Patna High Court
Sarju Prasad Singh vs State Of Bihar And Ors. on 20 September, 1986
Equivalent citations: 1987(35)BLJR691
JUDGMENT S.S. Sandhawalia, C.J.
1. Whether a criminal charge of substantive murder Under Section 302 of the Indian Penal Code involves moral turpitude or not is the somewhat enigmatic question before this Full Bench. Pointedly at issue is the correctness of the Division Bench Judgment in Adya Singh v. The State of Bihar and Ors. C.W.C.J. No. 1373 of 1974 decided on 19-12-74., holding somewhat vacilatingly that it does not.
2. The petioner hails from Village Barhi Dih, and was employed as an Assistant Teacher in the Government Primary School, Hewai under the Keredari Block. On the 29th September, 1984, a first information report, Under Section 302 of the Indian Penal Code and allied offences, was recorded at the Barhi Police Station, pertaining to the murder of one Sarju Sao of Village Barhi Dih. The petitioner was arrested on that charge on the 12th of November, 1984, and, it was not till 3 months later, i.e. on the 12th of February, 1985, that he was enlarged on bail. On the 23rd of May, 1985, the petitioner was served with a charge sheet on two counts, namely, the murder of Sarju Sao of his native village and for remaining absent from the School without any prior information (vide Annexure ' 1'), to which he replied, Respondent No. 1, in the meantime, appointed Shree Jagannath Tripathy, Sub-Inspector Schools, Koderma (Respondent No. 2), as the Inquiry Officer for the departmental proceedings, and placed him under suspension, vide order dated the 21st March, 1986 (Annexure '3'). The petitioner makes some grievance of the delay in the realisation of the administrative proceedings, but the basic thncst of the petitioner is directed to the end that the charge of murder does not involve moral turpitude and, therefore, is beyond the pale of Rule 100 of the Bihar Service Code.
3. At the threshold stage of admission itself, reliance on behalf of the petitioner was placed on Adya Singh v. The State of Bihar and Ors. (supra) which in turn was seriously assiled on behalf of the respondent State. The petition was consequently admitted to hearing by a Full Bench.
4. The controversy herein stems primarily from the language of Rule 100 of the Bihar Service Code, 1952, and, It is, therefore, apt to notice it at the very outset.
Rule 100-A Government servant against whom a criminal charge or a proceeding for arrest for debt is pending should also be placed under suspension by the issue of specific orders to this effect during periods when he is not actually detained in custody or imprisonment (e. g. while released on bail), if the charge made or proceeding taken against him is connected with his position as a Government servant or is likely to embarass him in the discharge of his duties as such or involves moral turpitude. In regard to his pay and allowances, the provisions of Rule 99 shall apply.
Pinning himself with some literality on the language of the aforesaid rule, learned Counsel for the petitioner had contended that Rule 100 mandates suspension only in cases where the criminal charge involves moral turpitude. The firm stand sought to be taken was that though the charge and the offence of murder may be heinous, nevertheless, it is not the one which involves moral turpitude. Submissions were sought to be made on the ground that in exceptional situations a killing of another human being may be justifiable or at least permissible in law.
5. In appraising the aforesaid submission and in construing Rule 100 one may first keep in mind that the said rule is not to be construed in total isolation. Indeed, it has to be read along with its preceding sister Rule 99. That rule provides for an automatic deemed suspension in cases where a Government servant has been arrested on a criminal charge or is detained under any law providing for preventive detention or for debt, during 'he period for which he remains in custody. The complementary Rule 100 provides for the contingency when a Government servant is not actually detained or imprisoned as for example, when released on bail. A plain analysis of Rule 100 would indicate that it comes into play in either of the following three situations:
(i) If the charge made or the proceeding taken against him is connected with his position as a Government servant; or
(ii) Such charge is likely to embarass him in the discharge of his duties; or
(iii) The charge involves moral turpitude.
6. It seems somewhat common ground that herein category (i) would not be attracted, because the accusation of murder against the petitioner is not connected with his position as a Government servant Equally, we have not been addressed at all on the issue whether category (ii) is attracted and the charge of murder may embarass the public servant in the discharge of his duties as such. Consequently, we would not with to opine on this aspect at all. As noticed already, what has been seriously pressed for acceptance on behalf of the petitioner is that even the substantive charge of murder Under Section 302 of the Indian Penal Code does not in essence involve any moral turpitude. Inevitably, the issue herein would turn on the true connotation of the twin words 'moral turpitude'. It is somewhat plain that these cannot be easily put into the Procrustean bed of a precise legal definition. It is appropriate to say that they indeed defy definition. 'Moral turpitude' is a varying and shifting concept, which may well change with different claims or different times. As would perhaps be noticed hereafter, it might even well vary with the status and the standing of the person charged and the context of the transaction from which it is to be inferred. This, perhaps, is the reason that neither any statute nor judicial precedent has attempted any precise definition of this phrase, even though it has often been employed in numerous provisions.
