Central Administrative Tribunal - Delhi
Hosiyar Singh vs Comm. Of Police on 19 May, 2023
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O.A. No. 2274/2016
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No. 2274/2016
Order reserved on: 22.03.2023
Order pronounced on: 19.05.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Hoshiyar Singh, (Fresh appointment)
Roll No. 809979
S/o Sh. Pratap Singh,
R/o Village- Gunjasari,
Post-Dungarana, Tehsil - Bhadra,
District - Hanumangarh, Rajasthan - 335502
...Applicant
[By Advocate(s): Mr. Sachin Chauhan]
Versus
1. Govt. of NCTD through
The Chief Secretary
Govt. of NCTD,
A-wing, 5th Floor,
Delhi Secretariat, New Delhi - 110113
2. The Commissioner of Police
Police Headquarters, MSO Building,
I.P. Estat, New Delhi.
3. The Additional Dy. Commissioner of Police,
Delhi Police,
Recruitment Cell, NPL,
Delhi
...Respondents
[By Advocate(s): Mr. Puneet Rathi for Ms. Rashmi Chopra]
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O.A. No. 2274/2016
ORDER
By Hon'ble Mr. Manish Garg, Member (J)
1. Brief Facts:-
1.1 The facts of the case reveal that the applicant applied for the post of Constable (Driver) in Delhi Police during the recruitment held in the year 2012 and selected provisionally against Roll No. 809979. He got selected on the basis of merit in the written, physical, interview and medical tests.
The applicant was served with a show cause notice (SCN) dated 23.09.2014, whereby he was put under notice as to why his candidature for the post of Constable (Driver) in Delhi Police - 2012 be not cancelled. He preferred a reply to the SCN. Thereupon, the respondents passed an Office Order dated 21.10.2014, rejecting the candidature of the applicant for the post of Constable (Driver) without considering the submissions and pleas raised by him within the body of reply to the SCN; thus causing great prejudice to him. He approached this Tribunal by filing OA No. 3966/2014 and vide Order/judgment dated 21.05.2014, following directions were issued:-
"2. In view of the pendency of appeal (ibid) before the Honble Jaipur High Court, we refrain from adjudicating the present OA on merits and dispose of the same with a direction that in the event of modification of the penalty imposed upon the applicant by the trial Court and conversion of the same to his release on probation to 3 O.A. No. 2274/2016 maintain good behavior and conduct, the Screening Committee would reconsider his candidature in terms of the provisions of Standing Order No.398/2010 and in the event of dismissal of the appeal, it would be open to applicant to revive the present OA for adjudication on merits."
1.2 The Additional Sessions Judge, Khetri (Rajasthan) vide judgment dated 08.05.2015 has given the benefit of Section 4 of Probation of Offenders Act, 1958. Thereafter, the Department issued another SCN No. XII/175/2014/11288/Rectt. Cell (R.IV)/NPL dated 30.10.2015, whereby, the candidature of applicant for the post of Constable (Driver) is put on notice. The same is reproduced herein below:-
"On receipt of your character & antecedents report from DM/Hanumangarh (Rajasthan), it was revealed that a criminal case vide FIR NO.125/2012 dated 23.02.2012 u/s 279/336 IPC, PS/Khetri (Rajasthan) was registered against you. Later on, the above-said criminal case was decided by the Hon'ble Court vide order dated 14.05.2012 and you were convicted in the above said criminal case. On scrutiny of application form and attestation from filled up by you on 08.06.2012 & 24.09.2013 respectively, it was revealed that you had disclosed the facts of your involvement in the above said criminal case in the relevant column of Attestation Form. Accordingly, your case was examined by a Screening Committee duly constituted by the CP/Delhi consequent upon your conviction in criminal case FIR No. 125/2012 dated 23.02.2012 u/s 279/336 IPC, PS/Khetri (Rajasthan), who after due consideration not recommended you case for appointment to the post of Constable (Diver) in Delhi Police, 2012.4
O.A. No. 2274/2016 In view of the observation of Screening Committee, a Show Cause Notice was issued to you vide memo. No. 73080-81/Rectt. Cell (r-IV)/NPL dated 23.09.2012 proposing therein as to why your candidature for the post in question should not be cancelled for the reasons mention therein. In response to SCN, you submitted your reply dated 14.10.2014 which was considered in detail alongwith relevant record and found not justifiable, as such your candidature for the post in question was cancelled vide memo. No. 124976/ Rectt. Cell (R- IV)/NPL dated 21.10.2014.
