Central Administrative Tribunal - Delhi
Shani Kumar S/O Madan Singh vs Commissioner Of Police on 24 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1821 of 2011 Misc. Application No.145/2012 Reserved on : 18th January, 2012 Date of decision : 24th January, 2012 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. (MRS.) VEENA CHHOTRAY, MEMBER (A) Shani Kumar S/o Madan Singh, R/o village & Post Butrara, Distt. Muzaffarnagar (UP). Applicant ( By Shri Ajesh Luthra, Advocate ) Versus 1. Commissioner of Police, Police Headquarters, IP Estate, New Dehi. 2. Deputy Commissioner of Police (Recruitment), New Police Lines, Delhi-110009. Respondents ( By Shri Amit Anand, Advocate ) O R D E R Justice V. K. Bali, Chairman:
The candidature of Shani Kumar, who aspired to be a constable in Delhi Police, has since been cancelled pursuant to a show cause notice dated 03.03.2011 given to him, vide orders dated 22.03.2011. The show cause notice and the consequent order have been challenged in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985.
2. Brief facts of the case reveal that the respondents invited applications for recruitment on the post of Constable (Exe.) in 2009-10. The applicant had admittedly made mention of his involvement in a criminal case, both in his application as well as attestation forms. He cleared all the tests. However, a show cause notice came to be issued to the applicant on 03.03.2011 proposing to cancel his candidature. The applicant responded to the same vide his reply dated 14.03.2011, but, as mentioned above, his candidature has been cancelled vide order dated 22.02.2011. It appears that after selection of the applicant on the post of Constable (Exe.), the matter went before the screening committee, which opined in consideration of the facts of the case that it would not be desirable to appoint the applicant in Delhi Police. The facts on which the applicant was involved in the criminal case, as mentioned in the show cause notice, are that on complaint of one Yoginder, when he along with his brother Upender was sitting on Chabutra outside the house of Sukhdev on 19.05.2007 at abut 7.30 p.m., noticed the applicant along with Ankit, Cheenu and Ram Bhajan coming on two motorcycles towards village side. He recognized the applicant and others as they all belonged to his village. The applicant and other accused abused, threatened and opened fire at his brother Upender, who sustained bullet injuries on his thigh. He raised alarm, and on seeing some villagers, the applicant along with others fled away from the spot on the motorcycles. Upender was taken to Government Hospital, Shamli. The complainant further mentioned that all the accused were dreaded criminals and had murdered six persons of the village on 14.10.2004, and requested to take legal action against them being absconding criminals. It is further mentioned in the show cause notice that both the material witnesses turned hostile and did not depose in tune with the prosecution version, and as such all the accused, including the applicant, were acquitted by the court vide order dated 14.05.2010 by extending benefit of doubt. The committee observed that the applicant along with others was found involved in a case of attempt to murder with deadly weapons and caused bullet injuries to the brother of the complainant, and that he along with others apparently managed acquittal, as due to their dreaded acts, no one dared to depose against them, and that such type of person is unfit for police service. The applicant in his reply stated that he was falsely implicated in the criminal case, and acquitted after a full-fledged trial, and that he could not be made to suffer in the matter of appointment only because an FIR was registered against him, when he was not at fault. He further stated that the court of competent jurisdiction, while acquitting him, returned specific finding that the prosecution had failed to prove its case, and that from the deposition of prosecution witnesses, it was evident that he had no role in the crime. In the impugned order, the explanation furnished by the applicant has been rejected by observing as follows:
The lea(s) put forth by you in the reply have been considered and found not convincing because of the reasons that you along with Ankit, Cheenu and ram Bhajan abused, threatened and opened fire at Upender, who sustained bullet injuries on his thigh. He raised alarm and on seeing some villagers, you along with others fled away from the spot on Motor Cycles. Updnder was taken to Govt. Hospital Shamli. The complainant further mentioned that all the accused were dreaded criminals and had murdered six persons of village Butrara on 14.10.2003 and requested to take legal action against them being absconding criminals. During prosecution, both the material witnesses turned hostile and did not depose in tune with the prosecution story. As such, all the accused including you were acquitted by the court vide order dated 14.05.2010 by extending benefit of doubts. The Committee has observed that you along with others were found involved in a case of attempt to murder with deadly weapons and caused bullet injuries to the brother of the complainant. The accused apparently managed acquittal, as due to their dreaded act no one dared to depose against them.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed their reply contesting the cause of the applicant.
4. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. It is admitted position that the present is not a case of concealment of facts. The applicant, as mentioned above, had mentioned his involvement in the criminal case, and that he had been acquitted. It is in consideration of the nature of his involvement and gravity of the offence, as also the manner of acquittal, that the applicant has been found unfit to be appointed as a Constable in Delhi Police. We may mention at the very outset that if the witnesses may not support the prosecution case and may be declared to be hostile and cross examined as well, it may be taken, at the most, that the acquittal is not by returning a finding of not guilty, and the benefit of doubt may have been given, but surely, in such an event the prosecution version cannot be taken as a gospel truth. We may only mention at this stage that perusal of the judgment recorded by the learned trial court would reveal that the witnesses have supported the prosecution case except the identity of the accused, when they were declared hostile and cross examined by the public prosecutor. It is rather strange to note that even when there was no evidence whatsoever either recorded before the criminal court or available with the department from any relevant material as regards the allegations made against the applicant by the complainant of the criminal case that the applicant and others were desperate persons and killed six persons earlier, how such a fact was taken into consideration in judging suitability of the applicant for appointment on the post of Constable. Further, the respondents, it appears, had not even taken into consideration in its right perspective the prosecution version, as originally laid, emanating from the complaint of Yoginder. It may be recalled that even if one was to go by his statement in its entirety, he had not made mention of any previous enmity. He had in fact made no allegations as regards the motive that may have actuated the applicant and others to resort to firing. In the circumstances, therefore, it had to be taken that there was no previous enmity, and that being so, it could be a sudden affair. It is no doubt true that the applicant is stated to have abused and threatened the brother of the complainant, but, as mentioned above, there is no mention of any motive on the part of the applicant. Further, it is not known even from the statement of Yoginder as made before the police, as to who resorted to firing. The respondents would not even like to examine the nature of injuries suffered by the only person. It may be, however, mentioned that one person sustained injury on his thigh, but what was the nature of the injury, is not known. It has not been even mentioned in the judgment passed by the learned judge who tried the offence against the applicant and others. It has not been examined as to whether the injuries were result of assault by a fire arm or not. Further, there was no evidence either before the criminal court or from any other source that the witnesses had not deposed out of fear of the applicant. We are of the firm view that such extenuating circumstances which existed on records were not taken into account at all, and further that such facts were considered for which there was no evidence either before the criminal court or any material before the respondents. We may only refer to one judgment recorded by the Honble High Court of Delhi in WP(C) No.5510/2010 in the matter of Government of NCT of Delhi & another v Dinesh Kumar, decided on 11.11.2010, along wit another writ petition bearing WP(C) No.5527/2010 in the matter of Government of NCT of Delhi v Subhash Chand. The facts of one of the cases disposed of by the High Court revealed that the respondent therein was an accused in an FIR u/s 307/323/324/34 IPC. There were two other co-accused, and all were acquitted vide judgment and order dated 15.09.2008. As per the FIR which was lodged by the injured complainant, the incident took place after the complainant and the accused were returning to the village after attending a marriage ceremony, and had some dispute pertaining to someone not dancing during the marriage processions onwards journey to the house of the bride. It was apparent that the friends had fought. Wile dealing with the case aforesaid, the High Court observed as follows:
20. As regards Dinesh Kumar, we note that the FIR did relate to an offence punishable under Section 307 IPC. But in the absence of any evidence as to which out of the three accused had assaulted the person who received grievous injuries and noting that Section 34 IPC was taken aid of to make liable all three accused, noting that the acquittal was on merits, no doubt two witnesses turned hostile, further, noting the young age of Dinesh Kumar, applying the law laid down in Robin Singhs case (supra), we are of the opinion that the impugned decision of the Tribunal which has directed the petitioner to give employment to Dinesh Kumar needs no interference. In the present case, as mentioned above, it is not known as to who out of the four accused, opened fire, injuring the brother of the complainant. The nature of injuries is also not known. It is not even known as to whether the injury was grievous or simple, and as a matter of fact, could be by fire arm. Admittedly, it is on a non-vital part of the body. The applicant in this case would also be young.
5. Finding considerable merit in this Original Application, we allow the same. Order dated 22.03.2011 cancelling the candidature of the applicant for the post of Constable in Delhi Police is quashed and set aside, with direction to the respondents to offer appointment to the applicant as expeditiously as possible, and definitely within a period of six weeks from receipt of this order. There shall, however, be no order as to costs.
( Dr. Veena Chhotray ) ( V. K. Bali )
Member (A) Chairman
/as/