JUDGMENT

O.H. Mootham, C.J. - This is a petition under Article 226 of the Constitution.

2. The petitioner and the second respondent were candidates for election to the office of Sarpanch of a Panchayat Adalat, and at an election held on the 14th September, 1956, the second respondent was declared elected. The petitioner thereupon filed an election petition under Sec. 12C of the U. P. Panchayat Raj Act before the Sub-Divisional Officer in which he challenged the validity of the second respondent's election. His allegations were that the second respondent was disqualified from being elected as Sarpanch on two grounds; first, that he was less than thirty years of age, and, secondly, that he had been convicted of an offence involving moral turpitude. The Sub-Divisional Officer by an order dated the 24th September, 1957, dismissed the petition and the petitioner now comes to this Court, the prayer being that the order of the Sub-Divisional Officer be quashed by a writ in the nature of certiorari.

3. We are concerned in this petition only with the question whether the second respondent was disqualified for election as Sarpanch on the ground that he has been convicted of an offence involving moral turpitude a disqualification under Cl. (h) of Sec. 5A of the Act. It is not in dispute that some years ago the second respondent was charged before a Magistrate with the offence of stealing a camera and was found guilty. Instead however of passing a sentence upon him the learned Magistrate considered the case to be a fit one for the exercise of the power conferred upon him by Sec. 3 of the U. P. First Offend; Probation Act, and he released the petitioner after due admonition. The Sub-Divisional Officer had some doubt whether the proceedings before the Magistrate resulted in the conviction of the second respondent, and in the circumstances he acceded to an application made to him on behalf of that respondent that he should, in exercise of the powers conferred on him by R. 13 of the U. P. Panchayat Raj Rules read with the first proviso to Sec. 5A of the Act, remove the disqualification from which the second respondent undoubtedly suffered if the proceedings before the Magistrate resulted in a conviction.

4. The first proviso to Sec. 5A states that certain of the disqualifications therein enumerated, including the disqualification under Cl. (h), "may in the manner prescribed be removed by the State Government," and R. 13 provides that an application for removal of a disqualification under, inter alia. cl. (h) shall be presented to the Sub-Divisional Officer of the subdivision concerned, and that the Sub-Divisional Officer may, after such enquiry as he deems fit, accept the application and remove the disqualification. Now, in the present case the Sub-Divisional Officer was of opinion that the disqualification of the second respondent should be removed and, although he has not in terms ordered that it be removed, it must I think be implied that he has done so. He then proceeded to dismiss the election petition.

5. In this Court two questions have been raised. The first is whether the second respondent had been "convicted" of an offence involving moral turpitude. Now, Sec. 3 of the U. P. First Offender's Probation Act reads as follows:

"3. Power of court to release certain offenders after admonition. In any cases in which a person is found guilty of the offence of theft, dishonest misappropriation, or cheating, punishable under the Indian Penal Code, or of any offence punishable with not more than two year's imprisonment and no previous conviction is proved against him, the court by which he is found guilty may, if it thinks fit having regard to the age, character, antecedents or physical or mental condition of the offender, and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition."

6. Learned Counsel for the second