Aggrieved with the decision, you file an OA No.3966/2014- Hoshiya Singh Vs. GNCT of Delhi & others which was listed before the Hon'ble Tribunal on 21.05.2015 and the same was disposed of (with OA No.546/2015 and other similar connected matters) with the following directions:-
In view of the pendency of appeal (ibid) before the Honble Jaipur High Court, we refrain from adjudicating the present OA on merits and dispose of the same with a direction that in the event of modification of the penalty imposed upon the applicant by the trial Court and conversion of the same to his release on probation to maintain good behavior and conduct, the Screening Committee would reconsider his candidature in terms of the provisions of Standing Order No.398/2010 and in the event of dismissal of the appeal, it would be open to applicant to revive the present OA for adjudication on merits."
In compliance of the directions dated 21.05.2015, your case has been again examined and it has been found that you had filed a criminal appeal before the Hon'ble High Court in order to seek the benefit of Section 12 of Probation of Offender Act just to gain benefit for appointment in Delhi Police which is not acceptable in the eyes of law as your were involved in a case of rash and negligent driving of a heavy overloaded truck endangering the human life and you are not found fit to the post of Const. (Driver) in Delhi Police." 5 O.A. No. 2274/2016 1.3 The applicant made a reply to the aforesaid SCN.
Thereupon, the respondents passed an order dated 02.06.2016, again rejecting his candidature for the post of Constable (Driver) without considering the submissions and pleas raised in the reply to SCN, which has caused great prejudice to the applicant.
1.4 Based on the above narrated facts, the applicant has filed this OA seeking the following reliefs:-
"8.1 To quash and set aside the show cause notice dated
02.06.2016 and order dated 30.10.2015 whereby the candidature of the applicant to the post of the constable driver is cancelled and to further direct the respondent that applicant be given appointment to the post of Constable (Driver) with all consequential benefits including seniority & promotion and pay & allowances. Or/and Any other relief which this Hon'ble court deems fit and proper may also be awarded to the applicant." 1.5 In support of his case, learned counsel for the applicant relied upon the decision rendered by the Hon'ble High Court of Delhi in the case of Sandeep Singh Vs Government of NCTD - WP (C) NO.5675/2017 decided on 10.12.2019.
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2. Per contra, learned counsel for the respondents, opposing grant of relief in OA, relied on the averments made in counter affidavit. He had contended that in compliance of the directions dated 21.05.2015 passed by this Tribunal, the applicant's case was carefully re-examined by the Screening Committee, duly taking into account his reply to the SCN dated 07.11.2015, and it was found that the applicant was driving heavy truck in rash and negligent manner endangering the human life. He pleaded guilty and hence, the charges were proved. The applicant was fined for the offence by the trial court, which was challenged before the Hon'ble High Court in the year, 2015 only when his case was not recommended by the Screening Committee. The Hon'ble High Court, vide judgment dated 08.05.2015, also found him guilty for offences u/s 279/336 IPC but the fine was set aside. He was also bound to maintain good behavior and maintenance in the area for a period of one year. The applicant's reply to the SCN was not found convincing. Hence, his case was not recommended by the Screening Committee for appointment to the post of Constable (Driver) in Delhi Police due to previous conduct and acceptance of guilt by the applicant before the Court of law. 7 O.A. No. 2274/2016
3. The learned counsel relied upon case of Union of India Vs Methu Meda (Civil Appeal No.6238/2021) decided on 06.10.2021. It pertained to a case of kidnapping under Section 347/327/323/506 (Part-II) and 364-A IPC. The Hon'ble Apex Court had no occasion to deal with Standing Order Nos.371/2011 and 398/2010, more so clause 9 of the Standing Order No.398/2010 in right perspective, which stipulates that "If any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 this will also not be viewed adversely by the department for his/her suitability for government service." The case of the applicant does not fall within the ambit of Annexure -A appended with aforesaid Standing Order No.398/2010 and mentioned in paragraph 6 thereof, which lays down the following offences involving moral turpitude.
