Central Administrative Tribunal - Delhi
Anoop Kumar (Roll No.434444) vs Government Of Nct Of Delhi Through on 23 July, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.178/2008 This the 23rd day of July, 2008 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Anoop Kumar (Roll No.434444) S/O Shri Pushp Chander, R/O RE-157/II, G Block, Prem Nagar, Najafgarh, New Delhi-43. Applicant ( By Shri Anil Singal, Advocate ) Versus 1. Government of NCT of Delhi through Commissioner of Police, Police Headquarters, IP Estate, New Delhi. 2. Deputy Commissioner of Police, 4th Bn, DAP, New Police Lines, Kingsway Camp, Delhi. Respondents ( By Shri Ajesh Luthra, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Desiring to be a constable in Delhi Police, Anoop Kumar, the applicant herein, filled up his application form on 24.3.2006 clearly disclosing that a criminal case FIR No.526/04 u/s 308/325/34 IPC was registered against him and pending trial. He was provisionally selected having qualified the physical, medical, written examination as well as interview/personality test. While those who successfully competed for the post of constable were being appointed, the applicant, however, received a show cause notice dated 11.12.2007 (Annexure A-1) for cancellation of his candidature on the ground that he was acquitted of the charge since witnesses turned hostile, and that it was not an honourable acquittal. The applicant responded to the show cause notice vide his reply dated 26.12.2007, and as the same was not found convincing, his candidature has been cancelled vide order dated 8.1.2008 (Annexure A-2). It is this order that has been called in question in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985.
2. In response to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter reply contested the cause of the applicant. Rejoinder to the counter reply filed on behalf of the respondents has also been filed by the applicant.
3. The controversy in the present case is in a very narrow compass. It is admitted position that the present is not a case of concealment of involvement of the applicant in a criminal case. The applicant had indeed made mention of such involvement in his application form. It is also not in dispute that the Honble Delhi High Court in WP (C) No.6042-43/2005 and other connected writ petitions in the matter of Government of NCT of Delhi & Others v Deepak Kumar & Others, decided on 28.11.2005 held that the mere fact that an applicant seeking appointment in Delhi Police who was involved in a criminal case has been acquitted, would not be enough to secure him a posting with Delhi Police. It is open for the department to deny appointment to a person who might have been acquitted in a criminal case, but before such action is taken, the nature of offence in which he might have been involved and the manner of acquittal has to be properly examined. Following the judgment of Honble Delhi High Court in case aforesaid, in OA No.2429/2006 and other connected OAs in the matter of Sanjeev Kumar & Others v Government of NCT of Delhi & Others, decided on 24.4.2008, we held thus:
11. In wake of judgment of Delhi High Court, which is an inter partes decision and, therefore, binding upon the parties and SLP against which has since been dismissed, in our considered view, it is not open for the applicants to contend that an acquittal is an acquittal and no distinction can be made on that behalf whether being honourable acquittal or acquittal on benefit of doubt. This was indeed the view of this Tribunal, which has been specifically overruled by the Division Bench of Delhi High Court. Honble Delhi High Court, as mentioned above, noted the findings of this Tribunal that there could be no different yardstick for those persons who have been acquitted honourably to be treated differently from those persons who were also involved in criminal cases but were acquitted on benefit of doubt. The Honble Bench observed that the applicants were involved in different nature of criminal cases and all of them were acquitted due to the fact that the witnesses turned hostile and did not support the prosecution case and were, therefore, acquitted on benefit of doubt. A distinction has, thus, been drawn between an honourable acquittal and acquittal on benefit of doubt.. Conscious of the decision of the Honble Delhi High Court in Deepak Kumar & Others (supra) and the one in Sanjeev Kumar & Others (supra), learned counsel representing the parties have thus only concentrated upon the nature of the offence in which the applicant was involved, and the manner of acquittal. The only other contention raised in the present case is that the applicant has been meted out discriminatory treatment inasmuch as, persons similarly situated have been appointed, whereas he has been ignored.
