Madhya Pradesh High Court
Nicky Sonker vs The State Of Madhya Pradesh on 30 July, 2015
1 W.P. No.18683 of 2013
W.P. No. 18683 of 2013
30.07.2015
Smt. Indira Nair, learned Sr Adv assisted by Shri Mahendra
Pateria and Shri Brijesh Choubey, learned counsel for the petitioner.
Shri Vikram Johari, learned PL for respondent-State.
1. The petitioner has filed this petition against the order dated 24.7.2013, (Ann. P-13). The Home Department invited applications Online for appointments to the post of Police Constables. The petitioner submitted his application for recruitment named as (Police Constable Recruitment Test 2012). He cleared the written examination as well as the physical proficiency test. The petitioner was directed to submit his choice of district in regard to appointment on the post of Police Constable. He submitted his choice for district Narsinghpur.
2. The petitioner was called for medical test and he had also cleared the medical test. The petitioner filled the character verification form in the column "criminal record", the petitioner mentioned that a criminal case was instituted against him and other fourteen persons on 31.5.2007. He was tried in the aforesaid case by the Judicial Magistrate, Ist Class for commission of offences punishable under Sections 323/34, 452, 506-B, 427, 336 of IPC. He 2 W.P. No.18683 of 2013 was acquitted by the court from the said offences, vide judgment dated 20.1.2011.
3. The Superintendent of Police forwarded the case of the petitioner to the Police Head Quarter, Bhopal. The Inspector General of Police in his noting recorded that in accordance with the directions issued by the Home Department the petitioner was eligible to be appointed in Government Service. Thereafter his name was included in the selected list.
4. Thereafter, vide order dated 24.7.2013, the Director General, Police has held that the petitioner was not fit for appointment in the Police Department on account of registration of offences punishable under Sections 323/34, 452, 506-B, 427, 336 of IPC against him.
5. The respondents in the reply submitted that a criminal case was registered against the petitioner for commission of offences punishable under Sections 323/34, 452, 506-B, 427, 336 of IPC. He was acquitted after giving benefit of doubt vide Istagasha No. 191 /07 preventive step was also taken against the petitioner under Section 107, 116 (3) of the Cr.P.C. Looking to the aforesaid facts of the case, the competent authority considered the case of the 3 W.P. No.18683 of 2013 petitioner and the petitioner was not found fit for appointment to the post of Constable.
6. Learned Senior Counsel appearing on behalf of the petitioner has contended that acquittal of the petitioner was honourable one and there was no evidence in the criminal case, hence the finding recorded by the authority that the petitioner was given benefit of doubt is contrary to law. From the judgment passed by the Magistrate, it is clear that the petitioner was falsely implicated in the criminal case and in such circumstances, the petitioner can not be denied the benefit of appointment on the post of Constable on account of his selection. In support of her contentions learned senior counsel relied on the judgment of Supreme Court in Commissioner of Police, New Delhi and another Vs. Mehar Singh and others reported in (2013) 7 SCC 685 and Commissioner of Police and others Vs. Sandeep Kumar, reported in (2011) 4 SCC 644.
7. Contrary to this, learned P.L. has contended that the petitioner was tried in a criminal case, although he was acquitted. The offence was serious in nature, hence competent authority has rightly rejected the claim of the petitioner for appointment on the post of Constable. In support of his contention, learned PL has 4 W.P. No.18683 of 2013 relied on the judgment of the Supreme Court in State of M.P. and others Vs. Parvez Khan reported in 2015 (1) M.P.H.T. 1 (SC).
8. Undisputed facts of the case are that the petitioner in his verification form mentioned that he was tried for commission of offences punishable under Sections 323/34, 452, 506-B, 427, 336 of IPC by the Magistrate and he was acquitted from the said offences. Copy of the judgment of acquittal passed by the Magistrate has been filed by the petitioner alongwith petition as Annexure P-7, dated 20.1.2011 passed in Case No. 1652 of 2007. The findings recorded by the court in acquitting the petitioner from commission of offences are as under :-
6-fodkl tkV ¼v0lk01½ izdj.k esa Qfj;knh gS us U;k;ky; esa mifLFkr vkjksihx.k dks tkuus ls badkj dj fn;k gS rFkk dFku fn;k gS fd mlds lkFk dksbZ ?kVuk ugha ?kVh Fkh izFke lwpuk iz0ih0 1 ds v ls v Hkkx ij vius gLrk{kj gksuk Lohdkj fd;k gS ds vfrfjDr izFke lwpuk fjiksVZ iz0ih0 1 esa fd, x, vfHkdFku dk dksbZ leFkZu ugha fd;k gSA Nk;kckbZ ¼v0lk0 2½ ds }kjk Hkh ?kVuk dk dksbZ leFkZu ugha fd;k x;k gSA 7- bl rjg fodkl tkV ¼v0lk01½ tks fd izdj.k esa Qfj;knh ,oa vkgr gS rFkk Nk;kckbZ ¼v0lk02½ dh lk{; ls ;g izekf.kr ugha gksrk gS fd vkjksihx.k us ?kVuk fnukad Qfj;knh ds vkoklh; edku 5 W.P. No.18683 of 2013 esa izos'k dj vkijkf/kd x`g vfrpkj dkfjr fd;k rFkk gkFk eqDds o MaMs ls ekjihV dj migfr dkfjr fd;k ,oa njoktk rksM+dj fj"Vh dkfjr dh rFkk tku ls ekjus dh /kedh nsdj vkijkf/kd vfHk=k"k dkfjr fd;k ,oa iRFkj ls pksV igqWpkdj migfr dkfjr fd;kA vfHk;kstu }kjk vU; fdlh lk{kh dh lk{; Hkh ugha djkbZ xbZ gS ftlls ;g izekf.kr gks lds fd vkjksihx.k us Qfj;knh ds lkFk ?