"6) Such candidates against whom chargesheet in any criminal case has been filed in the court and the charges fall in the category of serious offences or moral turpitude, though later acquitted or acquitted by extending benefit of doubt or the witnesses have turned hostile due to fear of reprisal by the accused person(s), he/she will generally not be considered suitable for government service. However, all such cases will be judged by the Screening Committee of PHQ to assess their suitability for the government job. The details of criminal cases which involve moral turpitude may kindly be perused at Annexure 'A'." 8 O.A. No. 2274/2016
4. ANALYSIS 4.1 'Probation' in criminal law is a period of supervision over an offender, ordered by the court often in lieu of incarceration. The concept of probation from the Latin, probate, "testing" has historical roots in the practice of judicial reprieve. In English common law, prior to the advent of democratic rule, the Courts could temporarily suspend the execution of a sentence to allow a criminal defendant to appeal to the monarch for a pardon. 4.2 As per, "Webster" dictionary meaning of Probation is "the act of proving, proof, any proceeding designed to ascertain character". Thus, probation means a period of proving or trial. The offender has to prove that he is worthy of probation.
4.3 United Nations According to the United Nations, Department of Social Affairs, the release of the offenders on probation is a treatment device prescribed by the Court for the persons convicted of offences against the law, during which the probationer lives in the community and regulates his own 9 O.A. No. 2274/2016 life under conditions imposed by the Court or other constituted authority, and is subject to the supervision by a probation officer.
4.4 United States Probation first developed in the United States when John Augustus, a Boston cobbler, persuaded a Judge in the Boston Police Court in 1841 to give him custody of a convicted offender, a "drunkard", for a brief period and to help the man to appear rehabilitated by the time of sentencing. Even earlier to this, the practice of suspending a sentence was used as early as 1830 in Boston, Massachusetts, and became widespread in US courts, although there was no statutory provision for such a practice. At first, judges, most notably Peter Oxbridge Thatcher of Boston, used "release on recognizance" or bail and simply refrained from taking any further action. In 1878, the mayor of Boston hired a former police officer, the ironically named "Captain Savage" to become what many recognize as the first official probation officer. By the mid- 19th century, however, many Federal Courts were using a judicial reprieve to suspend sentence, and this posed a legal question.
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In 1916, the United States Supreme Court in Ex parch United States Petitioner Mandamus Judge Billets (also known as the Billets Case) held that Federal Judge Billets was without power to suspend a sentence indefinitely. This decision led to the passing of the National Probation Act of 1925, thereby allowing Courts to suspend the imposition of incarceration and place an offender on probation.
Massachusetts developed the first statewide probation system in 1878 and by 1920, 21 other States had followed suit.
With the passage of the National Probation Act on March 5, 1925, signed by President Calvin Coolidge, the US Federal Probation Service was established. On the state level, pursuant to the Crime Control and Consent Act of 1936, a group of states entered into an agreement wherein they would supervise probationers and parolees who reside in each other's jurisdictions on each other's behalf. Known as the Interstate Compact For the Supervision of Parolees and Probationers, this agreement was originally signed by 25 States in 1937. By 1951, all the States in the United States of America had a working probation system and ratified the Interstate Compact Agreement. In 1959, the new States of Alaska and Hawaii, the Commonwealth of Puerto Rico, 11 O.A. No. 2274/2016 and the territories of the Virgin Islands, Guam, and American Samoa ratified the act as well. 4.5 United Kingdom The Probation of Offenders Act 1907 is an Act of the United Kingdom Parliament, commonly referred to as just the Probation Act.
The Act allows judges wide latitude to dismiss a charge tried summarily against a defendant even when the court thinks it is proved, or to conditionally discharge a defendant (whether the charge is tried summarily or on indictment). The power may be invoked when the court is of the opinion that having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, or that it is expedient to release the offender on probation.
In practice, cases may be dismissed under the Probation Act for a defendant on condition that he pays a contribution to charity, or repays an amount stolen, or pays 12 O.A. No. 2274/2016 the costs arising from his actions. They may also be dismissed where the offence is technical or trivial. The application of the Act has occasionally caused controversy where victims or persons affected by the crime feel that the dismissal is inappropriate.
Despite the name, a dismissal under the Probation Act does not put the offender on probation in the sense of having to report to and engage with a probation officer, unless it is expressed to do so. Indeed, if a defendant is "given the Probation Act", it does not count as a criminal conviction, although it has been known to negatively affect travel abroad.
