07 May 1996
Supreme Court


Case number: C.A. No.-007796-007796 / 1996
Diary number: 9632 / 1995






DATE OF JUDGMENT:       07/05/1996


CITATION:  1996 SCC  (4)  17        JT 1996 (5)   155  1996 SCALE  (4)480



JUDGMENT:                       J U D G M E N T Punchhi. J.      Special leave granted.      This appeal is directed against the judgment and decree of the  Punjab and  Haryana High Court passed on October 31, 1994 in Regular Second Appeal No.3756 of 1987. It has arisen on these facts:      The appellant,  Pawan Kumar on 19-4-78 was appointed in a class  IV post  as a Field Worker, on ad hoc basis, in the office of  the  Chief  Medical  Officer,  General  Hospital, Bhiwani, Haryana.  In his  terms of  appointment it was made clear that the ad hoc appointment offered was till such time his character and antecedents were verified as satisfactory, when he  would be considered for regular appointment. He was required to  give a  declaration in writing that he had not, on any  previous occasion,  been dismissed  from service and had  not   been  convicted   by  any   court  of  law.  This declaration, the appellant presumably furnished.      While in  service, the appellant on 4-6-1980 came to be convicted in  a summary  trial for offence under section 294 IPC by  the Court  of Shri  P.L.  Khanduja,  Chief  Judicial Magistrate, Bhiwani  on his  entering upon  a plea of guilt, for which  he was  ordered to  pay a  fine of Rs.20/-, which fine he  paid there and then, whereafter it was deposited in the treasury  by the Chief Judicial Magistrate the same day. The appellant’s  appointment however,  in the  meantime  was kept renewed from time to time.      When steps  were  afoot  to  regularize  his  services, papers were  moved to  the office  of the  Superintendent of Police to  verify about the character and antecedents of the appellant.  The  office  of  the  Superintendent  of  Police reported back  the factum  of conviction  of  the  appellant under section  294 IPC,  but  otherwise  verified  that  the appellant was  of good  character. Thereafter the opinion of the District  Attorney, Bhiwani  was sought.  He opined that



the offence  punishable under  section 294  IPC  was  not  a serious offence  which could involve moral turpitude and the sentence of fine of rs.20/- imposed on the appellant was not likely to  embarrass him  in the discharge of his duties and therefore there  was no  legal  bar  for  his  retention  in service. A  reference was also made to the Legal Remembrance to the  Government of  Haryana, soliciting his opinion. This officer opined that it would not be desirable to appoint the appellant in  government service since he had been convicted under  section  294  IPC,  involving  an  offence  of  moral turpitude, as  otherwise the very purpose of verification of character/antecedents would be frustrated. On the collection of such material, decision was taken and the services of the appellant were  terminated vide order dated 30-9-1984, as no longer required.      Challenging this  order the  appellant went in suit for Declaration before  the Civil  Court, describing  the  order terminating  his  services  as  against  law,  equity,  good conscience, and  violative of principles of natural justice, claiming that  he continued to be in service entitled to all benefits of  service including salary etc. The State and the Chief  Medical   Officer  resisted   the  suit.   The   only contentious issue  which sprung up from the pleadings of the parties was:      "Whether the  order dated 30-9-1984      about the termination of service of      the plaintiff is wrong, illegal and      liable to be set aside as alleged?"      The trial  court decided  the said  issue  against  the appellant. The  lower appellate court on appeal affirmed the same. The High Court too in second appeal concurred with the decision of  the courts  below, basically  on  two  grounds, namely, (i)  that the  conviction  of  the  appellant  under section 294  IPC revealed  an act  which per  se constituted moral turpitude;  and  (ii)  the  order  of  termination  of service,  bare  facedly,  on  its  plain  language  was  not stigmatic. All  the  same  it  was  never  disputed  by  the defendant-respondents   that   since   the   character   and antecedent verification  had revealed  the conviction of the appellant under Section 294 IPC, that was the reason why the services of  the  appellant  were  dispensed  with  and  mot regularized. Hence this appeal.      Section 294 of the Indian Penal Code reads as follows:      "294.  Obscene   acts   and   songs      Whoever,  to   the   annoyance   of      others,      (a) does  any obscene  act  in  any      public place, or      (b) sings,  recites or  utters  any      obscene songs,  ballad or words, in      or near any public place,           shall   be    punished    with      imprisonment of  either description      tor a  term  which  may  extent  to      three months, or with fine, or with      both.      In order  to secure a conviction the provision requires two particulars  to be  proved by  the prosecution, i.e. (i) the offender has done any obscene act in any public place or has sung,  recited or  uttered any obscene songs or words in or near  any public  place; and (ii) has so caused annoyance to others.  If the  act complained  of is not obscene, or is not done in any public place, or the song recited or uttered is not  obscene, or  is not  sung, recited  or uttered in or near any  public place,  or that  it causes  no annoyance to



