Delhi High Court
Manish Saini vs Government Of Nct Of Delhi And Anr. & Anr. on 4 November, 2024
Author: C. Hari Shankar
Bench: C. Hari Shankar, Sudhir Kumar Jain
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 18 October 2024
Pronounced on: 4 November 2024
+ W.P.(C) 11856/2022
MANISH SAINI .....Petitioner
Through: Ms Manisha Parmar and Mr
Kapil Chaudhary, Advocates
versus
GOVERNMENT OF NCT OF DELHI
AND ANR .....Respondents
Through: Mr. Kshitij Chhabra, Senior
Panel Counsel for respondents
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
% 04.11.2024
C. HARI SHANKAR, J.
1. The petitioner assails judgment dated 10 June 2022 passed by
the learned Central Administrative Tribunal1 in OA 3065/20192,
whereby the learned Tribunal has dismissed the OA.
1 “the learned Tribunal” hereinafter
2 Manish Saini v Commissioner of Police & another
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Facts
2. FIR3 117 was lodged against the petitioner at PS Kharkhoda on
12 July 2011, alleging that the petitioner had committed offences
under Sections 398 and 401 of the Indian Penal Code4, 1860, read
with Sections 25, 54 and 59 of the Arms Act 1959. The charge against
the petitioner was that he, along with certain other persons, had
attempted to rob a passerby, who had alerted the local Police
patrolling the area and who, in turn, had intercepted the petitioner and
the other accused. It was also alleged that knives were recovered from
his possession. The petitioner was arrested and committed to trial in
SC 100 of 2011/20125.
3. The trial ultimately ended in the acquittal of the petitioner, vide
judgment dated 8 November 2012, passed by the learned Additional
Sessions Judge Sonepat6. Paras 15 to 24 of the judgment of the
learned ASJ merit reproduction, thus:
“15. According to the case of the prosecution, the accused
persons attempted to rob passers-by. They also attempted to rob of
EASI Joginder. One spring-actuated knife each was recovered from
the possession of the accused.
16. The case of the prosecution rests solely on the statements of
police officials as no independent witness was joined during the
course of investigation. The raid was conducted on the basis of the
secret information received by the investigating officer at police
post Jharot. PW7 ASI Surender Singh stated that he had tried to
join independent witness but none was available at that time. No3 First Information Report
4 IPC
5 State v Manish
6 “the learned ASJ” hereinafterWP(C) 11856/2022 Page 2 of 43
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independent witness was called from village Jharot. PW4 Rajbir
Singh and PW5 EASI Joginder Singh expressed their ignorance
whether the investigating officer had tried to join any independent
witness in the investigation or not. Thus the statements of the
witnesses of the prosecution are not consistent regarding joining of
the independent witnesses. No explanation worth the name, what to
talk of satisfactory, has been furnished by the investigating officer
for non-joining of the independent witnesses. Thus, the fact
remains that the raid was conducted after getting secret information
and the investigating officer had ample opportunity to join
independent witnesses, but no sincere effort was made to join any
independent witness. This fact casts a shadow of doubt on the case
of the prosecution.
17. No doubt, the case of the prosecution cannot be dislodged
merely on the score of non-joining of the Independent witness, but
at the same time this fact cannot be lost sight of that the officials of
the police generally remain interested in the success of their case
and in order to achieve such an end, they sometimes act over
jealously. Therefore, as a matter of caution, the statements of the
police officials are to be scrutinized more minutely.
18. As per the case of the prosecution, the place of occurrence
was on the main road which leads to village Jharot and the site plan
Ex. PB shows that the road was straight leading from Sonepat to
Kharkhoda. Thus, the accused persons could very well see any
vehicle coming from any side from the straight road. The thieves
and robbers are expected to remain alert while committing the
offence, because they always fear of being apprehended. It cannot
be believed that the accused persons stopped the motor cycle of
PW5 EASI Joginder Singh which was followed by two other motor
cycles of the police officials, without taking any precaution.
19. It is also important to note that the accused were armed
with spring-actuated knives, but it is quite surprising that they did
not offer any resistance when the police party tried to apprehend
them. It is not believable that the accused persons, who had set out
with firm determination to commit robbery, would have offered no
resistance and surrendered before the police despite possessing
deadly weapons. As a man of ordinary prudence, they would have
used their weapons in order to succeed in escaping. In this context,
reference may be made to Punni v State of Uttar Pradesh7.
7 1999 (4) R.C.R (Criminal) 147
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20. According to the case of the prosecution, the secret
informant had informed that the accused persons were robbing the
passers-by but neither he disclosed as to who were those persons
nor any person came forward to make complaint to the police that
he was robbed by the accused. If, the accused persons were
determined to commit robbery, then they could succeed in robbing
the other passers-by because there were no police at that time and
they had no fear at all. This fact further casts a doubt on the case of
the prosecution regarding the face that the accused had robbed
some other passers-by also.
21. There are material contradictions and discrepancies in the
statement of the police officials. PW 7 ASI Surender Singh did that
he had tried to join independent witness in the investigation but
PW 4 HC Rajbir Singh and PW 5 EASI Joginder Singh expressed
their ignorance whether the investigating officer had made any
effort to join independent witness. PW7 ASI Surender Singh stated
that the place from occurrence is situated at a distance of half a
kilometre from Sonipat- kharkhoda road while PW 5 deposed that
the same is about one kilometre. These material contradiction and
discrepancies in the statement of the police officials render the case
of the prosecution highly doubtful.
22. It is also worthwhile to add that PW7 ASI Surender Singh
is the complainant in this case. Ruqqa Ex. PH was sent by him to
the Police Station on the basis of which the first information report
was registered. He is also the investigating officer of the case,
therefore, his statement cannot be considered free from doubt. He
must be an interested person in the success of the case. This fact
further renders the case of the prosecution doubtful regarding the
attempt made by the accused to commit robbery and recovery of
knives from the possession of the accused. There is no evidence of
the prosecution worth the name on record that accused persons
belong to a gang of wandering or other gang of persons associated
for the purpose of habitually committing theft or robbery. The law
cited by the learned defence counsel is fully applicable to the facts
of the instant case. Under such circumstances, it would not be safe
and prudent to base conviction of the accused on such feeble and
unbelievable evidence of the prosecution.
23. In view of the fore going discussion, I arrive at the
conclusion that the prosecution has miserably failed to establish its
case against the accused beyond reasonable doubt, therefore, they
are entitled to acquittal. Accordingly, the accused are acquitted of
the charges for which they are facing trial.
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24. The case property shall stand confiscated to the State and it
will be disposed of at appropriate time in accordance with law,
after the expiry of period of limitation for appeal or revision or the
decision thereon, if any, filed. File be consigned to the record
room.”
4. On 22 April 2017, the Delhi Government issued a notification
inviting applications for direct recruitment to the post of Sub-
Inspector (Executive) (Male)8 in the Delhi Police, by the Delhi Police
Examination 20179, to be conducted by the Staff Selection
Commission10 . The petitioner applied, and participated in the DPE,
and was declared provisionally selected for the post of SI, on 3
November 2018, as per the final result of the DPE issued by the SSC.
This was, however, subject to completion of codal formalities,
including verification of character and antecedents of the candidates
and checking of the documents submitted by them.
5. At the time of application, the petitioner had disclosed the fact
that he had been arrayed as an accused in FIR 117 dated 12 July 2011
under Sections 398 and 401 of the IPC read with Sections 25, 54 and
59 of the Arms Act, registered at PS Kharkhoda, though he contended
that he was falsely arrayed. It was also declared that he had been
acquitted of the said offences vide judgment dated 8 November 2012
supra, passed by the learned ASJ, Sonepat.
8 “SI” hereinafter
9 “DPE” hereinafter
10 “SSC” hereinafter
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6. On 31 May 2019, the Deputy Commissioner of Police11
(Recruitment) issued a Show Cause Notice to the petitioner, requiring
him to show cause as to why his candidature for the post of SI,
consequent on the DPE 2017 be not cancelled owing to his alleged
involvement in the criminal case registered vide FIR 117. The
petitioner replied on 7 June 2019, submitting that the case set up
against him in the FIR was false and that he had been honourably
acquitted of the alleged offences by the learned ASJ. In these
circumstances, the petitioner submitted that he was entitled to be
appointed as SI.