4.6 Indian context 4.6.1 From early 1800 to the present date, probation has tried to reform, remake, remould the offenders into honest, good and law-abiding citizens. In India, the main legal articulation to the reformatory framework for the probation theory is found in procedural code. Later the Children Act, 1908 additionally enabled the court to discharge certain guilty parties waiting on probation because of their good conduct. The extent of arrangements of probation law was 13 O.A. No. 2274/2016 expanded further by the enactment in 1923 resulting in the Indian Jails Committees Report (1919-1920). In 1931 the Government of India arranged a Draft Probation of Wrongdoers Bill and flowed it to the then Provincial governments for their perspectives.
4.6.2 A Bill on Probation of Offenders was introduced in Lo Sabra on November 18, 1957. A Joint Committee was formed to consider the Bill allowing for the release of prisoners on probation or after proper admonition and related matters. On 25 February 1958, the Joint Committee delivered its report to Lo Sabra. In Parliament, the Probation of Offenders Act was adopted on the advice of the Joint Committee. Probation in India is used as an institutional method of treatment. The western does not allow the use of institutional methods for probation. They administer probation by voluntary organisations of sociologists and psychologists. They consider that the judges should not interfere with this.
4.6.3 The main aim behind the Probation of Offender Act, 1958 is to give an opportunity to offenders to reform themselves rather than turning into hardened criminals. 14 O.A. No. 2274/2016 4.6.4 Section 562 of the Code of Criminal Procedure,1898 (after amendment it stands as Section 360 of the Code of Criminal Procedure, 1973) provides that any person not below twenty-one years of age who may have not been convicted for an offence for imprisonment up to seven years or not convicted to death or imprisonment of life can be released on the basis of probation for good conduct. 4.6.5 In the case of Jugal Kishore Prasad v. The State of Bihar, the Supreme Court stated that the aim of the law is to deter the juvenile offenders from turning into obdurate criminals as a result of their interaction with seasoned mature-age criminals in case the juvenile offenders are sentenced to incarceration in jail. It is observed that the Act is in accordance with the present trend of penology, which says that effect should be made with accordance to change and remould the offender and not to retributive justice. Modern criminal jurisprudence recognizes that no one is born criminal. A good number of crimes are a result of a socioeconomic environment.
4.6.6 The Probation of the Offenders Act, 1958 excludes the application of Section 360 of the Code of Criminal Procedure, 1973 whenever the Act is applied. Sections 3 to 12 of the Probation of the Offenders Act, 1958 deal with the 15 O.A. No. 2274/2016 procedures of the court to deal with the release of the offenders. The important aspects of the provisions are discussed in five ways:
4.6.7 Admonition Section 3 of the Probation of the Offenders Act, 1958 deals with the power of court to release the offender after admonition. An Admonition, in literal terms, means a firm warning or reprimand. Section 3 says how the offender is benefited on the basis of admonition after satisfying the following conditions:
(i) When any person is found guilty of committing an offence under Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code,1860 or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law
(ii) An offender should not previously be convicted for the same offence.
(iii) The Court considers the nature of the offence and the character of the offender.
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(iv) The Court may release the offender on probation of good conduct applying Section 4 of the Act, instead of sentencing him and,
(v) The Court may release the offender after due admonition, instead of sentencing him.
4.6.8 Probation on good conduct Section 4 of the Probation of the Offenders Act, 1958 talks about the release of the offender on the basis of good conduct.
(i) Section 4 of the Act is not applicable if the offender is found guilty of an offence with death or imprisonment for life.
(ii) The Court has to consider the circumstances of the case including the nature of the offence and the character of the offender.
(iii) The court may pass a supervision order to release the offender on probation of good conduct. The supervisory period is not to be shorter than one year. The probation officer must supervise the individual for such a span in such a situation. In the supervisory order, the name of the probation officer should be listed.
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(iv) The Court can direct the offender to execute a bond, with or without sureties, to appear and receive sentence when called upon during such period which should not exceed a period of three years. The court may release the offender on good behaviour.
(v) The Court may put appropriate conditions in the supervision order and the court making a supervision order explain to the offender the terms and conditions of the order. Such supervision order should forthwith be furnished to the offender.
(vi) Probation officer's report is not compulsory to enforce this rule, but if the information is required on record, the Court shall take into account the probation officer's information before granting a probation order for good behaviour.
