T.
buses and police vehicles, etc., had caused obstruction in
the discharge of public duties of the informant and other
prosecution witnesses at the hands of the accused persons;
(l) That, damage to the vehicles referred to in the spot
panchanama Exh. 44 is to the tune of Rs. 2,35,000/-
approximately, which certainly exceeds the damage of Rs.
50/- as contemplated under section 427 of the Indian
Penal Code;
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criappln921.26.odt
(m) That the restraint, which had occurred to free passage
of the S.T. buses, police vehicles and the vehicle of the
Municipal Corporation, etc., from the spot of the incident
in question, falls under the definition of wrongful restraint
as contemplated under section 341 of the Indian Penal
Code;
(n) That the causing of injuries to Mohammad Salim PW9
and Manisha Pawar PW10 during the discharge of their
public duties of pacifying and containing the riots at the
time of the incident in question, attracts the ingredients of
the provisions of section 332 of the Indian Penal Code;
(o) That the obstruction in the lawful discharge of duties
by the informant and other prosecution witnesses, at the
hands of the accused persons due to riots with pelting of
stones and injuring the police personnel as well as
damaging vehicles possessed by them on behalf of State
Transport Corporations, Municipal Corporation Nanded
and the Police Department attracts the ingredients of the
offence punishable under section 353 of the Indian Penal
code, so also the provisions of section 3 of the Prevention
of Damage to the Public Property Act, 1984 are attracted to
the facts of the case in hand;”
20. In this background, it will have to be seen whether the act
of the applicant can be called as an act of “moral turpitude” or not. Mr.
Gangakhedkar, the learned counsel for the applicant, with all fairness,
has brought to my attention the judgment of the Hon’ble Apex Court in
the case of State Bank of India and others Versus P. Soupramaniane, AIR
Online 2019 SC 202, more particularly, paragraph nos. 7 and 8, which
reads as under :
“7. Moral Turpitude’ as defined in Black’s Law Dictionary
(6th ed.), is as follows:
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criappln921.26.odt
“The Act of baseness, vileness, or the depravity in the
private and social duties which man owes to his fellow man,
or to society in general, contrary to accepted and customary
rule of right and duty between man and man.”
“implies something immoral in itself regardless of it being
punishable by law”; “restricted to the gravest offences,
consisting of felonies, infamous crimes, and those that are
malum in se and disclose a depraved mind.”
According to Bouvier’s Law Dictionary, ‘Moral Turpitude’
is :
“An act of baseness, vileness or depravity in the private and
social duties which a man owes to his fellow men or to
society in general, contrary to the accepted and customary
rule of right and duty between man and man.”
Burton Legal Thesaurus defines ‘Moral Turpitude’ as :
“Bad faith, bad repute, corruption, defilement, delinquency,
discredit, dishonour, shame, guilt, knavery, misdoing,
perversion, shame, ice, wrong.”
8. There is no doubt that there is an obligation on the
Management of the Bank to discontinue the services of an
employee who has been convicted by a criminal court for an
offence involving moral turpitude. Though every offence is
a crime against society, discontinuance from service
according to the Banking Regulation Act can be only for
committing an offence involving moral turpitude. Acts
which disclose the depravity and wickedness of character
can be categorised as offences involving moral turpitude.
Whether an offence involves moral turpitude depends on
the facts and circumstances of the case. Ordinarily, the tests
that can be applied for judging an offence involving moral
turpitude are:
a) Whether the act leading to a conviction was such as
could shock the moral conscience or society in general;
b) Whether the motive which led to the act was a base one,
and
c) Whether on account of the act having been committed ,
the perpetrators could be considered to be of a depraved
13
criappln921.26.odtcharacter or a person who was to be looked down upon by
society.