4. Before we may concentrate upon the limited controversy with regard to nature of offence and the manner of acquittal, we may refer to the show cause notice received by the applicant, his reply and the impugned order cancelling his candidature. Relevant part of the show cause notice dated 11.12.2007 reads as follows:
.Accordingly, your case has been examined in detail and found that while deciding the above-said criminal case all the main prosecution witnesses turned hostile and did not support the prosecution. Further, you were the main accused and you along with other accused have succeeded in winning over the 14 witnesses including complainant. This shows that the accused have managed to win over the prosecution witnesses either by unwanted pressure/influence which cannot be said to be honourable acquittal. The applicant in reply to the show cause, inter alia, mentioned that one Shri Brahm Prakash having roll number 400076 was also involved in a criminal case under Section 308 IPC and acquitted of the charge by the court as the matter was compromised by the parties and witnesses did not support the prosecution case, and that he was appointed as constable, but the candidature of the applicant has been discriminately proposed to be cancelled. The contents of the show cause notice and the order dated 8.1.2008, it would appear from the relevant part of the order reproduced below, are exactly and verbatim the same, and the plea raised by the applicant with regard to discrimination has not even been referred to in the impugned order:
.In response to Show Cause Notice you have submitted your reply on 26.12.2007, which has been considered in detail along with relevant record available on file. The same has not been found convincing because of the reasons that you were involved in case FIR No.526/2004 u/s 308/325/34 IPC, PS R.K.Puram, Delhi shows that while deciding the above-said criminal case all the main prosecution witnesses turned hostile and did not support the prosecution. Further, you were the main accused and you along with other accused have succeeded in winning over the 14 witnesses including complainant. This shows that the accused have managed to win over the prosecution witnesses either by unwanted pressure/influence which cannot be said to be honourable acquittal. Hence, you have been found not suitable for the post of Const. (Exe.) Male in Delhi Police and your candidature for the post of Const. (Exe.) Male in Delhi Police is hereby cancelled with immediate effect.
5. Shri Anil Singal, learned counsel representing the applicant, vehemently contends that the respondents, even though might have mentioned the manner of acquittal, but have not applied their mind to the nature of offence. It is urged that the narration of facts given in the FIR, even if accepted in its entirety, would not show that the applicant was the main accused, as has been opined in the impugned order; the offence alleged to have been committed by the applicant was not a heinous or a very serious crime; and that in similar circumstances the respondents chose to appoint one Brahm Prakash, who too was involved in a case u/s 308 IPC and acquitted in the same manner as the applicant.
6. Per contra, Shri Ajesh Luthra, learned counsel representing the respondents, would contend that the very mention of offences under Sections 308 and 325 IPC would make the involvement of the applicant to be a heinous crime, and that in any case, the manner of acquittal has been taken into consideration and it has been rightly found that since the applicant was acquitted as the witnesses had turned hostile, he could not be appointed.
7. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. From the judgment of acquittal recorded by the learned ASJ, New Delhi dated 24.8.2007 (Annexure A-3), it would appear that the applicant along with one Vikas was tried for offences u/s 308/325/34 IPC. Bittoo Singh, the first informant, on 8.8.2004 while lodging the FIR, stated that on 5.8.2004 he had gone to Central School, Sector 8, R. K. Puram at 1.30 pm to pick up his grandsons Manish Sagar and Piyush Sagar and when he left for his house along with both his grandsons and reached outside the school gate on service road at 1.40 pm, a motorcycle No. DL 49 SK 9393 on which there were two boys and two more boys who were near them started abusing him and also told him that his grandson had beaten up their brother few days ago. They also declared aaj tujhe hum dekhenge. He further told the police that one boy namely Vikas was also present there who was studying along with Piyush Sagar and had beaten him up many days ago. He suspected Vikas to have called those four boys outside the school who caught hold of him and grappled with him. In the meantime, Bittoo Singhs nephew Jaipal Singh also reached there who had come to pick up his nephew from school and when he saw that those boys were quarreling with him, he tried to rescue him and was also beaten by the boys. Two of those boys, namely, Ajay and Vikas were armed with dandas and one of the other two boys grappled with him and the fourth boy grappled with Jaipal. The boys, namely, Anoop (the applicant herein) and Vikas attacked them with dandas and both of them sustained injuries. He further informed that he could identify both the boys who grappled with both of them. The material witnesses, it appears from the judgment, turned hostile. The learned trial judge, while acquitting both the accused observed as follows:
In view of the testimony of PW1 to PW5 there is no incriminating evidence on record against both the accused persons that they had picked up quarrel with the injured and caused injuries on their person. Hence their statement u/s 313 CrPC is dispensed with. They are acquitted of the charges. The bail bonds stand discharged. We are surprised, rather distressed that even though it has been ordained authoritatively by judicial pronouncement that the nature of offence and the manner of acquittal has to be examined properly, the respondents appear to have ignored both. Denial of appointment to a citizen for all times to come is indeed a serious matter. The same cannot be dealt with so lightly so as not even to consider the attending circumstances leading to commission of crime, nature of offence that may appear from the contents of the first information report, statements of witnesses and the medical evidence. While considering the manner of acquittal, it may not be enough to simply observe that the witnesses had turned hostile, and by simply so observing, to deny appointment to a citizen. The judgment of the criminal court has to be taken into consideration with all the aspects leading to acquittal. The manner of acquittal, and in particular, as to whether the same is a clean acquittal or acquittal on benefit of doubt, has also to be taken into consideration. To elaborate, insofar as, the nature of offence is concerned, we may mention that some times the facts disclosed in the FIR supported with other material, even if taken to be gospel truth, may not constitute an offence under which an FIR is registered, challan presented and the accused tried. In a case of acquittal, where witnesses have not deposed in tune with the statements made by them before the police, the finding of acquittal is recorded without going into any other aspect of the case. If thus in a given case, the offence with which an accused is charged and tried, may not at all be gone into, his plea that the offence with which he was charged was not made out at all even from reading of the FIR and attending circumstances, has to be gone into at some stage. Making a mention of the offence with which a person might have been charged and put to trial is no way to determine the nature of offence. We are of the considered view that nature of offence is not exclusively determinable only on the label or sections on which an FIR may be registered. With a view to find gravity of offence for which a person may have faced criminal trial, the narration of facts in the FIR, supporting material and the medical evidence is required to be taken into consideration. Insofar as, the manner of acquittal is concerned, once again, the judgment of the criminal court has to be carefully gone into. In a given case, the witnesses may not have deposed in tune with their statements made before the police, but they may not have been declared hostile and cross-examined by public prosecutor. Such a situation arises when the prosecution witnesses may support the prosecution version to some extent and the public prosecutor may think that to the extent they have supported prosecution version, the finding of conviction can yet be recorded. He may thus not declare the witnesses to be hostile nor thus cross-examine them. In ultimate analysis, as to whether the accused has been acquitted by giving benefit of doubt or it is a case of clean acquittal, has also to be seen. In the present case, the narration of facts given in the FIR would reveal that four persons, including the applicant gave beatings to Bittoo Singh and Jaipal. Only two, out of four, were put to trial. In the FIR itself, Bittoo Singh appears to have made contradictory statements. In the first instance, he stated that two boys who were armed with dandas were Ajay and Vikas, whereas others had only grappled. He, however, later named the applicant as also one of those who had caused injuries to him. With a view to satisfy ourselves with regard to gravity of offence, we required the counsel representing the parties to produce before us the medico legal report of Bittoo Singh and Jaipal. The same has been made available to us. It appears that Bittoo Singh, the first informant, had received five injuries on his person. Two of the five injuries are swelling of lower wrist and right eye. Even though, two other injuries are of vertex of head and occipital front region, but all the five injuries are simple in nature. Jaipal, the other injured received four injuries, but for injury number (iii) which is one incisor teeth on lower maxilla broken, other injuries are simple in nature. It is only injury number (iii) on the person of Jaipal which can be said to have brought the offence under section 325 IPC. The provisions contained in section 308 IPC may not have been attracted in the facts and circumstances of the present case. We are conscious that we are not here to determine the controversy with regard to nature of offence, but surely, all these aspects were required to be taken into consideration by the concerned authorities in finding out the nature of offence. The situation where the criminal court may record a finding of conviction is entirely different. The concerned authorities in that event would have no choice but for to follow the judgment of the criminal court, but in a case where the relevant aspects of the case have not even been touched upon, it becomes duty of the high ranking police officers to take them into consideration while dealing with a serious matter like denial of appointment to a citizen. We may reiterate that the Honble Delhi High Court in Deepak Kumar & Others (supra) held that the nature of offence and manner of acquittal has to be gone into properly. Further, the concerned authorities have to find out if the offence alleged against a person involves moral turpitude and that the same is heinous, grave and committed with such evil propensities that he may not deserve to be appointed. Simply observing the provisions of IPC with which a person may be charged and tried, does not appear to be sufficient compliance of the directions issued by the Honble High Court. The observations made above would be more pertinent if the offence with which a person is charged and tried under the sections that might have been mentioned in the FIR may not appear to be so serious. To illustrate, whereas, it may be permissible to hold the nature of offence to be serious when a person is tried under sections 302, 376 and such other offences, the same may not be true when a person is not charged with such serious offences as mentioned above.