5. Case laws in Indian Context 5.1 In Ramji Nissar v. The State of Bihar; AIR 1963 SC 1088, the Hon'ble Supreme Court observed that the object of the Act, 1958 is to prevent the turning of youthful offenders into criminals by their association with hardened criminals of mature age within the walls of a prison. The method adopted is to attempt their possible reformation instead of inflicting on them the normal punishment for 18 O.A. No. 2274/2016 their crimes. The person's age problem is important not for the purpose of assessing his or her guilt, but rather for the purpose of punishing the crime for which he or she is found guilty. Consequently, if a Court determines that the defendant was not under the age of 21 on the day the court found him guilty, Section 6 does not apply. 5.2 In Daulat Ram v. The State of Haryana AIR 1972 SC 2334, it was held by Hon'ble Supreme Court that the aim of this Section was to protect the youth. The juvenile offenders would not be sent to jail if their crime was not as serious as to punish them with life imprisonment or death. Therefore, the provision should be liberally construed keeping in view the spirit embodied therein. 5.3 The Hon'ble Court in Jugal Kishore Prasad v. State of Bihar (1972) 2 SCC 633, explained the rationale of the provision in the following terms:
"The object of the provision is to prevent the conversion of youthful offenders into obdurate criminals as a result of their association with hardened criminals of mature age in case the youthful offenders are sentenced to undergo imprisonment in jail."19
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5.4 In Smt. Devki v. The State of Haryana, AIR 1979 SC 1948, it was observed by Hon'ble Apex Court that Section 4 would not be extended to the abominable culprit who was found guilty of abducting a teenage girl and forcing her to sexual submission with a commercial motive. 5.5 In Phul Singh v. the State of Haryana, AIR 1980 SC 249, the Hon'ble Apex Court held that the provision of Section 4 should not be mistaken and applied easily in undeserving cases where a person in early twenties commits rape. The court, thus, refused the application of probation on such heinous nature of crime and convicted the person. 5.6 Further, the Hon'ble Apex Court in Keshav Sitaram Sali v. The State of Maharashtra, AIR 1983 SC 291, held that the appellant was an employee of the Railways at the Paldhi Railway Station. He abetted the execution of a charcoal theft crime committed by Bhikan Murad in the case before the Special Judicial Magistrate First Class (Railways), Bhusawal, on the charges of charcoal stealing. The learned Magistrate acquitted the appellant of that crime, and the State Government filed an appeal before the Bombay High Court against the acquittal judgment passed by the learned Magistrate. He was charged with a fine of Rs. 500 and in 20 O.A. No. 2274/2016 default of payment, rigorous imprisonment for two months. The subject matter of theft was a quantity of coal valued at Rs. 8. The Supreme Court held that in case of minor thefts, the High Court should extend the benefit of Section 3 or Section 4 of the Probation of Offenders Act,1958 or Section 360 of the Code of Criminal Procedure,1973 rather than imposing fines.
5.7 In Dalbir Singh v. The State of Haryana, AIR 2000 SC 1677, the Hon'ble Supreme Court took the opinion that it is appropriate for the defendant to be placed on probation for his good conduct, given that the facts of the situation are needed to be taken into account. One of the circumstances informing the aforementioned opinion which cannot be omitted is "the essence of the offence." Thus, Section 4 can be redressed where the court recognizes the circumstances of the situation, in particular the "character of the crime," when the court decides whether it is reasonable and necessary for the execution of a defined reason that the defendant should be released on the grounds of good conduct.
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6. This Tribunal in OA No.2497/2016, titled Vikram Singh Vs. GNCTD, on 07.03.2023 has observed as under:-
"The perusal of records and case law cited would reveal that there is very thin line distinction between the law laid down by the Hon'ble Apex Court in case of concealment of material information/ non-disclosure of criminal antecedents, i.e., FIR and its status more particularly, in light of the fact that appointment is sought in disciplined force such as Delhi Police. What is to be seen is that non -disclosure was fatal in given facts of case, gravity of offence(s), whether the acquittal simplicitor discharge or Hon'ble acquittal , Whether it is a case of giving the benefit of doubt, age of the applicant at the time of commission of alleged crime, place of crime, his social status and background."