The other important factors that are to be kept in
mind to conclude that an offence involves moral turpitude
are:- the person who commits the offence; the person
against whom it is committed; the manner and
circumstances in which it is alleged to have been
committed; and the values of the society. According to the
National Incident – Based Reporting System (NIBRS), a
crime data collection system used in the United States of
America, each offence belongs to one of the three
categories, which are: crimes against persons, crimes
against property, and crimes against society. Crimes against
persons include murder, rape, and assault, where the
victims are always individuals. The object of crimes against
property, for example, robbery and burglary, is to obtain
money, property, or other benefits. Crimes against society ,
for example, gambling, prostitution, and drug violations,
represent society’s prohibition against engaging in certain
types of activities. Conviction of any alien of a crime
involving moral turpitude is a ground for deportation under
the Immigration Law in the United States of America. To
qualify as a crime involving moral turpitude for such
purpose, it requires both reprehensible conduct and
scienter, whether with specific intent, deliberateness,
willfulness or recklessness.”
21. He then contended that the act of the applicant
cannot be called as an act of moral turpitude. He also placed reliance on
the judgment of Shyam Narain Pandey Versus State of Uttar Pradesh,
reported in (2014) 8 SCC 909, more particularly, paragraph no. 6,
which read as under :
“6. It may be noted that, even for the suspension of
sentence, the court must record the reasons in writing
under Section 389(1) CrPC. A couple of provisos were
added under Section 389(1) CrPC pursuant to the
14
criappln921.26.odtrecommendations made by the Law Commission of India
and observations of this Court in various judgments, as
per Act 25 of 2005. It was regarding the release on bail
of a convict whose sentence is death, life imprisonment,
or a period of not less than ten years. If the appellate
court is inclined to consider the release of a convict of
such offences, the Public Prosecutor has to be given an
opportunity to show cause in writing against such
release. This is also an indication of the seriousness of
such offences and the circumspection that the court
should have while passing the order on stay of
conviction. Similar is the case with offences involving
moral turpitude. If the convict is involved in crimes
which are so outrageous and yet beyond suspension of
sentence, if the conviction is also stayed, it would have a
serious impact on the public perception of the integrity
of the institution. Such orders will definitely shake the
public confidence in the judiciary. That is why, it has
been cautioned time and again that the court should be
very wary in staying the conviction, especially in the
types of cases referred to above, and it shall be done only
in very rare and exceptional cases of irreparable injury
coupled with irreversible consequences resulting in
injustice.”
22. He thus contended that the conviction be stayed, else the
applicant would not be in a position to get nominated as co opt
councillor. He also took me to the law laid down by the Hon’ble Apex
Court in case of Afjal Ansari Versus State of Uttar Pradesh, reported in
(2024) 2 SCC 187, and has contended that in that case, three questions
were framed by the Hon’ble Apex Court, including a question as to
whether as to conviction of offence involving “moral turpitude” can be a
valid ground to deny suspension of conviction under Section 389 (1) of
Cr.p.c. Paragraph 23 of the aforesaid judgment, according to him, is the
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criappln921.26.odt
answer not only to the question raised but to the argument advanced by
the prosecutor. Paragraph nos. 23 and 24, read as under :
“23. In this context, it is crucial that we also address the
final issue before us, i.e., the question of the relevance of
‘moral turpitude’ in the present circumstances. While
contemplating to invoke the concept of ‘moral turpitude’
as a decisive factor in granting or withholding the
suspension of conviction for an individual, there is a
resounding imperative to address the issue of
depoliticising criminality. There has been increasing
clamour to decriminalise polity and hold elected
representatives accountable for their criminal
antecedents. It is a hard truth that persons with a
criminal background are potential threats to the very
idea of democracy, since they often resort to criminal
means to succeed in elections and other ventures. In the
present context too, substantial doubt has been cast
upon the Appellant’s criminal antecedents along with the
veracity and threat posed by these claims, in light of the
many FIRs that have been produced in these
proceedings.
24. While this concern is undeniably pertinent, it remains
the duty of the courts to interpret the law in its current
form. Although ‘moral turpitude’ may carry relevance
within the context of elected representatives, the courts
are bound to construe the law in its extant state and
confine their deliberations to those facets explicitly
outlined, rather than delving into considerations
pertaining to the moral rectitude or ethical character of
actions. This is especially true when it is solely motivated
by the convicted individual’s status as a political
representative, with the aim of disqualification pursuant
to the RPA.”