kVuk ?kfVr dh FkhA
8- bl rjg mijksDr lk{; dh foospuk ds vk/kkj ij
vfHk;kstu dgkuh lafnX/k izrhr gksrh gSA vRk% vfHk;qDrx.k dks lansg dk ykHk nsdj /kkjk 323@34] 452] 506 ch] 427] 336 Hkknfo ds vijk/k esa nks"k;qDr fd;k tkrk gSA 9- vfHk;qDrx.k ds tekur eqpyds Hkkj;qDr fd;s tkrs gSA tekurnkj dks mueksfpr fd;k tkrk gSA 10- izdj.k esa dksbZ laifRr is'k ugha gSA
9. From the findings recorded by the court, it is clear that no witness supported the prosecution case. PW-1, PW-2 clearly deposed that no offence was committed by the petitioner. The prosecution did not produce any other evidence. It means that the case of the petitioner was of no evidence, hence acquittal of the petitioner was honourable. The supreme Court in (2013) 7 SCC 685 has held as under :-
6 W.P. No.18683 of 2013
"15. Mr. Ajesh Luthra, learned counsel for the respondents submitted that the appellants' reliance on Sushil Kumar is misplaced because Sushil Kumar has been distinguished in Commissioner of Police v. Dhaval Singh[8]. Sushil Kumar was a case of concealment of facts whereas in this case, there is no concealment. Counsel submitted that, many a time, due to personal enmity and political reasons, people are falsely implicated in criminal cases. Very often, criminal cases end in acquittal or are compounded. Compounding or acquittal of a criminal case should, therefore, not act as an obstacle to a person being appointed to any post. Counsel submitted that an order of acquittal is always honourable. An acquittal is an acquittal for all purposes. Relying on Ghurey Lal v. State of U.P., counsel submitted that a person is innocent unless proved otherwise. Administrative authorities cannot adjudicate the suitability of a selected candidate in this manner. Quasi judicial authorities cannot overreach the judgments delivered by a competent court of law. Counsel submitted that Lok Adalats have been created under the provisions of the Legal Services Authorities Act, 1987 to encourage compromises. If a selectee is to be denied appointment by adjudging him unsuitable because the criminal case against him has ended into acquittal only because of compromise, then, it will defeat the object of the said Act.7 W.P. No.18683 of 2013
10. In the present case the acquittal of the petitioner in criminal case is honourable acquittal because there was no evidence at all. This aspect has not been considered by the authority while passing the order. The application for taking prohibitory action against the petitioner under Section 16 of the Cr.P.C. is of no consequence.
11. The judgment relied on by the learned PL State of M.P. and others Vs. Parvez Khan (supra) is distinguishable on facts because in the aforesaid judgment the person was tried in two criminal cases. In one case he was prosecuted for commission of offences under Sections 323, 324, 325, 294, 506-B/34 of IPC and other case under Section 452, 394, 395 of IPC. Certainly commission of offences under Section 394, 395 of IPC is serious offnece. But in the present case looking to the nature of the offneces of the petitioner and the facts that he was acquitted honounably, in my opinion, denial of appointment to the petitioner on the post of Constable is arbitrary and illegal.
12. Consequently, the petition filed by the petitioner is allowed. The impugned order dated 24.7.2013, (Ann. P-13) is hereby quashed. It is ordered that the petitioner be given appointment on the post of Constable in pursuance to his selection within a period of 8 W.P. No.18683 of 2013 four weeks from the date of receipt or copy of this order. The petitioner shall not be eligible to receive arrears of salary but he shall be entitled to get benefit of seniority and other benefits from the date of his initial appointment on which date other persons were appointed in pursuance to same selection to the post of Constable.
13. No order as to costs.
( S.K. Gangele ) Judge bks