G.C. Das, J.
1. This is an application under Article 226 of the Constitution challenging the order of the ElectionOfficer, Gram Panchayat Elections, Aska Taluk in the district of Ganjam, rejecting the nomination paper of the petitioner lor election to the Gunthi-poda Gram Panchayat.
2. The facts leading upto this application are these: The petitioner filed his nomination paper for contesting the election from Ward No. 2 to the aforesaid Gram Panchayat. Opposite Party No. 2, Bhagaban Swain during the scrutiny of the nomination papers objected to the candidature of the petitioner on the ground that he had been sentenced to imprisonment for a period exceeding three months under Sections 506 and 143 Indian Penal Code, in G. R. Case No. 9 of 1948 by the Special first class Magistrate, Aska. In fact the petitioner was convicted for a period of three months under Section 506 and for further period of one month under Section 143 of the Indian Penal Code.
The Magistrate, however, while thus convicting the petitioner, directed the sentences to run concurrently. His further objection was that the offence of which the petitioner stood convicted involved 'moral turpitude'. It was also contended that the petitioner's nomination paper was previously rejected by the Election Officer, Aska, On the aforesaid grounds on March 20, 1956. The petitioner, doubtless, admitted the conviction and sentence under Sections 506 and 143 Indian Penal Code. But his contention was that in view of the concurrent nature of the sentence, it Cannot be said that he had been sentenced to an imprisonment for a term exceeding three months and the offence, in fact, did not involve any 'moral turpitude'.
Thus, his whole cast: was that the aggregate of sentences under two different counts each not exceeding the limit of three months cannot be a ground for disqualification under Section 9(1) (e) of the Orissa Gram Panchayat Act, 1948 (Orissa Act XV of 1948); (hereinafter referred to as the Act). It was further pointed out that ten years had now elapsed from the date of conviction and the case was of a political nature arising out of tenants' agitation against the forest department of Dharakote Estate.
The judgment in G. R. Case No. 9 of 1948 being Ext. B, was filed before the Election Officer. On a consideration of the facts and circumstances of the case, the said Officer came to the conclusion that the petitioner was sentenced to imprisonment for a term exceeding three months and it involved 'moral turpitude' and accordingly he disqualified the petitioner for being a member of the Gram Panchayat, and eventually rejected his nomination paper.
3. A counter affidavit was filed by the election officer in this Court in which it is stated that the petitioner was actually convicted for a period exceeding three months inasmuch as the words 'an offence' in Clause (e) of Sub-section (1) of Section 9 of the Act also includes aggregate of offences. He further averred that the petitioner was convicted of an offence which involved moral turpitude like the offences of breach of trust, theft, cheating and rape, and anything done contrary to justice, honesty and principles of good morals and an act of baselessness, vileness or depravity in the private and social duties which a man owes: to the fellow men or to a society in general contrary to the accepted and customary rule of right and duty between man and man. No counter, however, was filed by the opposite party No. 2.
4. Arguments at the Bar were two-fold: (1) that the petitioner was not sentenced to imprisonment for a term exceeding three months for anoffence and (2) that the offence did not involve any moral turpitude. It was argued that the petitioner is entitled to succeed on either of the grounds, and accordingly, the learned Counsel addressed us on the first question only. Whether an offence involves 'moral turpitude' or not is rather a difficult question and in view of the paucity of decisions we would like to leave it open for the present.
Hence the sole question for determination is whether the petitioner was or was not sentenced to imprisonment for a term exceeding three months in order to entail the disqualification within the meaning of Section 9(1) (e) of the Act. Thus, ultimately the question dissolves to tins; whether the concurrent sentences passed in the aforesaid criminal case amount to aggregate sentence for purposes of Section 9(1)(e) of the Act.
5. Before dealing with the aforesaid question, I would like to refer to certain relevant sections in the Act itself. Section 7 provides that there shall be for every Gram Sasan a Gram Panchayat and the powers, duties and functions of the Gram Sasan shall be exercised, performed and discharged by the said Gram Panchayat. Section 114(2) empowers the Provincial Government to frame rules regarding the establishment of Gram Panchayat, Adalati Pan-chayats, qualifications of a Sarpanch and a Naib Sarpanch and the procedure for conducting elections of the Gram Panchayat, Sarpanch and Naib Sarpanch and the Adalati Panchayat.
Section 9(1) deals with the preparation of registers in the prescribed form by the prescribed authority -- one of population of persons ordinarily residing in the Grama and the other of adults ordinarily residing therein. Clause (e) of Sub-section (1) of Section 9 lays down that the name of an adult shall not be included in the register of adults if he has been sentenced to imprisonment for a term exceeding three months for an offence involving moral turpitude or ordered to give security for good behaviour under Section 110 of the Code of Criminal Procedure. 1898.
