Central Administrative Tribunal - Delhi
Sunil Kumar S/O Shri Singhraj vs Government Of Nct Of Delhi on 21 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 2531/2013 New Delhi this the 21st day of August, 2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K.Bhardwaj, Member (J) Sunil Kumar S/o Shri Singhraj Aged about 24 years Roll No.406590, Recruit Ct. (Ex.) in Delhi Police R/o Village Rasulpur, P.O. Pacheri Bari, Tehsil Buhanas, District Jhunjhuni, Rajasthan Applicant (Through Shri Kaushal Yadav, Advocate) VERSUS 1. Government of NCT of Delhi Through the Commissioner of Police, Police Head Quarters, I.P. Estate, New Delhi. 2. Deputy Commissioner of Police Recruitment, New Police Lines, Kingsway Camp, Delhi ... Respondents O R D E R
Mr. A.K. Bhardwaj, Member (J) The applicant participated in the selection for recruitment to the post of Constable (Male) in Delhi Police commenced vide advertisement dated 20.02.2009. He successfully cleared the physical endurance and measurement test as well as written test and was declared provisionally selected. Thereafter, he was subjected to medical examination and was found fit. When the selection process was on, one Suba Singh lodged FIR No.188/2009 under Sections 363/366 IPC at P.S. Buhana, District Jhunjhunu, Rajasthan, alleging that his minor daughter namely Mintu had been kidnapped. On 14.03.2011, the respondents issued a show cause notice to the applicant calling upon as to why his candidature for the post of Constable in the aforesaid selection should not be cancelled for the reason that he was involved in the aforementioned criminal case. Questioning the said notice, he filed Writ Petition No.4098 of 2012 before the Honble Delhi High Court, which was disposed of with liberty to the applicant to make a representation to the competent authority to revisit the said notice in view of the decision of the Honble Delhi High Court in Robin Singhs case. Thus, the applicant submitted a fresh reply to the show cause notice pleading therein that he was not named in the FIR No.188/2009 under Sections 363/366 (ibid) and was subsequently implicated in the case so registered on the basis of statement of the victim Mintu recorded under Section 164 of Cr.PC. According to the stand taken by the applicant in the said representation, in the deposition made by the victim before the court, she categorically stated that she had gone to Jaipur on her own and nobody had kidnapped her. Having considered the representation of the applicant, the DCP (Rectt) passed the order dated 18.06.2013 canceling the candidature of the applicant. Questioning the show cause notice dated 14.03.2011 and the order dated 18.06.2013 (ibid), the applicant filed the present OA.
2. Learned counsel for the applicant submitted that the victim herself deposed before the police and also in the Court that she had gone to Jaipur Mahila Avam Suraksha Kendra, Jaipur City at her own and that her father had lodged a false complaint of her kidnapping. It is further submitted that in the FIR got registered by the father of the victim, one Ravinder @ Billu, resident of Rasoolpur was named as accused and the victim stood to her stand during the camera trial also. Learned counsel stated that finally the applicant was acquitted of the charges leveled against him in the criminal case.
3. We find that in the statement of the victim recorded under Section 164 Cr.PC., she stated that Arvind and Sunil came on a motor cycle and by covering her mouth made her to sit on motor cycle. Sunil was riding the bike and Arvind made her to sit in between. Since her mouth was covered, she could not have cried. They took her to Goda Balawa forcefully, which was 7-8 fields away from the road and raped her. For easy reference, the statement placed by the applicant on record as Annexure A-7 to OA is extracted hereinbelow:
At about 8 PM I went to ease myself at that time it was living in my parents house. Then Arvind and Sunil came on a Motor Cycle and by covering my mouth made me to sit on Motor Cycle. Sunil was riding the bike and Arvind made me to sit in between. Since my mouth was covered I could not have cried. Then they took me to Goda Balawa. They took me forcefully. They took me 7-8 fields away from the Road and raped me forcefully. Only Arvind has done the act which a husband is used to do with his wife. That act was done against my wishes. At that time Sunil was watching the same from some distance. On soughting I was threatened of my life and my mouth was tied. After that I was brought to the Road from filed and I was put in a Bolero jeep. My eyes were covered and I was kept in car full night while taking rounds and at 9 AM I was dropped at Jaipur. In Jaipur I was left in Gandhinagar. From there I went to the Police Station. From Police Station I went to Shakti Sthala, thereafter my parents took me to the house at Pathana. I want to go to my in-laws place and also want to live at my parents house.
4. In view of the statement so made by the victim and the fact that during the trial, the matter was compromised even prior to the deposition of the victim, the authority competent to do so, had cancelled the candidature of the applicant for his appointment as Constable in Delhi Police. Relevant extract of the impugned order of canceling the appointment reads as under:
The record shows that the victim in her statement u/s 164 Cr.P.C. clearly deposed about the role played by you in the commission of offence against her. However, in trial, she turned hostile. The social stigma which, unfortunately, gets attached to a girl victim of a crime of being in the custody of male for couple of days before she was left may have led the family to re-think on the issue in view of the treatment is being extended to the victim in our social society, the victims are entered in a compromise as happened in this case. During trial, the matter was compromised even prior to the deposition of victim. In view of the above, it is not difficult to discern reasons why the victim, her father turned hostile. The evidence also shows that when the victim was left by the accused person in the area of Gandhi Nagar (Jaipur) after committing rape, she went to the Police Station for help and was sent to Nari Niketan. There was no reason for her to go to Police Station in order to seek help, if she was not taken forcibly.
