PHANI BHUSAN SEN Vs. SANAT KUMAR MAITRA

JUDGEMENT

(1.) The petitioner and opposite parties 1 and 2 stood as candidates for election as commissioners from Ward No. 5 of the Rajshahi Municipality. The election was held on 28th March 1934 and the petitioner was declared elected. He filed his nomination paper on 26th February 1934. It was scrutinised by the Chairman on 3 March 1934 and was found to be in order. At that time an objection was raised to the effect that ha was not eligible for election on the ground that he had been convicted about two years ago under Section 420, I.P.C., and sentenced to a fine of Rs. 500, and detention till the rising of the Court. However the certified copy of the judgment of the Magistrate was not produced at the time with the result that the Chairman held that his nomination paper was in order. Against the action of the Chairman a petition was filed before the District Magistrate of Rajshahi, but the latter refused to enter into the merits of the petition, throwing it out on the ground that it was unstamped. On 6 April 1934 opposite party 1 filed an election petition before the District Judge of Rajshahi and the only ground which was persisted in was that the petitioner was not qualified to stand for election by reason of the provisions of Section 22, sub-8. (2), Bengal Municipal Act (Bengal Act 15 of 1932). That sub-section is in these terms: If any person is or has been convicted by a criminal Court of any such offence as in the opinion of the Local Government involves moral turpitude and which carries with it a sentence for transportation or imprisonment for more than six months, such person shall not, unless the offence of which he was convicted has been pardoned, be eligible for election or appointment for five years from the date of the expiration of the sentence. Provided that on an application made by a person disqualified under this subsection, the Local Government may remove the disqualification by an order made in this behalf.

(2.) An offence under Section 420, I.P.C. carries with it a sentence of imprisonment for more than six months, for the maximum sentence on conviction is seven years. The question therefore is whether the conviction under Section 420, I.P.C., involves moral turpitude, and whether it involves moral turpitude or not is made to depend solely upon the opinion of the Local Government. The election petition remained pending before Mr. S.K. Haldar, District Judge of Rajshahi, for a number of months and during that time the opposite party 1 tried his utmost to obtain from the Local Government an expression of its opinion as to whether the conviction under that section involved moral turpitude. Letters were written and memorials sent but the letter communicating the opinion of the Government did not reach him in time with the result that Mr. Haldar did not give further time and dismissed the election petition on the ground that the opinion of the Local Government that the said conviction involved moral turpitude had not been produced before him.

(3.) Thereafter a notification was issued in the Calcutta Gazette publishing the result of the General Election of the Rajshahi Municipality, and the name of the petitioner along with the names of all the other commissioners elected at the General Election was mentioned therein. On 10 January 1935 the Local Government wrote a letter to the Commissioner of the Rajshahi Division wherein it was stated that conviction of the petitioner of the said offence involved moral turpitude. On the contents of the said letter being made known to the opposite party No. 1 he made an application to the District Judge for reconsideration of Mr. Haldar's order. The said application was treated as an application for review made on the ground of discovery of new and important evidence by Mr. Hattiangadi, District Judge of Rajshahi, who succeeded Mr. Haider, and has been granted by him. By order dated 16 May 1935, Mr. Hattiangadi has set aside the petitioner's election. The petitioner moved against this order and obtained the rule. In my judgment notwithstanding a decision by the Chairman or the District Magistrate that the nomination paper of a candidate for election is in order the District Judge in considering an election petition can go into the question again. Section 38(d) is explicit on the point. I do not therefore see my way to accede to the contention of the petitioner that it was not open to the opposite party No.1 to urge before the District Judge the grounds mentioned in Section 22, sub-S.(2).