7. The relevant part of Standing Order No. 398/2010 'Policy For Deciding Cases Of Candidates Provisionally Selected In Delhi Police Involved In Criminal Cases (Facing Trial Or Acquitted)' reads as under:-
"During the recruitment s made in Delhi Police, several cases come to light where candidates conceal the fact of their involvement in criminal cases in the application Form/Attestation Form in the hope that it may not come to light and disclosure by them at the beginning of the recruitment process itself may debar them from participating in the various recruitment tests. Also the appointment if he/she has been acquitted but not honorably.
In order to formulate a comprehensive policy, the following rules shall be applicable for all the recruitment's conducted by Delhi Police:-
1).xxx xxx xxx 22 O.A. No. 2274/2016
2).xxx xxx xxx
3).If a candidate had disclosed his/her involvement and/or arrest in criminal cases, complaint case, preventive proceedings etc. and the case is pending investigation or pending trial, the candidature will be kept in abeyance till the final decision of the case. After the court_x0012_ judgment, if the candidate is acquitted or discharged, the case will be referred to the Screening Committee of the PHQ comprising of Special Commissioner of Police/Administration, Joint Commissioner of Police/Headquarters and Joint Commissioner of Police/Vigilance to assess his/her suitability for appointment in Delhi Police.
4) If a candidate had disclosed his/her involvement in criminal case, complaint case, preventive proceedings etc. both in the application form as well as in the attestation form but was acquitted or discharged by the court, his/her case will be referred to the Screening Committee of PHQ to assess his/her suitability for appointment in Delhi Police.
5).xxx xxx xxx
6). Such candidates against whom charge-sheet in any criminal case has been filed in the court and the charges fall in the category of serious offence s or moral turpitude, though later acquitted or acquitted by extending benefit of doubt or the witnesses have turned hostile due to fear of reprisal by the accused person, he/she will generally not be considered suitable for government service.
However, all such cases will be judged by the Screening Committee of PHQ to assess their suitability for the government job. The details of criminal cases which involve moral turpitude may kindly be perused at Annexure -A
7) Such cases in which a candidate had faced trial in any criminal case which does not fall in the category of moral turpitude and is subsequently acquitted by the court and he/she discloses about the same in both application form as well as attestation form will be judged by the Screening 23 O.A. No. 2274/2016 Committee to decide about his/her suitability for the government job.
8) xxx xxx xxx
9). If any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 this will also not be viewed adversely by the department for his/her suitability for government service.
10). If a candidate was involved in a criminal case which was withdrawn by the State Government, he/she will generally be considered fit for government service, unless there are other extenuating circumstances.
Annexure - A as mentioned in Clause 6 above lays down the following offence s involving moral turpitude:
1. Criminal Conspiracy (Section 120-B, IPC)
2. offence s against the State (Sections 121, IPC)
3. offence s relating to Army, Navy and Air Force (Sections 131-134, IPC)
4. Offence against Public Tranquility (Section153A & B, IPC).
5. False evidence and offence s against Public Justice (Sections 193-216A, IPC)
6.offence s relating to coin and government stamps (Section 231-263A, IPC).
7.offence s relating to Religion (Section 295-
297, IPC)
8.offence s affecting Human Body (Sections 302- 304, 304B, 305-308, 311-317, 325- 333, 335, 347, 348, 354, 363-373, 376-376-A, 376-B, 376-C, 376-D, 377, IPC)
9.offence s against Property (Section 379-462,IPC)
10.offence s relating to Documents and Property Marks (Section 465-489, IPC)
11.offence s relating to Marriage and Dowry Prohibition Act (Section 498-A, IPC)"
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8. Clause 3 of the Comprehensive Policy delineated in the Standing Order is material for the present case. It refers to the Screening Committee comprising high police officers. After a candidate who has disclosed his involvement is acquitted or discharged, the Committee has to assess his/her suitability for appointment.
9. Clause 6 states that those against whom serious offences or offences involving moral turpitude are registered and who are later on acquitted by extending benefit of doubt or because the witnesses have turned hostile due to fear of reprisal by the accused person shall not generally be considered suitable for government service. However, all such cases will be considered by the Screening Committee manned by senior officers. In our opinion, the word generally indicates the nature of discretion. As a matter of rule, such candidates have to be avoided. Exceptions will be few and far between and obviously must be substantiated with acceptable reasons.
10. 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 25 O.A. No. 2274/2016 police force even if they are acquitted or discharged if it feels that the acquittal or discharge is on technical grounds or not honorable. 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.