7. Though in the modern approach to interpretative exercise the dictatorship of dictionaries is to be avoided, yet some reference to them still remains inevitable. In Chambers 20th Century Dictionary, the word turpitude, has been given the meaning "baseness: depravity: vileness". The historical base of the word is derived from the Latin word "turpitudo" meaning "turpis, base". The other equally slippery word 'moral' is given the following meaning in the said dictionary : "relating to character or conduct considered as good or evil" ethical : conformed to or directed towards right, virtuous ; especially virtuous in matters of sex ; capable of knowing right and wrong subject to the moral law". In the New Oxford Illustrated Dictionary, the word 'moral' means 'concerned with character or deposition or with the distinction between right and wrong ; morally good, virtuous, righteous" and 'turpitude', 'baseness', depravity, wickedness'.
8. As noticed above, though moral turpitude may rot admit of a strict definition, nevertheless, the broad parameters within which it is employed is yet not in great doubt either on principle or on earlier precedent. Without attempting to be exhaustive, the three basic indicia of 'mom turpitude may be concretized as under:-
(i) Something which is contrary to justice, honesty or good morals and involves a baseness of mind or attitude;
(ii) Which shocks the moral conscience of society in general;
(iii) Something which will attach a depravity of character to the person guilty thereof.
9. At the threshold, the issue is essentially one of approach to the problem of construction, whether it has to be narrowly or constrictedly interpreted or whether it should be given a somewhat liberal connotation. Fortunately, on this aspect there is now the binding precedent in Re ; Mr. 'P' an Advocate AIR 1963 S.C. 1313. Therein, even in the context of the failure of the Counsel to stick to the meticulous high standards of professional conduct, their lordships came to the conclusion that the same would involve moral turpitude. It was observed:
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 moral or is unethical, it may be safely held that it involves moral turpitude.
Once the broad angle of approach is settled, the issue herein seems somewhat easy of solution. Applying the aforementioned three indicia, can it possibly be said that the crime of murder would not come within the ambit of cither of the three categories, in my view, it is, perhaps, covered by each one of them rather than either of them. It is trite saying that murder is contrary to law and justice and equally to good morals Indeed, it is one of, and, undisputably the most serious offence in the penal jurisprudence not in a particular crime, but all over the civilized world. Even in the concept of ancient criminal jurisprudence, the offence of murder had always been classified as mala in so as against merely mala prohibita. From the very down of civilisation, the destruction of human life in all organised societies (except in war and in a defined and limited classes of exception) is a matter of universal disapprobation. It must necessarily be so. To hearken back to the test, it is something which from the very beginning has shocked the moral conscience of society in all claims and in all ages. Equally, in our own criminal jurisprudence, the maximum and ultimate punishment of death is provided by the Indian Penal Code therefor. The quantum of punishment is itself an indication of the social and legal disapproval for this crime. Equally, it appears to me as beyond doubt that murder is a primal crime, which shocks the moral conscience of society in general. The amount of social obloquy which it attract and the moral shocks waves which it generates, would clearly bring it in category (ii) aforesaid. Lastly, I am unable to see how a murderer can be described other than a person of depraved character. To my mind, viewed from any angle and applying any of the three yardsticks, the crime of murder come squarely within the ambit of an offence involving moral turpitude.
10. There is basic fallacy and some patent misapprehension in the sub-mission of the learned Counsel for the petitioner, in confusing the crime of murder with every killing of one human being by the other. This insidious error seems to be not unusual and, therefore, deserves somewhat pointed highlighting. Though murder necessarily involves killing and homicide, yet all killing is not murder. It is a fallacy to equate the two. It is well to recall that the law not only permits, but, indeed, projects and protects a right to cause death even in every private citizen in defence of the human body and of property serious offences against either. Reference in this connection may be made to Section 100 of the Indian Penal Code, wherein six categories of assaults have been expressly enumerated which give the citizen a right of private defence even to the extent of causing death to such an assailant. Similarly, Section 103 enumerates 4 aggravated categories of offences against property which would entitle a citizen to cause and inflict death on a person committing or attempting to commit such offences. A killing covered fully by these provisions, far from being an offence, is patently approved by the law as a measure of self-reliance by the citizen to stand up to attack against the right to life and property. In such a situation, the alleged accused person, far from being guilty of murder or any miner offence, is indeed entitled to an honourable acquittal. Apart from the right of private defence, extending sometime to cause death the other general exceptions under Chapter IV of the Penal Code may also excuse homicide. It would thus be a patent fallacy to equate the substantive charge of murder with any and every killing.
