Gujarat High Court
Anakbhai Chhanabhai Sankhat vs State Of Gujarat on 5 January, 2021
Bench: Bhargav D. Karia
C/SCA/12134/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12134 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ANAKBHAI CHHANABHAI SANKHAT
Versus
STATE OF GUJARAT
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Appearance:
MR.MRUDUL M BAROT(3750) for the Petitioner(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2,4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,3
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 05/01/2021
ORAL JUDGMENT
1. Heard learned advocate Mr. Mrudul Barot for the
petitioner, learned advocate Mr. Premal Joshi
for the respondent nos. 2 and 4 and learned
Assistant Government Pleader Mr. Kanva Antani
C/SCA/12134/2020 JUDGMENT
for the respondentState through video
conference.
2. By this petition under Article 227 of
Constitution of India, the petitioner has prayed
for the following reliefs:
"(A) YOUR LORDSHIPS be pleased to admit and
allow the present petition in the interest of
justice;
(B) YOUR LORDSHIPS pleased to issue any
appropriate writ, order or direction in the
nature of mandamus, quashing and setting aside
the impugned order dated 23.08.2019 passed by
Ld. District Development Officer, District:
Amreli - respondent no.2 and the Order dated
25.02.2020 passed by the Ld. Additional
Development Commissioner, State of Gujarat, in
the interest of justice;
(C) YOUR LORDSHIPS be pleased to stay the order
dated 23.08.2019 passed by Ld. District
Development Officer, District: Amreli -
respondent no.2 and the Order dated 25.02.2020
passed by the Ld. Additional Development
Commissioner, State of Gujarat - respondent No.3
in the interest of justice;
(D) YOUR LORDSHIPS may be pleased to quash and
set aside the order dated 23.08.2019 passed by
Ld. District Development Officer, District:
Amreli - respondent no.2 and the Order Justice;
(E) YOUR LORDSHIPS may be pleased to grant such
other and further relief(s) as deemed just and
proper in the facts and circumstances of the
case in the interest of justice;"
3. The brief facts of the case are as under:
C/SCA/12134/2020 JUDGMENT
3.1 The petitioner was elected as the Sarpanch
of Babarkot Village Panchayat and was holding
the post of Sarpanch since 24.01.2017. One FIR
being IC.R.No.7 of 2018 was registered before
the Jafarabad Marine Police Station for offences
under Sections 307, 323, 324, 143, 147, 148,
149, 325 and 504 of the Indian Penal Code and
Section 135 of the G.P. Act against the
petitioner and other persons.
3.2 In connection thereto, the petitioner had
received the Show Cause Notice dated 03.08.2018
issued by the District Panchayat Office, Amreli
and the petitioner had also given the reply to
such Show Cause Notice. It is the case of the
petitioner that the petitioner had also at a
prior point of time given a complaint on the
Letter Head of the Gram Panchayat to the Police
Inspector, Marine Police Station, Jafarabad on
16.06.2018.
3.3 It is the case of the petitioner that one
another complaint was also lodged by one
Ratnaben, being I C.R.No.8 of 2018 before the
Marine Police Station, Jafarabad under Sections
307,324,323,143,147,148 and 149 of the Indian
Penal Code and Section 135 of the G.P. Act.
3.4 However, respondent No.4 Taluka
Development Officer initiated the proceedings
for suspending the petitioner under Section 59
C/SCA/12134/2020 JUDGMENT
of the Gujarat Panchayat Act and the District
Development Officer had removed the petitioner
from the post of Sarpanch vide order dated
23.08.2019. Against the said order, the
petitioner had preferred an appeal before the
Additional Development Commissioner, Gujarat
State, Gandhinagar - the respondent No.3 herein
and the same was rejected vide order dated
25.02.2020.
4. Learned advocate Mr.Barot for the petitioner
submitted that the petitioner has been falsely
implicated in the complaint filed by one
Somatbhai Gabhabhai Vaghela against the
petitioner and his relatives. Mr. Barot
submitted that the complaint filed on 18.06.2018
for the alleged incidence which took place on
17.06.2018 was in retaliation to the complaint
filed by the petitioner on 16.06.2018. Mr. Barot
invited the attention of the Court to the manner
and method in which the complaint is lodged and
more particularly, the chargesheet papers
wherein role of the petitioner is described as
having instigated other coaccused persons for
committing offences under Sections 307, 323,
324, 325, 504, 143, 147, 148, 149 of the Indian
Penal Code and Section 135 of the Gujarat Police
Act. Mr. Barot also relied upon the compromise
arrived at between the petitioner and original
complainant which is produced at page no. 67 of
the petition as well as the cross examination of
C/SCA/12134/2020 JUDGMENT
the complainant who has been declared as hostile
by the trial Court.