others,  the  offence  is  not  committed.  The  measure  of sentence of three months impossible thereunder suggests that such offence  is tribal  summarily under  Section 260 of the Code  of   Criminal  Procedure,  it  being  not  an  offence punishable with death, imprisonment for life or imprisonment for a  term exceeding  two years.  When the accused does not plead guilty,  Section 264 of the Code of Criminal Procedure enjoins upon  the Magistrate  that he  shall (i)  record the substance of  the evidence; and (ii) a judgment containing a brief statement  of the  reasons for the finding. Conversely put, when  the accused pleads guilty, the Magistrate may not be obliged  to write a judgment containing a brief statement of the  reasons, but  the Magistrate  is not absolved of the obligation  to   record  the   substance  of  the  evidence. Otherwise, it  would be  difficult to  conceive as  to  what could the  accused have  pleaded to. His plea of guilt is an admission to  whatever factual  data  the  prosecution  lays before the  court  about  the  commission  of  the  offence. Pleading guilty  by  the  accused  to  the  violation  of  a provision of  law is  no plea at all, as he would have to be confronted with the substance of the allegation, in order to enter upon  a plea, one way or the other. When the substance of the  allegations is not put to the accused , his entering any kind  of plea  is  no  plea  legally,  due  to  the  non observance  of   such  procedural   requirement  of   utmost importance.      There is  a sequator  to it. Section 375 of the Code of Criminal Procedure  provides that  when the  accused  pleads guilty and  has been  convicted on such plea, there shall be no appeal, except to the extent or legality of the sentence. Section 376  of the  Code of Criminal Procedure further goes to provide  that where  a case has been tried summarily by a Magistrate empowered  to act  under section  260 Cr.P.C. and passes a  sentence of  fine only  not exceeding  two hundred rupees, no appeal shall lie.      The totality  of the  situation thus  is that since the appellant was tried summarily under Section 260 and has been sentenced to pay a fine of Rs.20 on his entering the plea of guilt, he  could not  have filed an appeal against the same. Procedural  barbs   thus   coil   the   appellant,   causing repercussions not  only to  his service career but in being- branded for  ever as "unfit" for government service. This is the rancour  and the  sting which  hurts the appellant most, not the  payment of fine of the paltry sum of rupees twenty, but the  consequences which  have visited  him, due  to  the act/s  covered   under  section   294  IPC  leading  to  the conviction  per   se  being   treated  as   involving  moral turpitude.      "Moral turpitude"  is an  expression which  is used  in legal as also societal parlance to describe conduct which is inherently base,  vile, depraved  or having  any  connection showing  depravity.   The  government   of   Haryana   while considering the  question of  rehabilitation of  ex-convicts took a  policy decision  on February  2, 1973 (Annexure E in the  Paper  Book),  accepting  the  recommendations  of  the Government of India, that ex-convicts who were convicted for offences involving  moral turpitude  should not  however  be taken in  government service.  A list of offences which were considered  involving   moral  turpitude  was  prepared  for information and  guidance in  that connection. Significantly Section 294  IPC As  not  found  enlisted  in  the  list  of offences constituting  moral turpitude.  Later,  on  further consideration, the  government of  Haryana on 17/26th March, 1975 explained  the policy  decision of February 2, 1973 and decided to  modify  the  earlier  decision  by  streamlining