11. Indeed herein we are concerned with the charge of murder in its true legal sense. When Rule 100 talks of a criminal charge, it is not an abstract, but in the concrete form of a pending proceeding or allegation levelling such a criminal charge. Inevitably, one has to turn to the relevant provisions of Sections 299 and 300 and of Section 302, providing the punishment for murder Contained in Chapter XVI of the Indian Penal Code, pertaining to the offences affecting human body. The line of distinction that divides culpable homicide from the ultimate offence of murder is somewhat thin and a matter of deep intricacy, into which it is unnecessary to delve and be bogged down in the present case. It suffices to mention that the true concept of murder, as spelt out by the Code is a matter of some complexity. Section 299 first defines what is culpable, homicide, with three illustrations and three explanations thereto. The succeeding Section 300 then spells out the aggravated forms of culpable homicide, which would amount to murder. These are precisely laid out in Clauses (1), (2), (3) and (4) of Section 300. Out of these, five exceptions are then carved out, which would again take the offence out of the ambit of murder, and reduce them to only culpable homicide. These are then detailed in exceptions 1, 2, 3, 4 and 5 to Section 300. It is against this context that a change of murder has to be viewed and construed. When in legal terms one talks of a murder charge, then what is precisely indicated is that the offence comes squarely within the four clauses of Section 300, and, further that it is not excluded therefrom by coming within any of the five exceptions thereto. It is only in this sense alone that a criminal charge of murder is to be understood as the ultimate crime against the human body by extinguishing the very life therefrom.
12. Having exhaustively discussed the matter on principle, one might as well advert briefly to precedent. In Durga Singh v. Stale of Punjab A.I.R. 1957 Punj 97, Bishan Narain, I., observed as follows ;
After all, the term 'moral turpitudes' is a 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 a fellow-man or to society in general. It has never been held that gravity of punishment is to be considered in determining whether the misconduct involves moral turpitude or not.
On the aforesaid premise, his Lordship went on to hold that a member of a Police Force, who was habituated to liquor and was found drunk and abusive in a public place and held guilty Under Section 34 (6) of the Police Act, 1861, was an offence involving moral turpitude.
13. In Baleshwar Singh v. The District Magistrate and Collector of Banaras and Ors. , taking a similar view it was held that even an offence Under Section 182 of the Indian Penal Code would well come within the ambit of a conviction involving moral turpitude. In Mangali v. Chhakhkhi Lai and Ors. , on which reliance was placed by learned Counsel for the petitioner, the broad proposition of law with regard to moral turpitude was adhered to. However, it was rightly pointed out that any and every act punishable in law is not an offence involving moral turpitude. On that premise, it was rightly held that the mere possession of one Tola of Bhang by a person for medicinal use, in the District of Kanpur, where it was totally banned, and the consequent conviction Under Section 60 (a) of the Excise Act, punished with a paltry fine of 10/- therefor, was not one which involved moral turpitude. 1 am unable to find anything in the said case which can possibly aid or advance the stand taken on behalf of the petitioner.
14. It remains to advert now to the Division Bench Judgment of this Court in Adya Singh v. The State of Bihar (supra). Undoubtedly, the observations therein go materially in aid of the petitioner's stand, and, indeed, it was the correctness of that view, which has necessitated this reference. A close perusal of the short judgment and the brief observations made therein would indicate that the issue was not adequately canvassed before the Bench by the learned Counsel for the parties. The binding precedent in Mr. 'P' an Advocate (supra), was not brought to the notice of the Bench and the precise question of a liberal construction thus seems to have been missed, the earlier case in Durga Singh v. The State of Punjab (.supra) and in baleshwar Singh v. The District Magistrate and Collector of Banaras and Ors. (supra), did not come up for pointed consideration. However, what appears to me as the basic error that seems to have been insidiously crept in that judgment is that it again missed the legal distinction between any and every killing and a specific charge of substantive murder Under Section 302. This aspect has already been dealt with in some detail in the earlier part of this judgment. With the deepest respect to the learned Judges of the Division Bench, it has to be held that the law has not been correctly laid down by them and the same is hereby overruled.
15. To conclude on the legal aspect, the answer to the question posed at the outset is rendered in the affirmative and it is held that the criminal charge of substantive murder Under Section 302 of the Indian Penal Code involves moral turpitude.
16. Before parting with this judgment one must in fairness notice an argument of desperation advanced by the learned Counsel for the petitioner in the end, it was sought to be argued that even assuming that murder involves moral turpitude, yet at the present stage only a criminal charge of murder has been levelled and not established. Counsel contended that in view of the possibility of acquittal, or of a conviction on the lesser charge, the offence may or may not involve a moral turpitude, and, consequently, Rule 100 would still not be often.
17. This submission has perhaps, to be only noticed and rejected. What Rule 100 requires is not a conviction of a criminal charge or the same being established as such. All that is envisaged by the statute in term is that against the government servant a criminal charge should be pending. It does not even remotely conceive of a conviction. Plainly enough, on a conviction of criminal charge other stringent results would follow. As was noticed at the outset, when Rule 99 and Rule 100 are construed together, they visualise only the pendency of a criminal charge against the public servant for the purpose of either an automatic deemed suspension or a mandated specific order therefor. To accept the contention of the learned Counsel would in effect be rendering the provisions of Rule 100 as totally redundant, because, at the initial stage of a criminal charge being pending, there is no question of the same being either established or of a conviction thereon. Rule 100, therefore, has to be construed on the mere pendency of the criminal charge and not on any of the same being proved or established. The last submission, of the learned Counsel, must therefore, fail.
In the light of the aforesaid findings, the present writ must, therefore, fail and is hereby dismissed. However, in view of the conflict of precedent within this Court, we leave the parties to bear their own costs.
M.P. Verma, J.
18. I agree.
U.P. Singh, J.
19. I agree.