5. Mr. Barot, therefore, submitted that
ingredient of Section 59(1) of Gujarat Panchayat
Act, 1993 ("the Act" for short) are not
attracted in the facts of the case to suspend
the petitioner from the post of Sarpanch on the
ground of moral turpitude. Mr.Barot also
referred to the impugned order passed by the
District Development Officer, District
Panchayat, Amreli as well as the Development
Commissioner to point out that no reason is
assigned for passing the impugned order as
required under Section 59(1) of the Act.
6. Mr.Barot relied upon the decisions of this Court
in the case of Narabhai Veljibhai Chaudhary V/s.
(Shri) R.S.Vaghela and Others reported in 1996
(2) GLH 251 and judgment dated 1st December, 2005
in the case of Somabhai Bhagwanbhai Gohil V/s.
State of Gujarat and others in Special Civil
Application No.17080/2004. It was submitted by
Mr. Barot that this Court has held that mere
involvement in offence punishable under Sections
323,324 etc., ipso facto cannot constitute
offence involving moral turpitude without there
being any additional material in the complaint.
7. On the other hand, learned advocate Mr. Joshi
appearing for the respondent no.2 - District
Development Officer submitted that petitioner
C/SCA/12134/2020 JUDGMENT
was arrested pursuant to the complaint filed on
18.06.2018 for the offences under sections 307,
323, 324, 325, 504, 143, 147, 148, 149 of the
Indian Penal Code and Section 135 of the Gujarat
Police Act for the alleged incident which took
place on 17.06.2018. Mr.Joshi invited the
attention of the Court to the fact that the
petitioner who is a Sarpanch has failed to
discharge his duties as a role model for the
village people and has been involved in the
criminal activities. It was therefore, submitted
that the impugned order passed by the
authorities are in consonance with the
provisions of the Section 59(1) of the Act.
Mr.Joshi relied upon the following two decisions
in support of his submissions :
1) In the case of Jorabhai Hirabhai Rabari
v. District Development Officer, Mehsana
District and another reported in 1995 (2)
GLH 698 and
2) In the case of Mehta Kaushikbhai Ishwarbhai
V/s. Additional Development Commissioner and
Others, judgment dated 14.7.2010 passed in
Special Civil Application No.8001 of 2010
Mr.Joshi heavily relied upon the paragraph
no.4 of the judgment in the case of Jorabhai
Hirabhai Rabari (supra) to point out that it
is the moral duty of the petitioner not to get
C/SCA/12134/2020 JUDGMENT
himself involved in any offence and in the facts
of the case, the petitioner has instigated other
persons to commit the offences and therefore,
the petitioner cannot be continued as a Sarpanch
of the village and by the impugned order, the
authorities have rightly suspended the
petitioner from the post of Sarpanch till he is
acquitted by the trial Court or till the tenure
of Sarpanch is over, whichever is earlier.
8. Having heard the learned advocates for the
respective parties and having gone through the
materials on record, it is not in dispute that
the petitioner lodged the complaint against one
Somantbhai on 16.06.2018. However, no FIR was
filed by the police upon the complaint given by
the petitioner. It appears that thereafter, a
complaint is filed on 18.06.2018 for the
offences under Sections 307, 323, 324, 325, 504,
143, 147, 148, 149 of the Indian Penal Code and
Section 135 of the Gujarat Police Act for the
incident which took place on 17.06.2018 and the
petitioner was arrested. The petitioner was
therefore, suspended as Sarpanch by the impugned
order dated 23.08.2019 under Section 59(1) of
the Act by the District Development Officer
which was confirmed by the Additional
Development Commissioner of the State of Gujarat
in the appeal filed by the petitioner. On
perusal of the both the orders, it appears that
both the authorities have not given any cogent
C/SCA/12134/2020 JUDGMENT
reason in addition to recording of offences
under sections 307, 323, 324, 325, 504, 143,
147, 148, 149 of the Indian Penal Code and
Section 135 of the Gujarat Police Act, to
justify that the petitioner is required to be
suspended due to moral turpitude. It would
therefore, be germane to refer to Section 59 (1)
of the Act as under:
"59 (1)
The District Development Officer may suspend
from office the Sarpanch or the UpaSarpanch
of a village panchayat against whom any
criminal proceedings in respect of an offence
involving moral turpitude have been instituted
or who has been detained in a prison during
trial for any offence or who is undergoing
such sentence of imprisonment as would not
disqualify him from continuing as a member of
the panchayat under section 30 or who has been
detained under any law relating to preventive
detention for the time being in force."