8. On the findings, as mentioned above, we would have normally remitted this case to the concerned authorities to have a fresh look at the matter in view of our observations made above, but what we find from the records is that in similar circumstances, the respondents employed one Brahm Prakash who too was involved in a case u/s 308 IPC. The applicant made such a mention in his reply to the show cause. He has reiterated the same in para 5.7 of the OA, which reads as follows:
5.7 Because the respondent failed to appreciate that in the present recruitment Sh. Brahm Prakash having Roll No.4000076 was also involved in a criminal case under S 308 IPC and acquitted of the charge by the Court as the matter was compromised by both the parties and witnesses did not support the prosecution case, was appointed as a constable, but the applicant was discriminated and arbitrarily his candidature was cancelled. In the corresponding paragraph of the counter reply, the fact stated in the pleadings of the OA, as mentioned above, has not been denied. All that has been mentioned is that each and every case is decided after considering all facts of the case like ground of involvement, gravity of offence and acquittal etc. It may be mentioned at this stage that this Tribunal while deciding OA Nos.2429/2006 and connected OAs (supra) was dealing with different cases, some of which were such which came to this Tribunal in a second round of litigation. The OAs initially filed by them were allowed by this Tribunal by holding that an acquittal is an acquittal and the mere fact that a person has been acquitted by giving benefit of doubt when the witnesses turn hostile, would not make any difference. This view of the tribunal did not find favour with the Division Bench of the Honble Delhi High Court, and all the matters were remitted to the Commissioner of Police to find out the nature of offences and the manner of acquittal, and accordingly pass appropriate orders in accordance with law. While defending the order of the Tribunal, the applicants had urged before the Honble High Court that there was clear and apparent discrimination even in the decision making process of the respondents as in some cases they had cancelled the candidature of few persons on the ground that they were not suitable for the post of constable, whereas in cases of some other similarly situated persons, against whom also there were criminal cases, the respondents had taken a decision to allow them to join and work as constable in the same police department. In support of the said contention, cases of Rajesh Kumar and Braham Pal were referred. Braham Pal, it was urged, was involved in a criminal case u/s 308 IPC and was acquitted of the charge by the court pursuant to compromise arrived at between the parties and as the witnesses did not support the prosecution case, and he was allowed to work as constable. On the aforesaid contention raised by the applicants, while remitting the case to the Commissioner of Police, the Honble High Court also observed that in some other cases the Commissioner of Police had allowed the applicants to join the post considering the gravity of the offence wherein they were involved. One of the aspects that had thus to be considered by the Commissioner of Police was to find out whether a person similarly situate to an applicant was appointed or not. This aspect of the case we have also referred to in our judgment in Sanjeev Kumar & Others (supra). There is absolutely no dispute that a person similarly situated has since been appointed. The applicant may not be right in saying that Braham Prakash was a candidate along with him, as it appears he competed in selection process held earlier, but nonetheless, there were no distinguishing features between the nature of offence and the manner of acquittal in his case and that of the applicant. This plea was specifically raised by the applicant and surely, as the respondents had no answer to the same, they just kept quiet over it. The learned counsel representing the applicant has relied upon a decision of this Tribunal in OA No.1495/2007 decided on 7.1.2008 in the matter of Virender Singh v Union of India & Others. The applicant therein was involved in a criminal case for offence u/s 308/34 IPC, and yet this Tribunal had directed the respondents to consider his candidature without taking into consideration his involvement in the criminal case, but the same appears to be distinguishable on facts. Acquittal in the said case was a clean acquittal. It was not a case of witnesses turning hostile and further, when the offence was said to have been committed, the applicant therein was a minor and had made application for appointment as constable after eight years of the incident. It is true that we have held in the case aforesaid that offence u/s 308 IPC is an attempt to commit culpable homicide not amounting to murder, maximum sentence prescribed for which is seven years, and it is not a heinous crime. The applicant, it appears, has been meted out with discriminatory treatment. The respondents cannot be permitted to have different yardsticks for different people. They have to have a uniform view when the facts presented before them are absolutely identical.
9. In view of the discussion made above, this Application is allowed. Direction is issued to the respondents to offer appointment to the applicant for the post of constable, if he may otherwise be entitled to. In other words, the appointment to the applicant would not be denied on the ground of his involvement in a criminal case. There shall be no order as to costs.
( Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/