Gujarat High Court
Manabhai Hipabhai Jhajada vs Additional Development Commissioner on 2 August, 2021
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/10735/2021 ORDER DATED: 02/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10735 of 2021
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MANABHAI HIPABHAI JHAJADA
Versus
ADDITIONAL DEVELOPMENT COMMISSIONER
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Appearance:
MR VINOD M GAMARA(5910) for the Petitioner(s) No. 1
NILESH J GOSAI(7325) for the Petitioner(s) No. 1
MS URMILA DESAI AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 02/08/2021
ORAL ORDER
1. By this petition, the petitioner has prayed for quashing and setting aside the orders dated 17.05.2021 and 14.09.2020 passed by the Additional Development Commissioner, Gandhinagar as well as District Development Officer, Bhavnagar respectively whereby, the petitioner has been suspended from the post of Sarpanch on the ground that the criminal proceeding in respect of the offence involving moral turpitude has been instituted against him.
2. The facts are to the effect that on 10.03.2020, one Shri Rameshbhai Devshibhai Chauhan, the complainant (hereinafter referred to as the 'complainant'), has lodged the First Information Report No.11198035200340 with Mahuva police station, District:
Bhavnagar (hereinafter referred to as the 'F.I.R.') for the offences punishable under Sections 323, 504 and 114 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Atrocities Act').
2.1. The case of the complainant is to the effect that during a social function, the complainant and his elder brother had gone to Page 1 of 10 Downloaded on : Sun Jan 16 05:25:39 IST 2022 C/SCA/10735/2021 ORDER DATED: 02/08/2021 the village where, the festival of Holi was being celebrated with D.J. The complainant, his elder brother and one another, were standing nearby, at that time, the Sarpanch and other two persons came on the motorbike, asking the complainant as to what are they doing and hurled abusive language. It is also alleged that the Sarpanch caught hold of the complainant, and one Bharatbhai, who was having the iron pipe, inflicted injuries on the left leg of the complainant. Similarly, the other two persons have also inflicted injuries. After filing of the FIR., chargesheet has also been filed;
during the investigation, it has been revealed that the accused nos.1 to 3, mentioned in Column No.11 in the said chargesheet, had come to the place of incident and have given fist blows to the complainant, as a result whereof, the complainant had suffered injuries.
2.2. Apropos the registration of the aforesaid FIR., notice dated 10.08.2020 came to be issued to the petitioner, fixing the date of hearing on 20.08.2020, when the petitioner submitted his reply. After considering the reply of the petitioner, the District Development Officer, Bhavnagar has passed the order dated 14.09.2020. In appeal before the Additional Development Commissioner, the order dated 14.09.2020 of the District Development Officer, came to be confirmed. Being aggrieved, the petitioner has filed the present writ petition challenging both the orders dated 14.09.2020 and 17.05.2021.
3. Mr.V.M. Gamara, learned advocate for the petitioner submitted that both the authorities have observed that the commission of the offence under the Atrocities Act, constitutes an offence of moral turpitude. It is submitted that the FIR has been filed, followed by filing of the chargesheet; however, the petitioner neither remained in the police custody nor in the judicial custody Page 2 of 10 Downloaded on : Sun Jan 16 05:25:39 IST 2022 C/SCA/10735/2021 ORDER DATED: 02/08/2021 and therefore, the elements required under Section 59(1) of the Gujarat Panchayats Act, 1993 (hereinafter referred to as the 'Act of 1993') are not present. While inviting the attention of this Court to the details mentioned in the chargesheet, it is submitted that the petitioner was not arrested in view of the amendment in the Code of Criminal Procedure and therefore, he having not remained either in the police custody or in the judicial custody, the authorities concerned could not have passed the orders suspending the petitioner. It is submitted that so far as the allegation under the Atrocities Act is concerned, the same does not fall within the term of 'moral turpitude'. Similarly, the offence of moral turpitude does not come out from the contents of the FIR inasmuch as, the petitioner has acted as a Sarpanch and not committed any act or offence under the Atrocities Act.
3.1. Reliance is placed on the judgment of this Court in the case of Aatulbhai Tapubhai Nakum vs. State of Gujarat reported in 2016(2) GLR 1007. It is submitted that this Court has observed and held that in ordinary circumstances, only the nature of offences alleged would be relevant to decide, that is, whether alleged act would amount to moral turpitude so as to call for an action of suspension under Section 59 of the Act of 1993. It has been held that when there are other circumstances, notice of which, if could be taken from the materials available, which may require consideration to decide whether the action of suspension under Section 59 of the Act of 1993 is warranted, the competent authority may be obliged to consider such circumstances before taking any action under Section 59 of the Act of 1993. It is submitted that this Court has held that the alleged offence under the Atrocities Act may amount to moral turpitude or not but, even then without going into the veracity or otherwise of the allegations in the complaint, the competent authority is under obligation to consider other relevant factors Page 3 of 10 Downloaded on : Sun Jan 16 05:25:39 IST 2022 C/SCA/10735/2021 ORDER DATED: 02/08/2021 presented by the person facing action of suspension.