From the provisions of subsection (1) of
section 59, it is clear that the respondent
no.2 District Development Officer is
empowered to suspend the person against whom
criminal proceedings in respect of offences
involving moral turpitude have been instituted
or who has been detained in a prison during
trial for any offence or who is undergoing
such sentence or imprisonment as would not
disqualify him from continuing as a member of
the Panchayat under Section 30 or who has been
detained under any law relating to preventive
C/SCA/12134/2020 JUDGMENT
detention for the time being in force. In the
facts of the case, the only ground which has
weighed with the respondent authorities for
suspending the petitioner is that against him
the criminal proceedings for the alleged
offences under sections 307, 323, 324, 325,
504, 143, 147, 148, 149 of the Indian Penal
Code and Section 135 of the Gujarat Police Act
have been initiated, resulting into moral
turpitude. However, whether such offences can
be said to be involving moral turpitude or not
is not considered by either of the authority.
9. The issue with regard to whether such offences
amount to moral turpitude is no more resintegra
as held by this Court in the case of Somabhai
Bhagwanbhai Gohil(supra) as under:
"9. In the present case, I find that neither
the District Development Officer nor the
Additional Development Commissioner has
adverted to the aspect whether the
allegations made against the petitioner would
amount to offences involving moral turpitude.
Mechanically both the authorities came to the
conclusion that the petitioner is involved in
offences involving moral turpitude. Mere
involvement in offence punishable Under
Section 323, 324, 504 and 506 of Indian Penal
Code ipso facto would not constitute offence
involve moral turpitude. Without there being
anything additional in the complaint; per se
such offence cannot be categorised as one
involving moral turpitude. In that view of
the matter it would be necessary for the
authorities to examine the nature of
allegations made before concluding whether
C/SCA/12134/2020 JUDGMENT
the offences are such involving moral
turpitude. In the present case the
allegations against the petitioner are of
having entered into some fight with some of
the residents of the village. There is no
element of unethical behaviour of dishonest
or immortal acts. Charges even if proved,
would not amount to conduct which can be
described as inherently base, vile or
depraved. Having thus examined the
allegations made against the petitioner in
the complaint, I find that by no stretch of
imagination it can be said that he is
involved in offences involving moral
turpitude. Mere filing of the complaint was
therefore not sufficient to suspend the
petitioner."
10. In view of the above dictum of law, it
cannot be said that there are criminal offences
against the petitioner involving moral
turpitude, considering the allegations made
against the petitioner in the complaint, as mere
filing of complaint is not sufficient to suspend
the petitioner. With regard to Reliance placed
by Mr.Joshi on decision in the case of Mehta
Kaushikbhai Ishwarbhai (supra), the facts were
different as in the said case, the petitioner
was involved for the offences under Sections 4
and 5 of Prevention of Gambling Act and
therefore, it cannot be said that the person who
is Sarpanch of a village involved in gambling
activities cannot be said to be involved in
criminal offences pertaining to moral turpitude.
However, in the facts of the present case, the
petitioner has been involved for the offences
C/SCA/12134/2020 JUDGMENT
under sections 307, 323, 324, 325, 504, 143,
147, 148, 149 of the Indian Penal Code and
Section 135 of the Gujarat Police Act and more
particularly, on perusal of chargesheet only
allegation is that the petitioner has instigated
the other persons. There is no role attributed
to the petitioner for committing any alleged
offence. Moreover, in the facts of the case,
there is a compromise between the petitioner and
the complainant which is not in dispute.