23. He thus submitted that it remains within the court’s
jurisdiction to interpret the law in its correct form. Discussing the law
laid down by the Hon’ble Apex court, first, it would be necessary to
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mention here that in the case of Afjal Ansari (Supra), the disqualification
of the applicant was under Section 8 of the Representation of the People
Act, 1951 . Section 8 of the Representation of the People Act deals with
disqualification on conviction for certain offences, and it gives the list of
those offences. At this stage, it is necessary to mention here that Section
8, more particularly, Sub-Section 1 clause (a) to (n) speaks about
disqualification on the ground of conviction for violation of specific
provision or specific statute. Sub-Section 2 of Section 8 speaks about the
conviction for contravention of any law providing for the prevention of
hoarding or profiteering, or any law relating to the adulteration of food
or drugs, or any provisions of the Dowry Prohibition Act.
24. Coming to the case at hand, i.e. Section 10 of Sub-Section 1
clause (a)of Maharashtra Municipal Corporations Act, it comes into play,
when the offence is one of moral turpitude. As already stated, in case in
hand, the length of the sentence would not make any difference, but the
conviction for an offence of moral turpitude would trigger
Disqualification.
25. At this stage, the judgment cited by Mr. Gangakhedkar in
the case of State Bank of India (Supra) needs to be taken into
consideration. The gist of the aforesaid judgment would be the test
whether the act committed by the person could be considered to be of a
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criappln921.26.odt
depraved character or a person who was to be looked down upon by
society. The moral turpitude is also defined as an act of baseness,
vileness or depravity in the private and social duties which a man owes
to his fellow men or to society in general, contrary to the accepted and
customary rule of right and duty between man and man.
26. The question of moral turpitude was also dealt with by the
Allahabad High Court in the case of Buddha Versus Naumi Lal, reported
in 1965 Supreme (Online) (All) 32, more particularly, paragraph nos. 23
to 27, which read as under :
“23. The first question that arises in the present case is
whether the conviction of a person under S.7/16 of the
Anti – Adulteration Act disqualifies him from being
nominated or elected to the office of Pradhan on the
ground that the offence in question involves moral
turpitude. According to clause (h) of S.5A of the Act, a
person”convicted of an offence involving moral
turpitude.’ would be disqualified from being chosen,
nominated or appointed to the office of Pradhan. The
initial question that has to be answered is what the
meaning of the expression”moral turpitude ” is. The
expression”moral turpitude” does not appear to have been
defined in any Act. In Aiyar’s Law Lexicon, 1940 Edition,
its meaning is stated as follows: –
“Moral turpitude. Anything done contrary to justice,
honesty, principle, or good morals; an act of baseness,
vileness, or depravity in the private and social duties
which a man owes to his fellow man, or to society in
general, contrary to the accepted and customary rule of
right and duty between man and man. (Ame. Cyc.)”
The meaning of”morality” is stated as follows: –
“Morality. Morality is defined by Paley to be ‘that science
which teaches men their duty / and the reason of it.’ To
18
criappln921.26.odtmake a contract against morals void as being against
public policy, it must be against sound morals, and not
merely against the morals of the times.”
24. In AIR 1963 SC 1313, Gajendragadkar, J. (as he
then was), while discussing the meaning of”moral
turpitude” in connection with the conduct of an advocate ,
observed as follows :
“In dealing with this aspect of the matter, however, it is
of utmost importance to remember that the
expression”moral turpitude or delinquency” is not to
receive a narrow construction. Wherever conduct proved
against an Advocate is contrary to honesty, or opposed to
good morals, or is unethical, it may be safely held that it
involves moral turpitude.”
25. In the case of 1961 R D 186 (All), the meaning of the
expression as used in S. 5 – A of this very Act came up for
consideration before this Court. In this case, one Shiva
Nand, who was convicted of an offence punishable under
the Public Gambling Act, was elected to the office of
Pradhan of a Gaon Sabha. An election petition was
moved against him by Avadh Narain, a contesting
candidate, on the ground that a conviction for an offence
under the Public Gambling Act involves moral turpitude.