6. Even if the offences under Sections 506 and 143, I.P.C. are taken to be 'an offence' (singular including plural within the meaning of the Orissa General Clauses Act), the question which yet remains to be considered is whether the petitioner had been sentenced to imprisonment for a term exceeding three months. In this connection the provisions of the Code of Criminal Procedure appear to bo pari materia with the provisions of the Act and those principles, in my opinion, would apply with equal force to this Act.
Section 35(3) of the Code of Criminal Procedure lays down that for purposes of appeal, aggregate of consecutive sentences passed under this section in case of convictions for several offences at one trial shall be deemed to be a single sentence. In this connection reference also may be made to Sections 413 and 415 of the Code. There seems to be a great divergence of opinion on the question whether concurrent sentences of imprisonmen' can be aggregated under Section 415 for escaping the bar of Sections 413 and 414 of the Cr. P. C. as it stood before the amendment of 1923.
The amendment of Section 35 in 1923 has now settled the point by upholding the view that the sentences ordered to run concurrently could not be aggregated. The Calcutta High Court in their two-earlier decisions Bipin Behari Dev v. Emperor, 15 Cal WN 734 and Abdul Khalck v. Emperor, 17 Cal WN 72, took the view that the sentences even when concurrent must foe taken in the aggregate or added up together for purposes of appeal. Thisview was not only met with disapproval by the Calcutta High Court in their later decision in Sheik Aziz v. Emperor, 17 Cal WN 825, but was also dissented from by the Allahabad, Bombay and Pat-na High Courts.
The earliest case on this behalf appears to be the case of Emperor v. Tulsiram, ILR 35 All 154. Tudbail J. in that case did not follow the decision in 1.7 Cal WN 72 but preferred to follow the decision of the Bombay High Court jn Emperor v. Tulsidas Lakshman, 11 Bom LR 544. Thus, it was held that the term 'aggregate sentence' as used in Sub-section (3) of Section 35 of the Code of Criminal Procedure applies only to consecutive and not to concurrent sentences.
The reason given by the learned Judge Was that the term 'aggregate' implies adding together of separate items and where sentences are concurrent there is no such aggregation. The question again came up for consideration before the Paina High Court in the well known case of Gursahay Ram v. Emperor, 3 Pat L J 138: (AIR 1917 Pat 33). In that case the question that arose for consideration was 'Do concurrent sentences come within the expression 'aggregate' punishment for purposes of Section 35 of the Code of Criminal Procedure?' Ma-lik J. relying on the decision in 17 Cal WN 825 and ILR 35 All 154, held that the term 'aggregate sentence' in Section 35 (3) of the Code of Criminal Procedure, 1898, applies only to consecutive and not to concurrent sentences. Thus it is clear that concurrent sentences preclude the idea of an aggregate sentence.
This decision in 3 Pat LJ 138: (AIR 1917 Pat63) along with the decisions in ILR 35 All 154 and 17 Cal WN 825 was followed in a later decision of the Calcutta High Court in the case of Abdul Tatar v. Emperor AIR 1921 Cal 152 (1). Their Lordships of the Calcutta High Court after having reviewed all the previous decisions of their Court did not prefer to follow the earlier decisions in 15 Cal WN 734 and 17 Cal WN 72, but followed the later decision of their Court in 17 Cal WN 825 along with the Patna and Allahabad decisions referred to above.
7. From the above discussion it is clear beyond doubt that the sentences under Sections 506 and 143 I.P.C. having been directed to run concurrently cannot be taken together for purposes of Section 9(1) (e) of the Act when it cannot be aggregated for purposes of an appeal. Thus, we are clearly of opinion ihat the petitioner in this case cannot come within the mischief of Section 9(1) (e) of the Act and accordingly the order of the Election Officer, Gram Panchayat Elections, Aska Taluk cannot be maintained. Hence the petitioner is entitled to a declaration ihat he is qualified for contesting the election under the Act as his nomination paper is otherwise in order.
8. Under Rule 9 of the Orissa Gram Panchayat Rules, 1949, the decision of the Election Officer rejecting the nomination paper is final and there is no machinery provided under the Rules for challenging the election of the successful candidate. Hence even the improper rejection of a nomination paper is left without any remedy. In this case we find that the election from Ward No. 2 of the Gunthipoda Gram Panchayat is thus vitiated due to improper rejection of the nomination paper of the petitioner and accordingly the election from that Ward must be held to be void in the eye of law.
9. In the result, the order of the election officer dated 26th April, 1958 is set aside, the nomination paper of the petitioner is declared to bevalid and the petition is allowed with costs. Hearing fee is assessed at Rs. 50.
R.L. Narasimham, C.J.
10. I agree.