11. Hence, in peculiar facts of the case , wherein the due process has not be followed inasmuch as the respondents have not taken into consideration their own Standing Order 26 O.A. No. 2274/2016 Nos.371/2011 & 398/2010 in right perspective. It is noticeable that offence(s) in FIRs against the applicant does not fall within the scope and ambit of the Annexure -A to Standing Order No.398 falling within the serious offence or "moral turpitude" so as to deny employment. Even otherwise, in present case, the applicant has been honorably acquitted in both FIRs by the Court of Competent jurisdiction.
12. It is a settled law that nobody can claim benefit under the Act as a matter of right - Commandment 20 BK. ITB Police v. Sanjay Binjola, AIR 2001 SC 2058. In State of Sikkim v. Dorjee Sherpa And Ors, 1998 CriLJ 2685, it was held that the Court should not take technical views in certain cases and should take into consideration some other aspects such as possibility of losing the job, for invoking the provisions of Probation of Offenders Act even in serious offence(s). It has further been contended that the Court should also take into consideration that the convicts belonging to middle class families without any criminal antecedent often become victim of circumstances because of undesirable company and other evil influences available to such young generation.27
O.A. No. 2274/2016
13. In its recent decision in Lakhvir Singh v. State of Punjab, 2021 SCC OnLine SC 25, the Hon'ble Apex, speaking through the Division Bench of Sanjay Kishan Kaul and Hrishikesh Roy, JJ., has observed that Section 6 of Probation of Offenders Act, 1958 leaves no discretion to the Court as it provides, "A Court 'must not' sentence a person under the age of 21 years to imprisonment unless sufficient reasons for the same are recorded, based on due consideration of the probation officer's report." In the said case, the appellants were held to be youngsters, aged about 20 and 19 years when they attacked the complainant with dagger and knife, and inflicted 11-12 injuries on his forehead, abdomen and neck. The complainant was thrown out of his taxi and the appellants fled with the taxi. In the trial, the appellants were convicted by the trial court and sentenced rigorous imprisonment for 7 years. The said SLP was filed to challenge the dismissal of their appeal against the trial court's findings. Contention before the Court was a compromise deed was arrived at between the complainant and the appellants, whereof the complainant had stated that he did not want to pursue any action against the appellants and had no objection to their release on bail or acquittal. However, counsel for the State submitted that the minimum 28 O.A. No. 2274/2016 sentence provided by the statute under Section 397 of IPC was 7 years and the same cannot be reduced below that period; to which the appellants sought benefit under Probation of Offenders Act, 1958. The Supreme Court observed that statement of objects and reasons of the Act explain the rationale for the enactment and its amendments as also to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be sub served. Section 6 of the Act, as per its own title, has provided for restrictions on imprisonment of offenders under 21 years of age. The said provision reads as under:
"6. Restrictions on imprisonment of offenders under twenty-one years of age.--(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under section 3 or section 4, and if the court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so. Reliance was placed by the Court on Masarullah v. State of Tamil Nadu, (1982) 3 SCC 485, wherein observations 29 O.A. No. 2274/2016 were made that "in case of an offender under the age of twenty one years on the date of commission of the offence, the Court is expected ordinarily to give benefit of the provisions of the Act and there is an embargo on the power of the Court to award sentence unless the Court considers otherwise, 'having regard to the circumstances of the case including nature of the offence and the character of the offender".
The Court stated, "the underlying purpose of the provision being reformative and Section 6 being a special provision, it was enacted to prevent the confinement of young persons under 21 years of age in jail, to protect them from the pernicious influence of hardened criminals. The Bench, while citing Ishar Das v. State of Punjab, (1973) 2 SCC 65, reiterated that non-obstante clause in Section 4 of the Act reflected the legislative intent that provisions of the Act have effect notwithstanding any other law in force at that time. It was further noticed that the fact that Section 18 of the Act did not include any other such offence s where a mandatory minimum sentence has been prescribed suggests that the Act may be invoked in such other offence s. The Bench concluded that the benefit of probation under the said Act was not excluded by the provisions of the mandatory minimum sentence under Section 397 of IPC. Considering the facts that the appellants had served about half of their sentence and the complainant had forgiven them, also that there was no adverse report against the appellants about their conduct in jail, the Court held, it was a fit case that the benefit of probation could be extended to the appellants. Thus, the appellants were ordered to be released on probation of good conduct on their entering into a bond with two sureties each to ensure that they maintain peace and good behaviour."