The Sub-Divisional Officer upheld the contention of
Avadh Narain and set aside the election of Shiva Nand
and declared a casual vacancy. Shiva Nand filed a
petition under Art. 226 of the Constitution challenging
the validity of the order of the Sub-Divisional Officer and
praying for a writ of certiorari to Quash that order. This
petition was dismissed by a learned single Judge on the
ground that the view which the Sub-Divisional Officer
took of the conviction of the appellant under the
Gambling Act was not such an unreasonable view as to
entitle him to interfere in the matter by way of writ and
to quash the order. A special appeal against this order
was filed by Shiva Nand. This special appeal came up for
hearing before a Bench consisting of Mootham, C.J. and
Raghubar Dayal, J. The two learned Judges took different
views on the matter. Mootham, C.J., held that a
conviction for an offence under the Public Gambling Act
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does not involve moral turpitude. On the other hand, the
other learned Judge took a contrary view. The question
was referred to a third Judge, Mukerji. The judgment of
Mukerji, J., contains certain instructive and relevant
observations in this regard. While referring to the Public
Gambling Act. They observed that the said Act was meant
to provide punishment for species of acts”which caused
common injury, danger or annoyance to the public. The
enactment, therefore, was meant to subserve a social end
or, what may be called in modern forensic language, a
type of ‘social legislation’.” He further observed as follows
:
“It is fairly well known that practically every civilised
country now has laws either prohibiting gambling in
certain forms or regulating gambling.” Subsequently, he
made the following observation :
Ideas of morals often undergo changes in different
periods of a country’s history. It is also true that different
people of the world sometimes differ as to whether a
particular act is moral or immoral. Whenever a question
has to be considered as to whether a certain act is moral
or immoral, one has to consider as to how that act is
viewed by the society or the community, as the case may
be, and if the society or’ the community views such act as
involving moral turpitude, then even though some
particular individual may not consider it so will mot
make the act a moral one or a praiseworthy act.
Therefore, whether an act involves moral turpitude or
does not, has to be determined not necessarily on
abstract notions of the rights and wrongs involved or the
harm or good coming out of the act, but how that act is
looked upon by the society where the act has been
committed.” Subsequently, he observed as follows :
“A gambler has never been looked upon with favour. He
always incurred the calumny of his fellow men. Such
being the position a person, who has suffered punishment
however small it may have been and however far back
into the past it may have been, must be held to be guilty
of a moral wrong and, therefore, his conviction must, in
my opinion, be held to have involved moral turpitude
within the meaning of clause (h) of S. 5 – A of the U.P.
Panchayat Raj Act.”
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26. In Mangali v. Chakki Lal, AIR 1963 All. 527, A.P.
Srivastava, J. held that no absolute standard can be laid
down for deciding whether a particular offence is to be
considered 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 could shock the moral conscience
of society in general, (2) whether the motive which led to
the act was a base one and 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. (Vide
headnote – A).
27. In Baleshwar Singh v. District Magistrate, AIR 1959
All. 71, J.K. Tandon, J. observed that 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 . Still, 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 society in general. If , therefore, the
individual charged with a certain conduct owes a duty,
either to another individual or to society in general, to act
in a specific manner or not to so act , and he still acts
contrary to it. He 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. (Vide head-note E).”
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27. When discussing moral turpitude, it was observed that
determining whether an act is moral or immoral requires considering
how society or the community views it. If society classifies an act as
involving moral turpitude, an individual’s personal belief to the contrary
does not make the act moral or absolve it.
28. As far as the applicant is concerned, he is convicted of the
offences as stated above. The manner in which the incident had taken
place would clearly reveal that the public property was damaged, a
public servant was assaulted, and an unlawful assembly was also
formed. The further caused common injury, danger and annoyance to
the public. So far as the contention of Mr. Gangakhedkar, that
conviction was awarded to the applicant only based on dock
identification, suffice it to say that the trial court has already dealt with
the aspects of the case which are observed supra.