7. By order dated 24 September 2019, the DCP cancelled the
petitioner’s appointment as SI. The order reproduces the allegation in
the FIR and proceeds to note that the accused in the FIR, including the
petitioner, had been “acquitted of the charges as prosecution failed to
establish the case as no independent police witness was joined and all
PWs were police officials”. Nonetheless, it was observed that the
Screening Committee, to which the petitioner’s case had been put up,
was of the view that the petitioner had been involved in a serious
offence of attempted robbery and was in possession of spring actuated
knives, which itself indicated the petitioner’s “criminal tendency with
disrespect for law”, rendering the petitioner unfit/unsuitable for
service in a disciplined force such as the Police. The relevant portion
of the order read thus:
“… The accused including you were acquitted of the charges as
prosecution failed to establish the case as no independent police11 “DCP” hereinafter
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witness was joined and all PWs were police officials. However,
the Screening Committee observed that you were involved in
serious nature of offence like attempt to robbery and were in
possession of spring actuated knives for which section 25 Arms Act
was also registered. Possession of knife to rob people shows your
criminal tendency with disrespect for law and as such make you
unfit/unsuitable for serice in a discipline force and law enforcing
agency like police. Sub-Inspectors (Exe) in Delhi are the cutting
edge in the police functioning and upper subordinate rank officers.
The candidate having such dubious character cannot be appointed
as it would not be in public interest.”
(Emphasis supplied)
8. Aggrieved thereby, the petitioner approached the learned
Tribunal by way of OA 3065/2019, which stands dismissed by the
impugned judgment.
9. Cases of candidates who were involved in a criminal case and
thereafter seek appointment to the Delhi Police are, undisputedly,
governed by Standing Order 398/201812 dated 18 October 2018,
issued by the Commissioner of Police. Clause 3 of the Guidelines
contained in the said SO, which specifically addresses such cases,
reads thus:
“3. IN CASE OF DISCLOSURE OF
INVOLVEMENT/ARREST/ACQUITTAL/DISCHARGE ETC.
IN CRIMINAL CASE
(A) If a candidate had disclosed his/her
acquittal/discharge/conviction in criminal case(s), complaint
case(s) etc. in the Attestation form, the Appointing Authority after
obtaining the information of appeal/revision against the
acquittal/discharge etc. shall issue show cause notice for the
cancellation his/her candidature before final decision in the matter.
12 “SO 398/2018” hereinafter
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(B) On receipt of candidate’s reply, complete case may be sent
to PHQ to assess the suitability for appointment in Delhi Police by
the Screening Committee. From the observations of the Hon’ble
Apex Court in cases of Mehar Singh, Parvez Khan and Pradeep
Kumar, it is clear that mere acquittal in a criminal case does not
automatically entitle the provisionally selected candidate for
appointment to the post. The Screening Committee will still have
the opportunity to consider antecedents and examine whether
he/she is suitable for appointment to the post in Delhi Police. The
Screening Committee must also be alive to ‘the importance of trust
reposed in it and must examine the candidate with utmost care.
(i) Even after due opportunity, the candidate still fails
to enclose/provide the certified/photocopies of the record/
investigation and trial along with reply to the show cause
notice, then an adverse inference will be drawn against
him/her. However, in such a case the Department shall
make all efforts to obtain the relevant documents from the
authorities concerned and then the matter should be
submitted before the Screening Committee for its
recommendation.
(ii) The recommendation of the Screening Committee
may not be as reasoned and speaking, as that of a quasi
judicial authority, but it should contain the view of the
Committee on:
a) The nature and extent of involvement of the
candidate in the criminal case.
b) Whether he/she is acquitted on
compromise/benefit of doubt/witnesses turning
hostile or honorably. In cases where acquittal was
out of compromise or benefit of doubt, the
Screening Committee shall offer reasoned and
speaking comments.
c) Nature and gravity of the charge etc.
d) Such comment of the Screening Committee
would not amount to its sitting on the judgment like
a trial court, but would only amount to assessment
of the suitability of a candidate involved in a
criminal case for appointment in Delhi Police.
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e) The final decision on the show cause notice
shall be passed as per the recommendations of the
Screening Committee. If the Committee does not
recommend the case, show cause notice may be
confirmed and candidature may be cancelled by
passing a reasoned and speaking order. The
Complete dossiers of such candidate must be kept in
record.”
10. The learned Tribunal has, in the impugned judgment, placed
reliance on the decisions of the Supreme Court in State of Madhya
Pradesh v Bunty13, Commissioner of Police v Raj Kumar14 and UOI
v Methu Meda15 and has, thereafter, concluded thus:
“11. From the above quoted judgments of the Hon’ble Apex
Court it is evident that the Screening Committee would be within
its right to not recommend case of a candidate who was involved in
criminal proceedings and acquitted by the competent Court after
due consideration.
12. From the above, it is quite obvious that the Screening
Committee considered all aspects taking into account the acquittal
by the Court of AJM, Sonipat and the law laid down by the
Hon’ble Apex Court has referred above in a catena of judgements
and did not recommend his case. Accordingly his candidature was
cancelled vide the impugned order dated 24.09.2019.
13. In view of the above mentioned, we are of the view that the
SCN dated 31.05.2019 and the impugned order dated 24.09.2019
are not in violation of any laid down procedures/rules. We also do
not find any infirmity or illegality in the action of the respondents
in cancelling the candidature of the applicant.
14. The OA is thus devoid of merit and the same is accordingly
dismissed. There shall be no order as to costs.”
13 (2020) 17 SCC 654
14 (2021) 8 SCC 347
15 (2022) 1 SCC 1
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11. Aggrieved thereby, the petitioner is before this Court, under
Article 226 of the Constitution of India.
12. We have heard Ms Manisha Parmar, learned Counsel for the
petitioner and Mr Kshitij Chandra, learned Senior Panel Counsel for
the respondents, at length.
13. Ms Parmar has pressed into service paras 16, 20 and 21 of the
judgment dated 8 November 2012 of the learned ASJ. She submits
that the respondent was not acquitted on benefit of doubt, but because
the Police was unable to prove the case set up against him. She
submits, further, that a reading of paras 16, 20 and 21 of the judgment
of the learned ASJ disclose that there were material inconsistencies in
the statements of the prosecution witnesses, and there was no
explanation as to why no independent witness was joined. The
learned ASJ has, in the circumstances, clearly stated that there was “a
shadow of doubt on the case of the prosecution”. In fact, in para 21,
the learned ASJ concludes by observing that “the case of the
prosecution” was “highly doubtful”. Ms Parmar has placed reliance
on the judgment of a coordinate Division Bench of this Court in
Mahesh Kumar v UOI16, as also the judgments of the Supreme Court
in Joginder Singh v UT of Chandigarh17 and Pramod Singh Kirar v
State of MP18 .
16 2023 SCC OnLine Del 2113
17 (2015) 2 SCC 377
18 (2023) 1 SCC 423
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14. Mr Kshitij Chandra, on the other hand, supports the impugned
judgment and states that the Courts should, in such cases, refer to the
decision of the Screening Committee, especially as appointment is
being made to a post in the Delhi Police.
Analysis
The law
15. The case of the petitioner, for appointment, was indisputably
required to be considered in the light of SO 398/2018. The validity or
legality of the said SO is not in challenge. The petitioner is, therefore,
bound by it. From the SO, the following principles emerge:
(i) A Show Cause Notice, proposing cancellation of the
candidature of the candidates seeking appointment to the Delhi
Police could be issued even in a case of acquittal or discharge
of the candidate in the criminal case.
(ii) Acquittal in the criminal case did not automatically
entitled the provisionally selected candidates for appointment to
the Delhi Police.