determination of moral turpitude as follows:      ".. ...  The following terms should      ordinarily be  applied  in  judging      whether a  certain offence involves      moral turpitude or not:      (1) whether  the act  leading to  a      conviction was  such as could shock      the moral  conscience of society in      general.      (2) whether the motive which led to      the act was a base one.      (3) whether  on account  of the act      having    been     committed    the      perpetrator could  be considered to      be of  a depraved  character  or  a      person who  was to  be looked  down      upon by the society.           Decision in  each  case  will,      however,     depend      on     the      circumstances of  the case  and the      competent authority has to exercise      its  discretion   while  taking   a      decision  in  accordance  with  the      above mentioned  principles. A list      of  offences  which  involve  moral      turpitude  is   enclosed  for  your      information  and   guidance.   This      list, however, cannot be said to be      exhaustive  and   there  might   be      offence which  are not  included in      it but  which in certain situations      and circumstances may involve moral      turpitude." Section 294  IPC still  remains out  of the  list. Thus  the conviction of the appellant under section 294 IPC on its own would  not   involve  moral   turpitude  depriving  him  the opportunity  to   serve  the  State  unless  the  facts  and circumstances,  which   led  to   the  conviction,  met  the requirements of the policy decision above-quoted.      We had required of the respondents to produce before us the copy of the Judgment whereby the appellant was convicted for the  offence.  As  was  expected  only  a  copy  of  the institution/summary register  maintained by the court of the Chief Judicial  Magistrate, Bhiwani  was  placed  before  us showing that the appellant on 4-6-1980 was imposed a fine of Rs.20/-. A  copy of the treasury challan supporting that the fine paid was deposited by the Chief Judicial Magistrate the same day  has  also  been  produced.  The  copy  of  summary register neither  discloses the substance of the allegations put to  the appellant,  nor the  words in  which the plea of guilt was  entered.  It  is  of  no  significance  that  the appellant treats himself a convict as he had pleaded guilty. Ex facie  it only  shows  that  the  entry  concerns  F.I.R. No.231/3-6-1980 under  Section  294  IPC.  Therefrom  it  is difficult to  discern the  steps taken  in the summary trial proceedings and what had the appellant pleaded to as guilty, whether to the allegations in the FIR or to the provision of the IPC  or any  other particular?  Mere payment  of fine of Rs.20/- does  not go to show that the conviction was validly and legally  recorded. Assuming  that the  conviction is not open to  challenge at  the present  juncture, we  cannot but deprecate the  action of the respondents in having proceeded to adversely  certify the  character and  antecedents of the appellant on  the basis of the conviction per se, opining to have involved  moral turpitude, without satisfying the tests



laid down  in the  policy decision of the government. We are rather unhappy to note that all the three courts below, even when invited  to judge  the matter  in the said perspective, went on  to hold that the act/s involved in conviction under section 294  IPC per  se established  moral turpitude.  They should have  been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 IPC on  today’s society  and its standards, and its changing views of  obscenity. The matter unfortunately was dealt with casually at all levels.      Before  concluding   this  judgment   we  hereby   draw attention of  the Parliament  to step  in and  perceive  the large many  cases which  per law and public policy are tried summarily,  involving  thousands  and  thousands  of  people through out  the country appearing before summary courts and paying small  amounts of  fine, more  often than  not, as  a measure  of   plea-bargaining.  Foremost  along  them  being traffic, municipal and other petty offences under the India; Penal  Code,  mostly  committed  by  the  young  and/or  the inexperienced. The cruel result of a conviction of that kind and a  fine of payment of a paltry sum on plea-bargaining is the end  of the  career, future  or present, as the case may be, of  that young  and/or in  experienced person, putting a blast to his life and his dreams. Life is too precious to be staked over  a petty  incident like this. Immediate remedial measures are  therefore necessary  in raising the toleration limits with  regard to  petty offences especially when tried summarily. Provision  need be  made that  punishment of fine upto a  certain limit,  say  upto  Rs.2000/-  or  so,  on  a summary/ordinary  conviction   shall  not   be  treated   as conviction at all for any purpose and all the more for entry into and  retention in government service. This can brook no delay, whatsoever.      As a  result of  the above  discussion, we  allow  this appeal, set  aside the judgment and decree of the High Court as 31 SO that of the two courts below and decree the suit of the appellant as prayed for, with costs.