29. It would be further necessary to note that it is not for the
court to decide whether the person should act in a particular manner or
not , what is required to be looked into, whether the law permits a
person who is convicted for the commission of an offence of moral
turpitude to be allowed to get elected as a councillor . The provisions of
the Maharashtra Municipal Corporations Act stated above are crystal
clear and need no elaboration. The law is thus interpreted as it is.
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30. Further, the stay of conviction cannot be granted as a
matter of right, and an exceptional or clear case must be made out. The
contention of learned counsel Mr. Gangakhedkar that his client is a
social worker attached to various social organisations, as evidenced by
the record, suffice it to say that the Court is not dealing with the
character of the present applicant, but rather with the disqualification
and applicability of the provisions of Section 10 (1) (a) of the
Maharashtra Municipal Corporation Act.
31. According to Mr. Gangakhedkar, the applicant is also a
lawyer and documents to that effect are also produced on record. In
light of the discussion made above, it is not material to deal with
aforesaid aspect.
32. Ms. Bhosale, learned APP has then contended that the
judgment of Afzal Ansari (supra) cannot be read in isolation and in that
case, it was the person who was the public representative, having served
as a member of the Legislative Assembly in Uttar Pradesh for five
consecutive terms and as a member of parliament for two terms. She
contended that it is not an absolute rule that, just because a person is an
elected representative or wishes to contest an election, a stay of
conviction must be granted. She submitted that the very notion of
irreversible harm is secured based on factors including individual
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criminal antecedents, the gravity of the offence, and its vital social
impact, while simultaneously considering the facts and circumstances of
the case.
33. According to her, the act committed by the applicant, which
resulted in his conviction, also caused damage to public property, and
the mob at the relevant time was led by the son of the Member of the
Legislative Assembly. The passengers in the public transport vehicle
were frightened, and even stones were pelted, due to which some
sustained injuries. She submitted that one Manisha Pawar – PW 10 –
during the discharge of her public duty was also one of the victims of the
crime. She submitted that unlawful assembly was armed with stones,
sticks, wooden logs, and iron rods, and that stones were pelted on ST
buses and police vehicles, resulting in a loss of Rs. 2,35,000/-.
34. She, therefore, submitted that the act clearly constitutes
one of moral turpitude. It is worth noting that the act of the applicant
can be said to be the act constituting an act of moral turpitude since it
was baseless and was in breach of a social duty that a citizen owes to
fellow citizens or to society. The conviction awarded to the applicant can
also be characterized as one based on moral turpitude, as the flow of
traffic was obstructed and the city in that particular area came to a
haltfor substantial time . Public servants are the backbone of the
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institution, and any assault on them by a private individual, for
agitation, by taking the law into their own hands, would constitute the
offence of moral turpitude.
35. Mr. Gangakhedkar has also relied upon the judgment in the
case of Chandrakant Versus State of Maharashtra, arising out of SLP
(CRL.) No. 1360/2022, with Criminal Appeal No.__/2022 arising out of
SLP (CRL.) No. 2353/2022, more particularly, the order dated
15.12.2022, by which honourable apex court court has stayed the
conviction of the applicant therein because the conviction of the co-
accused in that case was stayed by Division Bench of Bombay High
Courtvide order dated 27.01.2020. He also relied upon the order dated
27.01.2020, passed by the Division Bench of this court in Interim
Application No. 1288/2019 in Criminal Appeal No. 1584/2019. He
contended that the applicant therein was convicted for offences
punishable under Sections 177, 201, 406, 409, 411, 420, 465, 468, 471
read with Section 120-B, 109 and 34 of the Indian Penal Code as well as
under Sections 13 (1) (c), 13 (1) (d) of the Prevention of Corruption
Act, and his conviction was suspended. He contended that at the
relevant time, the applicant therein was a councillor / Corporator of the
concerned Municipal Council and Director of the concerned Bank. He
then submitted that, having regard to his disqualification under the
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provisions of the Maharashtra Co-Operative Society Act, he approached
the Division Bench, and his conviction was stayed.