(iii) The Screening Committee, in arriving at a decision as to
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(a) the antecedents of the candidate,
(b) the suitability of the candidate for appointment,
(c) whether the candidate was acquitted honourably or
on “compromise/benefit of doubt/witnesses turning
hostile”, and
(d) the nature and gravity of the charge against the
candidate.
It is important to note that the issue of whether the acquittal of the
candidate was, or was not, honourable, thus assumes importance in
the backdrop of the SO 398/2018. It is also important to note that SO
398/2018 contradistinguishes an honourable acquittal from an
acquittal on compromise, benefit of doubt, or because the witnesses
turned hostile.
16. The learned Tribunal has held that, once the Screening
Committee had, in scrupulous adherence to these principles, found the
respondent unsuitable for appointment as SI in the Delhi Police, the
Tribunal, or the Court, could not direct otherwise.
17. The issue in controversy has been addressed by the Supreme
Court on numerous occasions, and the position in law is well-settled.
We proceed to advert to some of the authoritative decisions on the
point.
18. Joginder Singh
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18.1 There are, admittedly, on facts, stark similarities between this
case and the case before us. Joginder Singh19 , the appellant before
the Supreme Court, applied for recruitment as Constable in the Punjab
police. He participated in the selection, and was declared successful.
Thereafter, it was found that he was involved in an FIR registered at
Bhiwani under Sections 148, 149, 323, 325 and 307 of the IPC.
Consequent on trial, Joginder was acquitted on 4 October 1999. He,
therefore, petitioned the learned Tribunal, seeking a direction that he
be appointed as Constable. The learned Tribunal allowed the OA.
The High Court, however, set aside the decision of the learned
Tribunal. Aggrieved thereby, Joginder appealed to the Supreme
Court.
18.2 The Supreme Court, in appeal, found, initially, in paras 16 and
17 of the report, that the acquittal of Joginder was honourable:
“16. However, adverting to the criminal proceeding initiated
against the appellant, we would first like to point out that the
complainant did not support the case of the prosecution as he failed
to identify the assailants and further admitted that the contents of
Section 161 CrPC statement were not disclosed to him and his
signatures were obtained on a blank sheet of paper by the
investigating officer. Further, Sajjan Singh, who was an eyewitness
of the case, who was also injured, had failed to identify the
assailants. Both the witnesses were declared hostile on the request
of the prosecution.
17. The learned Additional Sessions Judge, Bhiwani held that
the prosecution has not been able to prove in any way the
allegations against the appellant. Thus, the learned Judge held that19 “Joginder” hereinafter
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the prosecution had miserably failed to prove the charges levelled
against the appellant in the criminal proceedings. Therefore, we are
in agreement with the findings and judgment of the learned
Additional Sessions Judge and are of the opinion that the acquittal
of the accused from the criminal case was an honourable acquittal.
18. The learned counsel has rightly placed reliance upon the
decision of this Court in Inspector General of Police v S.
Samuthiram20 of which relevant paragraph is extracted as under:
“24. The meaning of the expression ‘honourable
acquittal’ came up for consideration before this Court
in RBI v. Bhopal Singh Panchal21. In that case, this Court
has considered the impact of Regulation 46(4) dealing with
honourable acquittal by a criminal court on the disciplinary
proceedings. In that context, this Court held that the mere
acquittal does not entitle an employee to reinstatement in
service, the acquittal, it was held, has to be honourable. The
expressions ‘honourable acquittal’, ‘acquitted of blame’,
‘fully exonerated’ are unknown to the Code of Criminal
Procedure or the Penal Code, which are coined by judicial
pronouncements. It is difficult to define precisely what is
meant by the expression ‘honourably acquitted’. When the
accused is acquitted after full consideration of prosecution
evidence and that the prosecution had miserably failed to
prove the charges levelled against the accused, it can
possibly be said that the accused was honourably
acquitted.”
(Italics in original; underscoring supplied)
18.3 Having thus held Joginder to have been honourably acquitted,
the Supreme Court went on to hold that, as he had not concealed the
fact of the criminal case having been registered against him and of his
acquittal therein, at the time of applying for appointment, he was
entitled to the full benefit of his honourable acquittal, which would
include the right to be appointed as Constable. Denying him such
appointment was held to be “like a vicarious punishment, which is not
20 (2013) 1 SCC 598
21 (1994) 1 SCC 541
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permissible in law”. Apart from the “small dent in the name of this
criminal case in which he has been honourably acquitted”, the
Supreme Court found that there was no other unsavoury antecedent
visiting Joginder.
19. Pramod Singh Kirar
19.1 This was also a case of cancellation of appointment to the post
of Police Constable on the ground of involvement, by the appellant
Pramod Singh Kirar22 in an offence under Section 498-A of the IPC,
of which he was acquitted. There was no suppression, by Pramod, of
his involvement in the criminal case, resulting in his acquittal.
19.2 The Supreme Court observed that the matrimonial dispute
between Pramod and his wife ended in settlement, his wife did not
support the case of the prosecution and was declared hostile and other
prosecution witnesses examined in the cases did not co-operate the
version of the prosecution. Thus, it was found that the offence for
which Pramod was tried ultimately resulted in acquittal, arising out of
a matrimonial dispute which ended in settlement out of court. In para
11 of the report, the Supreme Court holds, therefore, that “under the
circumstances and the peculiar facts of the case, the appellant could
not have been denied the appointment solely on the aforesaid ground
that he was tried for the offence under Section 498-A IPC and that
too, for the offence alleged to have happened in the year 2001 for
22 “Pramod” hereinafter
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which he was even acquitted in the year 2006 may be on settlement
(between husband and wife).”
19.3 This judgment, in our considered opinion, cannot be said to
support the case that Mr. Parmar seeks to canvass. The Supreme
Court itself observed that the decision was rendered in the peculiar
facts of the case before it. The criminal case against Pramod arose out
of a matrimonial dispute with his wife. That dispute was settled, and
the wife therefore did not press charges. Other witnesses turned
hostile. Such a case, quite obviously, turns on its own facts, and the
Supreme Court has repeatedly emphasised, in the judgment, that the
dispute was ultimately one between husband and wife.
20. Methu Meda
20.1 A detailed analysis of the law on the point is to be found in the
decision in Methu Meda, on which the learned Tribunal has placed
reliance. In that case, the respondent Methu Meda23 was tried for an
alleged offence of kidnapping for ransom. He was acquitted by the
Sessions Court as the complainant, who was allegedly abducted by
Methu, turned hostile. Thereafter, as his candidature for appointment
to the Central Industrial Security Force24 was cancelled, Methu sought
legal redress, and the case travelled to the Supreme Court. Here, too,
there was complete disclosure, by Methu, of the criminal case that had
been registered against him. The Screening Committee, nonetheless,
23 “Methu”, hereinafter
24 “CISF”, hereinafter
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refused to uphold his appointment, in view of the gravity of the
charges against him.
20.2 Paras 9 to 21 of the report merit reproduction:
9. After having heard the learned counsel for the parties at
length, the question which arises in the present appeal is whether
the decision of the Screening Committee rejecting the candidature
of the respondent, when there was no allegation of malice against
the Screening Committee and the respondent-writ petitioner had
been acquitted of serious charges, inter alia, of kidnapping for
ransom as some prosecution witnesses had turned hostile, ought to
have been interfered with.
10. While addressing the question, as argued the meaning of
expression “acquittal” is required to be looked into. The
expressions “honourable acquittal”, “acquitted of blame” and
“fully acquitted” are unknown to the Code of Criminal Procedure
or the Penal Code, 1860. It has been developed by judicial
pronouncements. In State of Assam v. Raghava Rajgopalachari25,
the effect of the word “honourably acquitted” has been considered
in the context of the Assam Fundament Rules (FR) 54(a) for
entitlement of full pay and allowance if the employee is not
dismissed. The Court has referred to the judgment of Robert Stuart
Wauchope v. Emperor26, in the context of expression “honourably
acquitted”, Lort-Williams, J. observed as thus:
“The expression “honourably acquitted” is one which is
unknown to courts of justice. Apparently it is a form of
order used in courts martial and other extra-judicial
tribunals. We said in our judgment that we accepted the
explanation given by the appellant, believed it to be true
and considered that it ought to have been accepted by the
government authorities and by the Magistrate. Further we
decided that the appellant had not misappropriated the
monies referred to in the charge. It is thus clear that the
effect of our judgment was that the appellant was acquitted
as fully and completely as it was possible for him to be
acquitted. Presumably, this is equivalent to what the
government authorities term “honourably acquitted”.