Therefore, in the facts of the case, the
judgments relied upon by Mr.Joshi is not
applicable. Similarly decision in the case of
Jorabhai Hirabhai Rabari(supra) would also
not be helpful to the respondent as in the said
case, the petitioner who was Sarpanch of Aedla
Gram Panchayat was suspended on the ground of
the criminal proceedings in respect of offence
under Sections 148,149, 324, 504(2), 451 and 307
of the Indian Penal Code and section 135 of the
Bombay Police Act. However, the said offences
were committed by the Sarpanch in the said case
pursuant to the election dispute and in that
context, this Court has held as under:
"4. A person elected as Sarpanch of a Panchayat
holds an important office and the executive
powers for the purposes of carrying out the
provisions of the Panchayats Act and the
resolutions passed by the Panchayat vest in the
Sarpanch who is directly responsible for the
fulfilment of duties imposed upon the panchayat
by or under the Act as provided by Section 55 of
C/SCA/12134/2020 JUDGMENT
the said Act. Therefore, it would be a duty of a
Sarpanch to safeguard the welfare of the
village. The offences of attempted murder,
rioting causing injuries with sharp edged
instrument if committed by Sarpanch who is the
Chief Executive of the village panchayat would
shock the general conscience of the society and
render him unfit to become Sarpanch. The
question whether an offence involves moral
turpitude or not cannot always be judged in
isolation and merely with reference to the
ingredients of an offence. The person who
commits the offence, the person against whom it
is committed, the manner and the circumstances
in which it is alleged to have been committed
and the values of the society are some of the
important factors which are required to be kept
in mind before concluding whether the offence
alleged to have been committed by the person
involves moral turpitude. An offence of simple
injury under Section 323, I.P.C. on the face of
it may not involve moral turpitude but it might
assume a different colour when for instance it
is committed against ones' own teacher or parent
which might shock the conscience of the right
thinking persons. Therefore, the observations
which have been made by the Hon'ble Mr. Justice
B.K. Mehta in Thakorbhai Bhagabhai (supra) to
the effect that it cannot be said that the
alleged offences under Sections 323, 324, 149,
147 of I.P.C. and 135 of the Bombay Police Act
were offences involving moral turpitude in the
sense that the alleged acts can be said to be a
conduct which is contrary to honesty good morals
or unethical since at the most it was an
incident of some scuffle between the petitioner
and other persons alleged to be involved in the
incident are to be read in context of the facts
of that case and did not lay down a straight
jacket formula that irrespective of the manner
in which these offences are committed or against
whom they are committed and the circumstances
under which they are committed; i.e. even
without reference to the facts of the case they
should be treated as offences not involving
moral turpitude. In the present case the
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Sarpanch is charged with attempt to murder being
a member of unlawful assembly and causing injury
with ethal weapon "dharia" to a citizen of the
village. The truth of the allegations is not
required to be gone into in a proceeding under
Section 59(1) and the only question which is
required to be decided by the authority under
that provision is whether a criminal proceeding
is instituted against the Sarpanch in respect of
offences involving moral turpitude. It is not
necessary that the offence should have been
committed in connection with the duties of a
Sarpanch. It can be any offence involving moral
turpitude which would make him unfit to continue
in the office of Sarpanch and the suspension
would be justified. The authorities who have
passed the orders under Sections 59(1) and 59(3)
have therefore acted within the bounds of their
jurisdiction and have made the orders after
giving appropriate opportunity of hearing to the
petitioner. Their conclusion that the offences
which are alleged against the petitioner are
offences involving moral turpitude cannot be
said to be wrong in view of what has been stated
above. The petition is, therefore, summarily
rejected."
11. In the aforesaid case, the Sarpanch was
charged with an attempt to murder being the
member of unlawful assembly causing injury with
lethal weapon being Dhariya. Whereas in the
facts of the case, there is no allegation
against the petitioner except as mentioned in
the chargesheet that he has instigated other
persons for committing offences. It is
reiterated that in the facts of the case there
is compromise between the petitioner and the
complainant. Therefore, it is not necessary that
offence should have been committed in connection
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with the duty of Sarpanch but in the facts of
the case, the offences cannot be said to be
involving moral turpitude which would make the
petitioner unfit to continue in the office of
Sarpanch.
12. It is also pertinent to note that District
Development Officer and Additional Development
Commissioner have failed to give any reason for
suspending the petitioner in the impugned orders
under Section 59(1) of the Act so as to justify
such suspension by taking any additional
material other than the complaint to show that
the petitioner has committed any offence
involving moral turpitude. Merely because the
petitioner was arrested for the alleged offences
could not disqualify the petitioner to hold the
post of Sarpanch.
13. In view of the above facts and
circumstances of the case, the petition deserves
to be allowed and is accordingly allowed.
Impugned orders dated 25.02.2020 and 23.08.2019
are hereby quashed and set aside.
14. Rule is made absolute to the aforesaid
extent. No order as to cost.
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