3.2. It is submitted that the respondent authorities have also not considered the fact that some persons of the particular community had an altercation with each other; when it came to the knowledge of the petitioner, the petitioner went to the place only with a view to resolving the dispute. However, the complainant has lodged the false complaint. It is submitted that the petitioner has brought the fact that he was performing his duties as a Sarpanch and the authorities concerned have not considered the same and proceeded to pass the orders under Section 59(1) of the Act of 1993. It is submitted that the necessary proceeding has been taken out for quashing of the FIR under Section 482 of the Code of Criminal Procedure.
3.3. It is therefore, submitted that the orders passed by the authorities below are not in tune with the provisions of Section 59(1) of the Act of 1993, deserving interference by this Court.
4. Heard Mr.Vinod M. Gamara, learned advocate for the petitioner.
5. It is well settled that the Sarpanch is an executive head of the village, conferred with the executive powers for the purpose of carrying out the provisions of the Act, is expected to act in a responsible manner. As is discernible from the FIR, the allegation made against the petitioner is that he reached at the place where, the festival of Holi was being celebrated, when he caught hold of the complainant and the another person had inflicted injuries with iron pipes on the left leg of the complainant and injuries to others. The chargesheet has been filed wherein also, the aspect of involvement of the petitioner is very much mentioned.
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6. The District Development Officer had issued notice and the petitioner has filed his reply dated 20.08.2020. The said reply dated 20.08.2020 is not placed on record but, the contents have been reproduced by the District Development Officer in his order dated 14.09.2020. The reply merely states that the chargesheet which has been filed by the Investigating Officer is one sided and that the petitioner has no criminal antecedent and the petitioner is on bail in the present case. It is stated that the offence has not been proved and issuance of notice is bad. The District Development Officer, after considering the reply of the petitioner, has observed that the petitioner being an executive head of the village, it is expected of the petitioner to behave in a responsible manner, instead, the petitioner, while hurling caste abuses, insulted the complainant in public and also inflicted injuries. Such conduct is not befitting to the post of Sarpanch. It has also been stated that apropos the commission of offence, the criminal proceedings have been initiated, lodging the FIR followed by filing of the chargesheet. The District Development Officer has placed reliance on the judgment of this Court in the case of Thakor Daragaji Nadhaji vs. State of Gujarat rendered in Special Civil Application No.13950 of 2009, wherein, it has been observed in para 7 as under:-
7. Identical question came to be considered by the learned Single Judge in the case of Gopalbhai Khemchanddas Patel Vs. District Development Officer And Others rendered in Special Civil Application No.1134 of 2010 and the learned Single Judge has occasion to consider the decisions relied upon by the learned advocate for the petitioner referred to hereinabove and the learned Single Judge also considered the following observations made by the learned Single Judge in the case of Jorabhai Hirabhai Rabari (supra), the learned Single Judge has observed as under:
"4. ............. Therefore, it would be a duty of a Sarpanch to safeguard the welfare of the village. The offences of attempted murder, rioting, causing injuries Page 5 of 10 Downloaded on : Sun Jan 16 05:25:39 IST 2022 C/SCA/10735/2021 ORDER DATED: 02/08/2021 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 IPC on the face of it may not involve moral turpitude but it might assume a different colour when for instance it is committed against one's 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 IPC 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 on 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 straitjacket formulae 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. .............................. 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............."
Considering the aforesaid decisions and when a prima facie case is made out against the petitioner for the offence punishable under Sections 323,324,326, 504, Page 6 of 10 Downloaded on : Sun Jan 16 05:25:39 IST 2022 C/SCA/10735/2021 ORDER DATED: 02/08/2021 506(2) and 114 of IPC and 135 of the Bombay Police Act and the petitioner has been chargesheeted and the manner in which the offence is alleged to have been committed by the petitioner along with others, it cannot be said that any illegality has been committed by the respondent in suspending the petitioner under Section 59(1) of the Gujarat Panchayat Act, which calls for the interference of this Court in exercise the powers under Articles 226 & 227 of the Constitution of India.
7. This Court has held that when a prima facie case is made out for the offences under Sections 323,324,326,504,506(2) and 114 of the Indian Penal Code, 1860 and Section 135 of the Bombay Police Act, 1951 and the Sarpanch is chargesheeted, it cannot be said that any illegality has been committed by the authorities while passing the order, calling for the interference of this Court in exercise of powers under Articles 226 and 227 of the Constitution of India. The District Development Officer having considered the reply of the petitioner, so also the aforestated order passed by this Court, suspended the petitioner by exercising the powers under Section 59(1) of the Act of 1993.
8. In the appeal, the Additional Development Commissioner, after considering the reply of the petitioner, has taken note of the registration of the FIR under the provisions of the Indian Penal Code as well as the Atrocities Act. The Additional Development Commissioner, while referring to the provisions of Section 59(1) of the Act of 1993 and the facts of the case, has observed that the order dated 14.09.2020 passed by the District Development Officer does not deserve any interference as the same is in conformity with the provisions of Section 59(1) of the Act of 1993.