25 1972 SLR 44 (SC): 1967 SCC OnLine SC 1
26 ILR (1934) 61 Cal 168
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11. In R.P. Kapur v. Union of India27 , it is observed and held
by Wanchoo, J., as thus: (AIR p. 792, para 9)
“9. … Even in case of acquittal, proceedings may follow
where the acquittal is other than honourable.”
12. In view of the above, if the acquittal is directed by the court
on consideration of facts and material evidence on record with the
finding of false implication or the finding that the guilt had not
been proved, accepting the explanation of accused as just, it be
treated as honourable acquittal. In other words, if prosecution
could not prove the guilt for other reasons and not “honourably”
acquitted by the court, it be treated other than “honourable”, and
proceedings may follow.
13. The expression “honourable acquittal” has been considered
in S. Samuthiram after considering the judgments
in RBI v. Bhopal Singh Panchal28 and R.P. Kapur, Raghava
Rajgopalachari; this Court observed that the standard of proof
required for holding a person guilty by a criminal court and
enquiry conducted by way of disciplinary proceeding is entirely
different. In a criminal case, the onus of establishing guilt of the
accused is on the prosecution, until proved beyond reasonable
doubt. In case, the prosecution failed to take steps to examine
crucial witnesses or the witnesses turned hostile, such acquittal
would fall within the purview of giving benefit of doubt and the
accused cannot be treated as honourably acquitted by the criminal
court. While, in a case of departmental proceedings, the guilt may
be proved on the basis of preponderance of probabilities, it is thus
observed that acquittal giving benefit of doubt would not
automatically lead to reinstatement of candidate unless the rules
provide so.
14. Recently, this Court in State (UT of
29
Chandigarh) v. Pradeep Kumar , relying upon the judgment
of S. Samuthiram said that acquittal in a criminal case is not
conclusive of the suitability of the candidates on the post
concerned. It is observed, acquittal or discharge of a person cannot
always be inferred that he was falsely involved or he had no
criminal antecedent. The said issue has further been considered in
State v. Mehar Singh30 holding non-examination of key witnesses
27 AIR 1964 SC 787
28 (1994) 1 SCC 541
29 (2018) 1 SCC 797
30 (2013) 7 SCC 685
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leading to acquittal is not honourable acquittal, in fact, it is by
giving benefit of doubt. The Court said that nature of acquittal is
necessary for core consideration. If acquittal is not honourable, the
candidates are not suitable for government service and are to be
avoided. The relevant factors and the nature of offence, extent of
his involvement, propensity of such person to indulge in similar
activities in future, are the relevant aspects for consideration by the
Screening Committee, which is competent to decide all these
issues.
15. In the present case, the charges were framed against the
respondent for the offences punishable under Sections
347/327/323/506 Part II and 364-A IPC. He was acquitted after
trial vide judgment dated 19-3-2010 by the Sessions Judge, Jhabua
because the person kidnapped Nilesh and also his wife have not
supported the case of prosecution. As per prosecution, the
complainant was beaten by the respondent and the said fact found
support from the evidence of the doctor. Therefore, it appears that
the Committee was of the view that acquittal of the respondent, in
the facts of the present case, cannot be termed as “honourable
acquittal” and the said acquittal may be treated by giving benefit of
doubt.
16. The law with regard to the effect and consequence of the
acquittal, concealment of criminal case on appointments, etc. has
been settled in Avtar Singh v. Union of India31, wherein a three-
Judge Bench of this Court decided, as thus: (SCC pp. 507-08, para
38)
“38. We have noticed various decisions and tried to explain
and reconcile them as far as possible. In view of the
aforesaid discussion, we summarise our conclusion thus:
38.1. Information given to the employer by a candidate as
to conviction, acquittal or arrest, or pendency of a criminal
case, whether before or after entering into service must be
true and there should be no suppression or false mention of
required information.
38.2. While passing order of termination of services or
cancellation of candidature for giving false information, the
employer may take notice of special circumstances of the
case, if any, while giving such information.
31 (2016) 8 SCC 471
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38.3. The employer shall take into consideration the
government orders/instructions/rules, applicable to the
employee, at the time of taking the decision.
38.4. In case there is suppression or false information of
involvement in a criminal case where conviction or
acquittal had already been recorded before filling of the
application/verification form and such fact later comes to
knowledge of employer, any of the following recourses
appropriate to the case may be adopted:
38.4.1. In a case trivial in nature in which conviction had
been recorded, such as shouting slogans at young age or for
a petty offence which if disclosed would not have rendered
an incumbent unfit for post in question, the employer may,
in its discretion, ignore such suppression of fact or false
information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which
is not trivial in nature, employer may cancel candidature or
terminate services of the employee.
38.4.3. If acquittal had already been recorded in a case
involving moral turpitude or offence of heinous/serious
nature, on technical ground and it is not a case of clean
acquittal, or benefit of reasonable doubt has been given, the
employer may consider all relevant facts available as to
antecedents, and may take appropriate decision as to the
continuance of the employee.
38.5. In a case where the employee has made declaration
truthfully of a concluded criminal case, the employer still
has the right to consider antecedents, and cannot be
compelled to appoint the candidate.
38.6. In case when fact has been truthfully declared in
character verification form regarding pendency of a
criminal case of trivial nature, employer, in facts and
circumstances of the case, in its discretion, may appoint the
candidate subject to decision of such case.
38.7. In a case of deliberate suppression of fact with respect
to multiple pending cases such false information by itself
will assume significance and an employer may pass
appropriate order cancelling candidature or terminatingWP(C) 11856/2022 Page 20 of 43
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services as appointment of a person against whom multiple
criminal cases were pending may not be proper.
38.8. If criminal case was pending but not known to the
candidate at the time of filling the form, still it may have
adverse impact and the appointing authority would take
decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in
service, holding departmental enquiry would be necessary
before passing order of termination/removal or dismissal on
the ground of suppression or submitting false information
in verification form.
38.10. For determining suppression or false information
attestation/verification form has to be specific, not vague.
Only such information which was required to be
specifically mentioned has to be disclosed. If information
not asked for but is relevant comes to knowledge of the
employer the same can be considered in an objective
manner while addressing the question of fitness. However,
in such cases action cannot be taken on basis of suppression
or submitting false information as to a fact which was not
even asked for.
38.11. Before a person is held guilty of suppressio veri or
suggestio falsi, knowledge of the fact must be attributable
to him.
(emphasis in original)”
17. In view of the above, in the facts of the present case, as per
paras 38.3, 38.4.3 and 38.5 of Avtar Singh case, it is clear that the
employer is having right to consider the suitability of the candidate
as per government orders/instructions/rules at the time of taking
the decision for induction of the candidate in employment.
Acquittal on technical ground in respect of the offences of
heinous/serious nature, which is not a clean acquittal, the employer
may have a right to consider all relevant facts available as to the
antecedents, and may take appropriate decision as to the
continuance of the employee. Even in case, truthful declaration
regarding concluded trial has been made by the employee, still the
employer has the right to consider antecedents and cannot be
compelled to appoint the candidate.
18. If we look into the facts of the present case, the
instructions of the Home Department dated 1-2-2012, prevalent at
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the time of selection and appointment specify that such candidate
would not be considered for recruitment. In Circular No. 2/2010
dated 31-3-2010, issued by the Office of the Training Sector,
National Industrial Security Academy, Central Industrial Security
Force (Ministry of Home Affairs), it is clarified that if a candidate
is found involved in any criminal case, whether it is finalised or
pending, the candidate may not be allowed to join without further
instructions from the headquarters. After seeking instructions from
the headquarters, the Standing Committee has taken the decision
on 15-10-2012 that because of acquittal giving benefit of doubt,
the respondent-writ petitioner was not considered eligible for
appointment in CISF.