36. There is merit in an argument advanced by Mr.
Gangakhedkar and the observations made in the said order cannot at all
be disputed. Still, the fact remains that, in that case, it was observed that
the applicant therein had not signed a single cheque during his tenure;
or was giving favours to the particular developer. Further it was not the
case of prosecution that the applicant therein had given anything,
directly or indirectly, from the said project. These facts influenced the
court, and consequently, a stay of conviction was granted.
37. Per Contra, in the present case, the prosecution has
specifically come with a case that it was the applicant who had pelted
the stones and caused damage to the public property.
38. Mr. Gangakhedkar, then relied upon order dated
02.06.2016, passed by the Co-ordinate Bench of this court in Criminal
Application No. 2887/2016 in Criminal Appeal No. 343/2016, and has
contended that in that case the appellant was member of legislative
assembly and his conviction was under Section 353 read with Section
149 of the IPC and sentence imposed upon that appellant was of one
year, so also his condition was under section 143 of the IPC, and this
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court had stayed the conviction. He further submitted that the
conviction was also under Section 304 (Part II) of the IPC, and in
another case under Section 120-B and 420 read with Section 144 of the
IPC, and in those cases, the stay of conviction was granted. He then
contended that in the present case, also, the question pertains to
Sections 143, 147, 148, 149, 332, 341, 353, and 427 of the IPC, and the
sentence should be suspended.
39. I have gone through the said case, the conviction of the
applicant therein was under Sections 353, 149, 304 (Part II), 120 B, 420
of the IPC, and at the relevant time, the appellant was sitting MLA from
a particular constituency and he had shown his wish to contest the
election of Chairman of the Co-operative sugar factory. In that case, the
court observed that since the applicant therein would be disqualified
from filing the nomination form for the directorship of the sugar factory,
of which he was the Chairman and since action would entail serious
consequences; the conviction was suspended. In the said case, the
question was not whether the disqualification was based on moral
turpitude or not, and therefore, the said judgment will not come to the
aid of the accused.
40. Mr. Gangakhedkar, then, also relied upon the judgment in
the case of Rahul Gandhi Versus Purnesh Ishwarbhai Modi and another,
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reported in (2024) 2 SSC 595, and has contended that even in that case,
the conviction was suspended. There is absolutely no dispute regarding
the law laid down in the aforesaid judgment. Still, the distinguishing
facts in that case are that the applicant therein was convicted of an
offence punishable under section 499 of the IPC, which was non-
cognizable. The distinction must be drawn between crimes against
society and crimes against an individual. The act committed by the
present applicant is against society. In contrast, in the case of Rahul
Gandhi (supra), it can be said to be a crime against an individual.
41. Ms. Bhosale, then finally invited my attention to the
judgment in case of Sunil Chhatrapal Kedar Versus State of
Maharashtra, reported in AIROnline 2024 Bom 1052, more particularly,
paragraph no. 29, which read as under :
“29. The ground raised by the accused is that his right of
representation would be affected, in view of
disqualification, in the light of Section 8 (3) of the R.P.
Act. The purpose of the said Section is to ensure that a
person with a criminal record is not elected to public
office, and this is a legitimate aim in a democracy.
Disqualifying a person who has been convicted of a serious
offence from holding public office is in the interest of
maintaining the integrity and credibility of the democratic
process.”
42. The submission made by Ms. Bhosale is worth noticing,but
at the cost of repetition, it is mentioned that the court is not going to
decide how the elected representative should function. The question is
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whether the appellant meets the criteria for suspending the conviction.
As previously stated, the provisions of the Maharashtra Municipal
Corporations Act, more particularly Section 10(1)(a), clearly deals with
the disqualification of a person convicted of an offence involving moral
turpitude. Furthermore, the discussion above shows that there was
sufficient material against the present appellant, as the trial court found.
Therefore, I am of the view that the applicant makes out no case for a
stay of conviction. Hence, the following order is passed :
ORDER
i. Criminal Application is rejected.
ii. Needless to mention that these observations are prima facie
in nature.
( RAJNISH R. VYAS, J. )
SPC