14. While examining what has been stated herein above, in present case the impugned Office Orders dated 30 O.A. No. 2274/2016 02.06.2016 and 30.10.2015, wherein it has been recorded inter alia to the effect that "In compliance of the directions dated 21.05.2015, your case has been again examined and it has been found that you had filed a criminal appeal before the Hon'ble High Court in order to seek the benefit of Section 12 of Probation of Offender Act just to gain benefit for appointment in Delhi Police which is not acceptable in the eyes of law as your were involved in a case of rash and negligent driving of a heavy overloaded truck endangering the human life and you are not found fit to the post of Const. (Driver) in Delhi Police." The said finding has been arrived in perverse and pre-determined manner contrary to records of the case. The said finding is contrary to the departments' own guidelines wherein more so ignoring clause 9 of the Standing Order No.398/2010 in right perspective, which stipulates that "If any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 this will also not be viewed adversely by the department for his/her suitability for government service." The case of the applicant does not fall within the ambit of Annexure-A as mentioned in Clause 6 above, which lays down the offences involving moral turpitude. It is also important to note that even though the impugned order records the fact that "On scrutiny of application form and attestation from filled up by you on 08.06.2012 & 24.09.2013 respectively, it was revealed that you had 31 O.A. No. 2274/2016 disclosed the facts of your involvement in the above said criminal case in the relevant column of Attestation Form. Accordingly, your case was examined by a Screening Committee duly constituted by the CP/Delhi consequent upon your conviction in criminal case FIR No. 125/2012 dated 23.02.2012 u/s 279/336 IPC, PS/Khetri (Rajasthan), who after due consideration not recommended you case for appointment to the post of Constable (Diver) in Delhi Police, 2012." the present case does not fall within the mischief of concealment. It is before passing of the impugned Office Orders dated 02.06.2016 and 30.10.2015, the Appellate Court, i.e., Court of Additional Sessions Judge, Khetri (Rajasthan) in Criminal Regular Appeal No. 11/2015 granted benefit of doubt vide judgment dated 08.05.2015.
15. On carefully perusing the records, we find that there is no order passed by the Hon'ble High Court of Jaipur, as recorded in the impugned order dated 30.10.2015 and the same is contrary to records of the case and shows absolutely proper application of mind. Hence, without going through the records of the case, passing of such impugned order(s) in cryptic manner contrary to records of the case, is highly deprecated, which has adverse effect on dispensation of fair 32 O.A. No. 2274/2016 play on the administrative side. In the present case, offence does not fall within the ambit of Annexure -A appended to as mentioned in Clause 6 above, which lays down the offences involving moral turpitude. Even otherwise also, if the said benefit is not extended under the provisions contained in Probation of Offenders Act, 1958, the purpose of the Act is defeated.
CONCLUSION
16. We have no doubt in our mind in setting aside the impugned Office Orders dated 02.06.2016 and 30.10.2015. Consequently we restore the candidature of applicant for the post the Constable (Driver) in Delhi Police. We would have passed a direction to grant offer of appointment to the applicant but we refrain to do so in our judicial wisdom, which is a discretion vested in State instrumentality and not to lay a wrong precedent, however, we direct the respondents to process and re-examine by constituting a Screening Committee to consider the case of the applicant in light of their own policy document, i.e., clause 9 of the Standing Order No.398/2010 in right perspective, which stipulates that "If any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 this will also not be viewed adversely by the department for his/her 33 O.A. No. 2274/2016 suitability for government service" and also in light of case law cited above.
17. We hope that the Screening Committee shall apply its own policy decision as highlighted herein above. The said exercise shall be completed within a period of two months from the date of receipt of a certified copy of this order. In the event, the Screening Committee passes an order in favour of the applicant, the Competent Authority shall issue offer of appointment to the applicant thereafter within a period of one month of date of decision taken by the Screening Committee. Needless to mention, the applicant shall be entitled to consequential benefits on notional basis only. The actual benefit shall be extended to the applicant upon his actual joining.
18. The O.A. is allowed in the aforesaid terms.
No Order as to costs.
( Manish Garg ) ( Tarun Shridhar )
Member (J) Member (A)
/sm/