19. In the aforesaid fact, guidance can further be taken from the
judgment in Mehar Singh, in paras 23, 34 & 35, this Court
observed, as thus: (SCC pp. 698-99 & 703)“23. A careful perusal of the policy leads us to conclude
that the Screening Committee would be entitled to keep
persons involved in grave cases of moral turpitude out of
the police force even if they are acquitted or discharged if it
feels that the acquittal or discharge is on technical grounds
or not honourable. The Screening Committee will be within
its rights to cancel the candidature of a candidate if it finds
that the acquittal is based on some serious flaw in the
conduct of the prosecution case or is the result of material
witnesses turning hostile. It is only experienced officers of
the Screening Committee who will be able to judge whether
the acquitted or discharged candidate is likely to revert to
similar activities in future with more strength and vigour, if
appointed, to the post in a police force. The Screening
Committee will have to consider the nature and extent of
such person’s involvement in the crime and his propensity
of becoming a cause for worsening the law and order
situation rather than maintaining it. In our opinion, this
policy framed by the Delhi Police does not merit any
interference from this Court as its object appears to be to
ensure that only persons with impeccable character enter
the police force.
***
34. The respondents are trying to draw mileage from the
fact that in their application and/or attestation form they
have disclosed their involvement in a criminal case. We do
not see how this fact improves their case. Disclosure of
these facts in the application/attestation form is an essential
requirement. An aspirant is expected to state these facts
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honestly. Honesty and integrity are inbuilt requirements of
the police force. The respondents should not, therefore,
expect to score any brownie points because of this
disclosure. Besides, this has no relevance to the point in
issue. It bears repetition to state that while deciding whether
a person against whom a criminal case was registered and
who was later on acquitted or discharged should be
appointed to a post in the police force, what is relevant is
the nature of the offence, the extent of his involvement,
whether the acquittal was a clean acquittal or an acquittal
by giving benefit of doubt because the witnesses turned
hostile or because of some serious flaw in the prosecution,
and the propensity of such person to indulge in similar
activities in future. This decision, in our opinion, can only
be taken by the Screening Committee created for that
purpose by the Delhi Police. If the Screening Committee’s
decision is not mala fide or actuated by extraneous
considerations, then, it cannot be questioned.
35. The police force is a disciplined force. It shoulders the
great responsibility of maintaining law and order and public
order in the society. People repose great faith and
confidence in it. It must be worthy of that confidence. A
candidate wishing to join the police force must be a person
of utmost rectitude. He must have impeccable character and
integrity. A person having criminal antecedents will not fit
in this category. Even if he is acquitted or discharged in the
criminal case, that acquittal or discharge order will have to
be examined to see whether he has been completely
exonerated in the case because even a possibility of his
taking to the life of crimes poses a threat to the discipline of
the police force. The Standing Order, therefore, has
entrusted the task of taking decisions in these matters to the
Screening Committee. The decision of the Screening
Committee must be taken as final unless it is mala fide. In
recent times, the image of the police force is tarnished.
Instances of police personnel behaving in a wayward
manner by misusing power are in public domain and are a
matter of concern. The reputation of the police force has
taken a beating. In such a situation, we would not like to
dilute the importance and efficacy of a mechanism like the
Screening Committee created by the Delhi Police to ensure
that persons who are likely to erode its credibility do not
enter the police force. At the same time, the Screening
Committee must be alive to the importance of trust reposed
in it and must treat all candidates with even hand.”
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20. In view of the aforesaid, it is clear the respondent who
wishes to join the police force must be a person of utmost rectitude
and have impeccable character and integrity. A person having a
criminal antecedents would not be fit in this category. The
employer is having right to consider the nature of acquittal or
decide until he is completely exonerated because even a possibility
of his taking to the life of crimes poses a threat to the discipline of
the police force. The Standing Order, therefore, has entrusted the
task of taking decisions in these matters to the Screening
Committee and the decision of the Committee would be final
unless mala fide. In Pradeep Kumar, this Court has taken the same
view, as reiterated in Mehar Singh. The same view has again been
reiterated by this Court in Raj Kumar.
21. As discussed hereinabove, the law is well-settled. If a
person is acquitted giving him the benefit of doubt, from the
charge of an offence involving moral turpitude or because the
witnesses turned hostile, it would not automatically entitle him for
the employment, that too in disciplined force. The employer is
having a right to consider his candidature in terms of the circulars
issued by the Screening Committee. The mere disclosure of the
offences alleged and the result of the trial is not sufficient. In the
said situation, the employer cannot be compelled to give
appointment to the candidate. Both the Single Bench and the
Division Bench of the High Court have not considered the said
legal position, as discussed above in the orders impugned.
Therefore, the impugned orders passed by the learned Single Judge
of the High Court in Methu Meda v. Union of India and the
Division Bench in Union of India v. Methu Meda are not
sustainable in law, as discussed hereinabove.
21. State of Rajasthan v Love Kush Meena32
21.1 The Supreme Court identified the “moot point” which arose for
consideration before it, in this case, as “whether a benefit of doubt
resulting in acquittal of the respondent in a case charged under
Sections 302, 323, 341/34 of the Penal Code, 1860 can create an
32 (2021) 8 SCC 774
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opportunity for the respondent to join us a Constable in the Rajasthan
Police Service.”
21.2 The respondent Love Kush Meena33 was tried for having
committed offences under Section 302, 323 and 341 read with Section
34 of the IPC, on the basis of a complaint by one Babulal. It was
alleged that one Jagdish and Dayaram attempted to till a disputed
field, which was obstructed by the maternal aunt of Babulal and that
Jagdish, thereupon, drove a tractor over her and killed her. Babulal
and his associates claimed to have rushed to her aid but to have been
beaten up, with injuries inflicted by Dayaram, Jagdish, one Bodan and
the respondent Meena. They were all, therefore, tried under the
aforenoted Sections of the IPC. During the trial, a compromise was
entered into, between the complainant Babu Lal and his associates and
the accused, including Meena, as a result of which they turned hostile
in the trial which continued for the offences under Sections 302/34
IPC. Based thereon, the learned ASJ, vide judgment dated 1 May
2009, held that “the prosecution had failed to prove the case against
the accused persons beyond reasonable doubt”.
21.3 Meena, after his acquittal, applied for appointment as a
Constable in the Rajasthan Police Service. The advertisement inviting
applications for recruitment specified that candidates who had not
been honourably acquitted by the Court would not be eligible to
participate in the recruitment process. Meena participated, and was
33 “Meena”, hereinafter
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successful. He disclosed the facts relating to the criminal case against
him. His candidature was, however, cancelled on the basis of the
“serious criminal offence” against him. Meena challenged the
cancellation before the High Court of Rajasthan, which are remitted
the matter for de novo consideration. In the de novo exercise, Meena
was once again held to be ineligible for recruitment as the charges
against him were not of a trivial nature but were serious offences, and
he had not been acquitted honourably by the learned ASJ. Meena
again challenged the said decision before the Rajasthan High Court.
The High Court allowed his writ petition, against which the State
appealed to the Supreme Court.
21.4 Paras 24 to 29 of the judgment of the Supreme Court read thus:
“24. Examining the controversy in the present case in the
conspectus of the aforesaid legal position, what is important to
note is the fact that the view of this Court has depended on the
nature of offence charged and the result of the same. The mere fact
of an acquittal would not suffice but rather it would depend on
whether it is a clean acquittal based on total absence of evidence
or in the criminal jurisprudence requiring the case to be proved
beyond reasonable doubt, that parameter having not been met,
benefit of doubt has been granted to the accused. No doubt, in that
facts of the present case, the person who ran the tractor over the
deceased lady was one of the other co-accused but the role
assigned to the others including the respondent herein was not of a
mere bystander or being present at site. The attack with knives was
alleged against all the other co-accused including the respondent.
25. We may also notice this is a clear case where the
endeavour was to settle the dispute, albeit not with the job in mind.