9. Before concluding, the judgment cited by the learned advocate for the petitioner in the case of Aatulbhai Tapubhai Nakum (supra); needs a brief reference. The said judgment does not help the petitioner considering the circumstances and the manner of the Page 7 of 10 Downloaded on : Sun Jan 16 05:25:39 IST 2022 C/SCA/10735/2021 ORDER DATED: 02/08/2021 commission of offence in the present case. The facts were different. Para 7 of the said judgment reads as under:-
"7. Having heard learned advocates for the parties, it appears that based on the FIR registered as C.R. No.I-47 of 2014 lodged with Rajula Police Station for the offences 323, 324, 394, 504, 506(2) and 114 of the Indian Penal Code, Sections 3,5,10,3(2), 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act and Section 135 of the Gujarat Police Act on 26.5.2014, action under Section 59 of the Act was initiated against the petitioner. In ordinary circumstances, only the nature of offences alleged would be relevant to decide whether alleged acts would amount to moral turpitude so as to call for action of suspension under Section 59 of the Act. However, when there are other circumstances, notice of which if could be taken from the materials available, which may require consideration to decide whether the action of suspension under Section 59 of the Act is warranted, the competent authority may be obliged to consider such other circumstances before taking action under Section 59 of the Act. The alleged offences under the Atrocity Act may amount to moral turpitude but even then without going into the veracity or otherwise of the allegations in the complaint, the competent authority is under obligation to consider other relevant factors presented by the person facing action of suspension. The petitioner in his reply to the show cause notice has well presented such relevant aspects for consideration by the competent authority. The petitioner has pointed out that he had moved Gujarat Pollution Control Board, as a result of which the Unit of the informant was closed on finding that the Unit was causing pollution and the electric connection of the Unit was also disconnected. The petitioner has also stated that he was threatened of dire consequences by the informant, for which he represented before various authorities to take necessary action and filed complaint only thereafter, the petitioner was issued legal notice by informant for filing criminal complaint under the Atrocity Act. The Court finds that such facts stated in the reply are supported by the documents presented by the petitioner. However, on perusal of the impugned order dated 24.9.2014 passed by the respondent No.3, it appears that though action taken by the petitioner as a Sarpanch for closure of the Unit run by the informant and the complaint filed by the petitioner has been taken note of, however such facts are not given much importance on the ground that the petitioner remained in custody between 29.5.2015 and 4.6.2014 and the offences alleged are of moral turpitude. It appears that further fact which has weighed with respondent No.3 is of filing the charge-sheet in connection with the FIR Page 8 of 10 Downloaded on : Sun Jan 16 05:25:39 IST 2022 C/SCA/10735/2021 ORDER DATED: 02/08/2021 lodged by the informant."
10. It is in the said circumstances, this Court has held that in ordinary circumstances, only the nature of offences alleged could be relevant to decide whether alleged acts would amount to moral turpitude so as to call for action of suspension under Section 59 of the Act of 1993. However, when there are other circumstances, notice of which, if could be taken from the materials available, which may require consideration to decide whether the action of suspension under Section 59 of the Act of 1993 is warranted, the competent authority will be obliged to consider such other circumstances before taking action under Section 59 of the Act of 1993. As is discernible from the record, there are no such circumstances available, on the contrary, from the contents of the FIR and chargesheet, it can be seen that the offence has been committed under the provisions of the Indian Panel Code, so also the Atrocities Act, constituting moral turpitude.
11. Therefore, considering the nature and circumstances, the facts as alleged in the F.I.R., the authorities concerned have concurrently held and observed that the petitioner has committed the offence, constituting moral turpitude inasmuch as the petitioner has hurled abuses against the complainant, not only that, also with the help of two other persons, inflicted injuries to the complainant. Considering the facts and circumstances of the case, namely, registration of the F.I.R., followed by filing of the chargesheet as well as the judgment of this Court rendered in the case of Thakor Daragaji Nadhaji (supra), this Court is of the opinion that no error has been committed by the authorities concerned in passing the orders under the provisions of Section 59(1) of the Act of 1993. Also, the orders have been passed after affording appropriate opportunity to the petitioner and therefore, the conclusion arrived at by the Page 9 of 10 Downloaded on : Sun Jan 16 05:25:39 IST 2022 C/SCA/10735/2021 ORDER DATED: 02/08/2021 authorities concerned that the offence alleged against the petitioner is the offence, which constitutes moral turpitude is in conformity with the material available on record and no error can be said to have been committed by them.
12. Therefore, as discussed hereinabove, the present petition deserves to be rejected and is accordingly rejected in limine. No order as to cost. Needless to mention that the observations made in the present order shall not come in the way of the petitioner at the time of trial, since the same are with respect to the procedure under the Act of 1993.
(SANGEETA K. VISHEN,J) Hitesh Page 10 of 10 Downloaded on : Sun Jan 16 05:25:39 IST 2022