This is obvious from the recital in the judgment of the trial court
that the compoundable offences were first compounded during trial
but since the offence under Sections 302/34 IPC could not be
compounded, the trial court continued and qua those offences the
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witnesses turned hostile. We are of the view that this can hardly
fall under the category of a clean acquittal and the Judge was thus
right in using the terminology of benefit of doubt in respect of such
acquittal.
26. The judgment in Avtar Singh on the relevant parameter
extracted aforesaid clearly stipulates that where in respect of a
heinous or serious nature of crime the acquittal is based on a
benefit of reasonable doubt, that cannot make the candidate
eligible.
27. We may also note the submission of the learned counsel for
the respondent that as per para 38.3 in Avtar Singh case, the
employer has to take into consideration the government
orders/instructions/rules applicable to the employee at the time of
taking a decision. It is her say that the issue whether the Circular
dated 28-3-2017 would apply or not was res integra in view of the
earlier order of the learned Judge dated 14-5-2018. She has further
contended that, in any case, the circular had come into force and as
per the judgment in Avtar Singh case para 38.4, it is the date of
decision which is material and as on the date of decision dated 23-
5-2017, the said circular was applicable.
28. We may note here that the Circular dated 28-3-2017 is
undoubtedly very wide in its application. It seeks to give the benefit
to candidates including those acquitted by the court by giving
benefit of doubt. However, such circular has to be read in the
context of the judicial pronouncements and when this Court has
repeatedly opined that giving benefit of doubt would not entitle
candidate for appointment, despite the circular, the impugned
decision of the competent authority dated 23-5-2017 cannot be
said to suffer from infirmity as being in violation of the circular
when it is in conformity with the law laid down by this Court.
29. We are, thus, of the view that the impugned orders cannot
be sustained and the appellants are well within their rights to have
issued the order dated 23-5-2017.”
22. Bunty
22.1 Bunty applied for recruitment as Constable in the Madhya
Pradesh Police Service. He cleared the recruitment test and was
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selected. Later, however, he was denied appointment on the basis of
the report of the Screening Committee, as he had been involved in
criminal proceedings under Sections 392 and 411 of the IPC. Prior to
his appointment, however, Bunty had already been acquitted by the
competent criminal court by extending, to him, benefit of doubt. The
issue before the Supreme Court was whether, in such circumstances,
denial of appointment to Bunty was justified.
22.2 The Supreme Court held thus, in paras 8 to 14 of the report:
“8. After hearing the learned counsel for the parties, we are of
the opinion that the respondent had participated in the selection
process in the year 2013, at that time the said criminal case was
pending consideration and he has been acquitted subsequently,
vide judgment and order dated 7-1-2015 all throughout during
selection process the case was pending consideration and as certain
witnesses have turned hostile which is not unusual. The respondent
knew very well about the pendency of the case against him and it
is not uncommon to see that witnesses turned hostile. In the
aforesaid circumstance, it cannot be said to be case of clear
acquittal, in criminal case, he was given benefit of doubt not
acquitted because the case against him was found to be false.
Thus, due to such acquittal appointment could not have followed
as a matter of course as observed by the Division Bench of the
High Court.
9. Considering the nature of allegation in the case, it was a
case of impersonation as a police officer and thereby committing
the offence under Sections 392 and 411 IPC. It was a case of the
serious kind, which involved moral turpitude and having not been
granted clean acquittal in the criminal case merely by the grant of
benefit of doubt, clouds cannot be said to be clear as to the
antecedents of the respondent. Thus, the perception formed by the
Screening Committee that he was unfit to be inducted in the
disciplined police force was appropriate. In the aforesaid factual
matrix, decision of Scrutiny Committee could not be said to be
such which warranted judicial interference.
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10. The learned Single Judge of the High Court in the factual
matrix projected, has rightly relied upon the decision in Mehar
Singh, wherein this Court has observed as under:
“35. The police force is a disciplined force. It shoulders
the great responsibility of maintaining law and order and
public order in the society. People repose great faith and
confidence in it. It must be worthy of that confidence. A
candidate wishing to join the police force must be a person
of utmost rectitude. He must have impeccable character
and integrity. A person having criminal antecedents will
not fit in this category. Even if he is acquitted or
discharged in the criminal case, that acquittal or discharge
order will have to be examined to see whether he has been
completely exonerated in the case because even a
possibility of his taking to the life of crime poses a threat to
the discipline of the police force. The Standing Order,
therefore, has entrusted the task of taking decisions in these
matters to the Screening Committee. The decision of the
Screening Committee must be taken as final unless it is
mala fide. In recent times, the image of the police force is
tarnished. Instances of police personnel behaving in a
wayward manner by misusing power are in public domain
and are a matter of concern. The reputation of the police
force has taken a beating. In such a situation, we would not
like to dilute the importance and efficacy of a mechanism
like the Screening Committee created by Delhi Police to
ensure that persons who are likely to erode its credibility
do not enter the police force. At the same time, the
Screening Committee must be alive to the importance of the
trust reposed in it and must treat all candidates with an
even hand.”
11. That apart, when we consider the decision of the three-
Judge Bench of this Court in Avtar Singh the Court observed:
“38.4.3. If acquittal had already been recorded in a case
involving moral turpitude or offence of heinous/serious
nature, on technical ground and it is not a case of clean
acquittal, or benefit of reasonable doubt has been given, the
employer may consider all relevant facts available as to
antecedents, and may take appropriate decision as to the
continuance of the employee.”
12. In Pradeep Kumar this Court has observed:
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“15. From the above details, we find that the Screening
Committee examined each and every case of the
respondents and reasonings for their acquittal and taken the
decision. While deciding whether a person involved in a
criminal case has been acquitted or discharged should be
appointed to a post in a police force, nature of offence in
which he is involved, whether it was an honourable
acquittal or only an extension of benefit of doubt because
of witnesses turned hostile and flaws in the prosecution are
all the aspects to be considered by the Screening
Committee for taking the decision whether the candidate is
suitable for the post. As pointed out earlier, the Screening
Committee examined each and every case and reasonings
for their acquittal and took the decision that the respondents
are not suitable for the post of Constable in Chandigarh
Police. The procedure followed is as per Guideline 2(A)(b)
and object of such screening is to ensure that only persons
with impeccable character enter police force. While so, the
court cannot substitute its views for the decision of the
Screening Committee.”
13. The law laid down in the aforesaid decisions makes it clear
that in case acquittal in a criminal case is based on the benefit of
doubt or any other technical reason, the employer can take into
consideration all relevant facts to take an appropriate decision as
to the fitness of an incumbent for appointment/continuance in
service. The decision taken by the Screening Committee in the
instant case could not have been faulted by the Division Bench.
14. Coming to the decision relied upon by the learned counsel
appearing for the respondent in Joginder Singh we are of the
opinion that it was not the case of the decision taken by the
Screening Committee on due consideration of the material on
record of the case. Thus, the decision is distinguishable. In the
peculiar facts and circumstances of the case, we are inclined to
hold that the decision of the Screening Committee was
appropriate.”
23. The principle that the decision of the Screening Committee
ought ordinarily to be respected, in the absence of any allegation of
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mala fides against the Screening Committee itself stands reiterated in
Imtiyaz Ahmad Malla v State of J & K34.
24. State of M.P. v Bhupendra Yadav35
24.1 The respondent Bhupendra Yadav36 was tried for having
allegedly committed offences under Sections 341 and 354(D) of the
IPC read with Section 11(D)/12 of the Protection of Children from
Sexual Offences Act, 201237. During the course of trial, the minor
complainant turned hostile, consequent to a settlement having been
arrived at, between Yadav and his compatriots. Other prosecution
witnesses also turned hostile. In that view of the matter, the learned
trial Court acquitted Yadav and other accused of the charges against
them.
24.2 The next year, Yadav participated in an entrance examination
for filling posts of Constables in the Madhya Pradesh Police Service.
He was selected. Later, he was held to be unfit for appointment in
view of his involvement in the aforenoted criminal case in which he
had been acquitted only because the offence was not proved beyond
doubt.
24.3 Yadav petitioned the High Court and, in due course of time, the
matter travelled to the Supreme Court. After noting the earlier
34 2023 SCC OnLine SC 205
35 2023 SCC OnLine SC 1181
36 “Yadav” hereinafter
37 “the POCSO Act” hereinafter
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decisions rendered in, among others, Avtar Singh and Daya Shankar
Yadav v UOI38, the Supreme Court observed and held thus, in paras
16 and 21 to 25 of the report:
“16. As can be discerned from the above decision, an employer
has the discretion to terminate or condone an omission in the
disclosure made by a candidate. While doing so, the employer must
act with prudence, keep in mind the nature of the post and the
duties required to be discharged. Higher the post, more stringent
ought to be the standards to be applied. Even if a truthful
disclosure has been made, the employer is well within its right to
examine the fitness of a candidate and in a concluded criminal
case, keep in mind the nature of the offence and verify whether the
acquittal is honourable or benefit has been extended on technical
reasons. If the employer arrives at a conclusion that the incumbent
is of a suspect character or unfit for the post, he may not be
appointed or continued in service.
*****
21. On applying the law expounded by this Court in a series of
decisions to the facts of the instant case, we find that the Division
Bench of the High Court has dismissed the appeal preferred by the
appellant – State Government and set aside the order passed by the
learned Single Judge who had upheld the order passed by the
Competent Authority, terminating the services of the respondent
on the ground that he was candid enough to make a disclosure in
his verification form stating that he had been chargesheeted in a
criminal case wherein he was later on acquitted and there was no
other criminal case pending against him at the relevant time.
22. We are, however, unable to concur with the aforesaid view.
Even though the respondent had truthfully declared that he was
involved in a criminal case which was decided by the trial
Court vide judgment 26th October, 2015, on perusing the facts of
the said case as noted hereinabove and the observations made in
the judgment, quite clearly, this was not a case of clean acquittal.
It is evident from the facts narrated that after the chargesheet was
filed, the respondent had arrived at a compromise with the
complainant and filed an application under Section 320 of
the CrPC, based on which the offence under Section 341 IPC was38 (2010) 14 SCC 103
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compounded. As for the remaining offences for which the
respondent was charged i.e. Section 354(D) of the IPC and
Section 11 (D)/12 of the POCSO Act, they were non
compoundable and therefore, the matter was taken to trial. The
respondent was acquitted by the trial Court primarily on account
of the fact that the complainant did not support the case set up by
the prosecution and the other prosecution witnesses had turned
hostile. In such circumstances, the respondent’s plea that he had
been given a clean acquittal in the criminal case, is found to be
devoid of merits.
23. This is a classic example of the situation contemplated in
para 38.4.3 of Avtar Singh where the charges framed against the
respondent herein involved moral turpitude and though he was
acquitted on the prosecution witnesses having turned hostile, but
given the facts and circumstances of the case which led to his
acquittal, we are of the view that the appellant – State Government
was well within its right to exercise its discretion against the
respondent and terminate his services on the ground that he was
unfit for appointment in the police department. Here was a case
where the complainant had reneged from the statement made to the
police in view of a settlement arrived at with the respondent. It is
noteworthy that the incident, subject matter of the criminal
case had occurred on 14th February, 2015, and judgment was
pronounced by the trial Court on 26th October, 2015. In the very
next year, when the appellant – State Government invited
applications for appointment to the post of Constable, the
respondent had submitted his application. Even though this is a
case of candid disclosure of the criminal case on the part of the
respondent, which had culminated in an acquittal, but having
regard to the fact that the prosecution could not succeed in
proving the case against the respondent for the reasons noted
hereinabove and further, being mindful of the fact that the case
involved moral turpitude and the respondent was charged with
non-compoundable offences of a serious nature, we are of the firm
view that the judgment of the trial Court cannot be treated as a
clean acquittal.
24. The aforesaid aspects were rightly factored in by the
appellant – State Government while issuing the communication
dated 24th August, 2017 and declaring that the respondent was
unfit for appointment to the said post. The yardstick to be applied
in cases where the appointment sought relates to a Law
Enforcement Agency, ought to be much more stringent than those
applied to a routine vacancy. One must be mindful of the fact that
once appointed to such a post, a responsibility would be cast on
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the respondent of maintaining law and order in the society,
enforcing the law, dealing with arms and ammunitions,
apprehending suspected criminals and protecting the life and
property of the public at large. Therefore, the standard of rectitude
to be applied to any person seeking appointment in a Law
Enforcement Agency must always be higher and more rigourous
for the simple reason that possession of a higher moral conduct is
one of the basic requirements for appointment to a post as
sensitive as that in the police service.
25. We are, therefore, of the opinion that mere acquittal of the
respondent in the criminal case would not automatically entitle him
to being declared fit for appointment to the subject post. The
appellant-State Government has judiciously exercised its discretion
after taking note of all the relevant factors relating to the
antecedents of the respondent. In such a case, even one criminal
case faced by the respondent in which he was ultimately acquitted,
apparently on the basis of being extended benefit of doubt, can
make him unsuitable for appointment to the post of a Constable.
The said decision taken by the appellant-State Government is not
tainted by any malafides or arbitrariness for the High Court to
have interfered therewith. As a result, the judgment dated
17th November, 2017, passed by the learned Single Judge is upheld
while quashing and setting aside the impugned judgment dated
24th January, 2018, passed by the Division Bench of the High
Court. The appeal is allowed. Parties are left to bear their own
costs.”
(Emphasis supplied)
The fallout
25. The litmus test that seems to emerge, from a reading of the
above authorities, is the basis of the acquittal of the candidate in the
criminal case. In the case of candidates seeking entry into Police
services, or other services dealing with law and order and security,
one cannot really distinguish between offence and offence on the basis
of “severity”. All offences which involve moral turpitude, or criminal
acts or intimidation, must fall under the same umbrella. For a
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prospective police person, a taint of robbery or thievery is as damning
as one of murder.
26. To repeat, the litmus test is the basis of the acquittal of the
candidate concerned. The overwhelming view of the Supreme Court,
in its recent decisions, cited supra, appears to be that it is only where
there is honourable acquittal of the candidate, in that the candidate is
found innocent of the crime of which he is accused by the trial Court,
that a right to appointment may be said to exist. Where the acquittal is
because the prosecution has not been able to garner the requisite
evidence or, more particularly, where witnesses have turned hostile,
the candidate cannot claim a right to appointment based on his
acquittal in the criminal case. It matters little whether the criminal
court terms the acquittal to be on “benefit of doubt” or because the
prosecution has failed to prove the case “beyond reasonable doubt”.
There is, clearly, a qualitative difference between holding that the
accused as innocent of the charges against him, and that the charges
against the accused have not been proved beyond reasonable doubt.
The Supreme Court has treated, in Love Kush Meena, an acquittal on
the ground that the charges have not been proved against the accused
beyond reasonable doubt as equivalent to an acquittal on the basis of
the benefit of doubt.
27. In the ultimate eventuate, the Court is required to examine, for
itself, the basis on which the concerned criminal Court has acquitted
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the candidate, rather than proceed merely on the basis of the
terminology used by the concerned Court.
28. In a case of clean acquittal, nothing adverse can be permitted
to visit the employee. A person who has suffered a baseless trial, for
an allegation which is later found to be inherently unbelievable, has
to be recompensed for what he has undergone, not further punished
by denying him employment. It is for this reason, obviously, that
Avtar Singh, in the exigencies it envisages in the various sub-paras of
para 38.4, does not refer to the case of a clean acquittal, for it is but
axiomatic that a clean acquittal is as good as no involvement in the
criminal case at all. We have not, in fact, come across a single
decision which holds that, even in a case of clean acquittal, and lack
of any other adverse antecedents, appointment can be denied to the
candidate. Joginder Singh, for that matter, unequivocally holds
otherwise.
Applying the law to the facts
29. The considerations which have weighed with the learned ASJ,
in acquitting the petitioner, are the following:
(i) The case of the prosecution was based solely on the
statements of Police officials. No independent witness joined
the investigation. There was discrepancy, among the statements
of the Police officials, regarding the reason for not being able toWP(C) 11856/2022 Page 36 of 43
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join independent witnesses. In any event, no satisfactory
explanation, for not joining independent witnesses, was
forthcoming. This cast doubt on the case of the prosecution.
(ii) As police officials generally were interested in the
success of their case, they often acted overzealously. Their
statements were, therefore, required to be scrutinised more
minutely.
(iii) The place of occurrence was on a straight road. The
accused persons could, therefore, easily see any vehicle arriving
from either side. It was not believable, therefore, that the
accused stopped the motorcycle of the Police personnel, who
were pretending to be civilians, without any precaution.
(iv) Though the accused were armed with spring-actuated
knives, it was surprising that they did not offer any resistance
when the Police party tried to apprehend them. This, again, was
not believable. As persons of ordinary prudence, they would
have used their weapons to succeed in escaping.
(v) Though the secret informant of the Police personnel
stated that the accused were robbing passers-by, he neither
disclosed the persons who were robbed, nor did any person
come forward to the Police and claim to have been robbed by
the accused. This again cast doubt on the case of the
prosecution.
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(vi) The FIR was registered on the basis of a ruqqa prepared
by the complainant, who was an interested witness. The
statement could not, therefore, be straightaway believed. This
further rendered the case of the prosecution, regarding the
alleged attempt by the accused to commit robbery, as well as
the recovery of knives from their possession, doubtful.
(vii) No evidence, worth the name, had been produced by the
prosecution, on the basis of which it would be held that the
accused belonged to a gang of wandering persons associated
for habitually committing theft or robbery.
(viii) Conviction of the accused could not be based on such
“feeble and unbelievable evidence of the prosecution”.
In these circumstances, the learned ASJ has held that the prosecution
had “miserably failed to establish its case against the accused beyond
reasonable doubt” and that the accused – including the petitioner –
were, therefore, entitled to acquittal.
30. We are not examining, here, the correctness of the judgment of
the learned ASJ. The entitlement of the petitioner to appointment has
to be assessed on the basis of the said judgment as it stands. It is
nobody’s case that the decision of the learned ASJ has been
overturned by any superior Court.
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31. The findings of the learned ASJ are clear and categorical. They
may not, in so many words, hold that the accused – including the
petitioner – were innocent of the allegations against them, but
effectively do so. The learned ASJ has clearly refused to believe the
allegations against the petitioner and other accused. There is not even
an expression of doubt, in the judgment of the learned ASJ, regarding
the fact that a false and unsustainable case had been set up against the
accused, including the petitioner. The case set up by the Police and
the prosecution has been castigated to be “feeble and unbelievable”.
No evidence worth the name, to link the petitioner and other accused,
with the allegations against them, has been found to exist. The overall
circumstances of the case, and the location and situation in which the
alleged interception of the petitioner and other accused, by the Police,
have been found to be incompatible with the allegations against the
accused.
32. Significantly, the learned ASJ has even held that the allegation
of recovery of knives from the accused – including the petitioner – not
to have been proved. As such, this crucial circumstance, which seems
to have weighed heavily with the Screening Committee in holding the
petitioner to be unfit for appointment, also stands discredited in the
judgment of the learned ASJ.
33. No doubt, where the Screening Committee has holistically
assessed all the material on record, and come to a conclusion that the
candidate concerned is unfit for appointment to a disciplined Force,
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the Court is required to defer to the decision of the Screening
Committee, in the absence of any allegation of mala fides. In the
present case, however, it is not possible for us to hold that the
Screening Committee has appreciated all the facts of the case, or has
taken a holistic view of the judgment of the learned ASJ, whereby the
accused were acquitted, before arriving at a conclusion that the
petitioner was unfit for appointment.
34. Irrespective of the terminology used by the learned ASJ,
therefore, we are of the opinion that the present case is one of clean
acquittal of the accused, including the petitioner, and not the case of
acquittal on benefit of doubt.
35. Though the learned ASJ may have, in conclusion, observed that
the prosecution had failed to bring home the case against the accused
beyond reasonable doubt, a proper reading of the judgment of the
learned ASJ reveals that, in fact, the opinion of the Court was that
there was no evidence to link the accused with the charge against
them. The entire story set up by the prosecution has been found to be
incredible and unworthy of acceptance.
36. Avtar Singh, which, in all later cases, has been regarded as the
gold standard on the issue, specifically holds, in para 38.4.3, thus:
“38.4.3If acquittal had already been recorded in a case involving
moral turpitude or offence of heinous/serious nature, on technical
ground and it is not a case of clean acquittal, or benefit of
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relevant facts available as to antecedents, and may take appropriate
decision as to the continuance of the employee.”
To our mind, the acquittal of the petitioner, by the learned ASJ, was
clean. Thus, the case does not even attract para 38.4.3 of Avtar
Singh, which cedes discretion to the employer only in cases where the
acquittal of the candidate is not clean, or is on benefit of doubt.
37. Were the judgment of the Trial Court, which acquits the
candidate, to contain even a shred of doubt regarding his innocence,
or display any lack of equivocation regarding the innocence of the
candidate, then, perhaps, the employer may be justified in refusing to
appoint him. In a case such as the present, where the learned ASJ has,
without using so many words, practically regarded the case as planted,
and has expressed complete faith in the case against the petitioner
being unbelievable on several counts, the only conclusion is that there
is no cloud whatsoever on the petitioner’s antecedents.
38. The decision of the Screening Committee, as contained in the
order dated 24 September 2019, is completely at odds with the
judgment of the learned ASJ, and is inherently presumptuous. It
defeats comprehension as to how the Screening Committee could
allege that the petitioner was “involved in serious nature of offence
like attempt to robbery” when the learned ASJ has held otherwise.
The alleged possession, by the petitioner, of spring actuated knives,
which appears to be what has most disturbed the Screening
Committee, has also been disbelieved by the learned ASJ. The use of
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the words “as such” indicates that it was the alleged possession of
knives by the accused, including the petitioner, which has most
influenced the Screening Committee to hold him unfit for
appointment.
39. We are constrained to hold that the Screening Committee has
effectively sat in appeal over the judgment of the learned ASJ, which
it was not competent to do. It is nobody’s case that the petitioner’s
antecedents were otherwise murky. The only blot on his escutcheon,
if one may call it that, was the criminal trial in which he found himself
involved. The Screening Committee had, therefore, before it only the
judgment of the learned ASJ on the basis of which it had to determine
the suitability of the petitioner for appointment as SI. It was, therefore,
required to scrupulously appreciate the judgment of the learned ASJ,
and we are of the considered opinion that it has failed to do so. The
observations of the Screening Committee are totally at variance with
those of the learned ASJ and, therefore, we cannot accord, to the
decision of the Screening Committee, the respect which it otherwise
commands.
40. According to us, therefore, the decision of the Screening
Committee suffers from non-application of mind and is, therefore,
perverse, as understood in law, as it fails to appreciate the material
before it in the proper perspective.
41. In that view of the matter, we find ourselves unable to sustain
the impugned judgment of the learned Tribunal. In our view, the tenor
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of the judgment dated 8 November 2012 of the learned ASJ resulted
in the petitioner being entitled to be appointed as SI, as he had been
otherwise found fit for appointment.
Conclusion
42. As a result, the writ petition succeeds and is allowed. The
impugned judgment dated 10 June 2022 passed by the learned
Tribunal is quashed and set aside. The respondents are directed to
grant appointment, to the petitioner, as SI, consequent to the DPE-
2017, w.e.f. the date when others who had participated in the
examination and succeeded, were granted appointment. The petitioner
shall not be entitled to back wages but shall be entitled to all other
benefits, including notional fixation of pay from the date when others,
who had participated with the petitioner and had been appointed as SI,
joined the service.
43. The respondents are directed to implement this judgment within
a period of four weeks.
44. There shall be no orders as to costs.
C. HARI SHANKAR, J.
DR. SUDHIR KUMAR JAIN, J.
November 4, 2024
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