Insensitivity of male Police officers on gender issues is a matter of concern and of lately has roused the passion of the common man and women who have repeatedly taken to the streets against Police apathy towards gender crimes. Thus where a male has a brush with a criminal law pertaining to a gender crime, one has to be much more careful. Hence, I find no reason that you are implicated falsely, in this case.
5. It is also borne out from the record that the applicant was acquitted from the criminal charge on the ground that the witness turned hostile. Relevant extract of the order of the Court of Upper Session Judge, Khetri (Raj) reads as under:
The scene of crime was inspected after registration of case U/S 363/366 IPC on the basis of the complaint. Statement of witnesses were recorded. Mintu was got examined for ascertaining her age. Ravinder was also examined medically. Victims Salwar and underwear was recovered. Accuseds underwear was seized. Accuseds were arrested. After investigation, the charge U/S 363/366/376 was filed before the concerned court and which has been received on comittal.
xxxx xxxx xxxx xxxx PW-1 is the most material witness who is the victim. She was declared hostile. She stated in her examination-in-chief that on 20.07.09 she alone had gone to Jaipur and nobody accompanied her. She had gone on her own free will. Nobody had taken her. Nobody raped her. Nobody kidnapped her. Same is the evidence of PW-2 Suva Lal who is father of victim. Thus, both witnesses turned hostile and did not support the prosecution story. There is no other evidence against the accused. Therefore, it is a case of lack of evidence and accused are liable to be acquitted for lack of evidence.
6. Very recently i.e. on 2.07.2013, their Lordships of the Honble Supreme Court in Commissioner of Police, New Delhi & anr. Vs. Mehar Singh, Civil Appeal No.4842/2013, viewed that whether a candidate is discharged or acquitted of the criminal offences, has nothing to do with the question as to whether he should be appointed to the post. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. In the said case also, the case of the respondent Mehar Singh was compromised and it was urged that the acquittal recorded pursuant to a compromise should not be treated as a disqualification because that will frustrate the purpose of Legal Services Authorities Act, 1987. However, the Honble Supreme Court viewed that while deciding whether a person against whom a criminal case was registered and who was later 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. As could be viewed by the Honble Supreme Court, such decision could be taken by the Screening Committee created for that purpose by the Delhi Police. Relevant extract of the judgment of the Honble Supreme Court reads as under:
21. The expression honourable acquittal was considered by this Court in S. Samuthiram. In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 of the IPC and under Section 4 of the Eve-teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal (12), where in somewhat similar fact situation, this Court upheld a banks action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in departmental proceedings. This Court observed that the expressions honourable acquittal, acquitted of blame and fully exonerated are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression honourably acquitted. This Court expressed that when the accused is acquitted after full consideration of prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted. In light of above, we are of the opinion that since the purpose of departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it.
xxxx xxxx xxxx xxxx xxxx
24. In this connection, we may usefully refer to Sushil Kumar. In that case, the respondent therein had appeared for recruitment as a constable in Delhi Police Services. He was selected provisionally, but, his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of constable was not found desirable. Accordingly, his name was rejected. He approached the Tribunal. The Tribunal allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304, Section 324 read with Section 34 and Section 324 of the IPC, he cannot be denied the right of appointment to the post under the State. This Court disapproved of the Tribunals view. It was observed that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State. This Court observed that though the candidate was provisionally selected, the appointing authority found it not desirable to appoint him on account of his antecedent record and this view taken by the appointing authority in the background of the case cannot be said to be unwarranted. Whether the respondent was discharged or acquitted of the criminal offences, the same has nothing to do with the question as to whether he should be appointed to the post. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. It was argued that Sushil Kumar must be distinguished from the facts of the instant case because the respondent therein had concealed the fact that a criminal case was registered against him, whereas, in the instant case there is no concealment. It is not possible for us to accept this submission. The aspect of concealment was not considered in Sushil Kumar at all. This Court only concentrated on the desirability to appoint a person, against whom a criminal case is pending, to a disciplined force. Sushil Kumar cannot be restricted to cases where there is concealment of the fact by a candidate that a criminal case was registered against him. When the point of concealment or otherwise and its effect was not argued before this Court, it cannot be said that in Sushil Kumar this Court wanted to restrict its observations to the cases where there is concealment of facts.
25. Reliance placed by the respondents on Dhaval Singh is misplaced. In Dhaval Singh, the respondent had not mentioned the fact that a criminal case was pending against him in the application form submitted by him on 21-27/8/1995 seeking post of a constable. He was provisionally selected and was interviewed pending verification of his character. Before any order of appointment could be issued in his favour, he, realizing the mistake, wrote a letter to the Deputy Commissioner of Police on 15/11/1995 that a criminal case was pending against him and he had inadvertently not mentioned this fact in the application form. On the ground that the respondent had concealed a material fact, his candidature was cancelled on 20/11/1995. He was acquitted in the criminal case on 8/12/1995. On being so acquitted, he filed a representation before the Commissioner of Police which was turned down. He approached the Tribunal. The Tribunal set aside the cancellation of candidature of the respondent and the rejection of his representation. Aggrieved by this, the Commissioner of Police approached this Court. This Court confirmed the Tribunals order basically on the ground that the order of cancellation dated 20/11/1995 did not show that the information furnished by the respondent vide his letter dated 15/11/1995 was communicated to the Commissioner of Police. There was no indication in the record that the competent authority had a look at the letter. Therefore, the cancellation of candidature was without any proper application of mind and without taking into consideration all relevant materials. The Tribunals order was upheld on the ground of non-application of mind by the Commissioner of Police to a vital fact. Besides, this Court also noted that pursuant to the Tribunals order the respondent therein was already reinstated. This decision will have no application to the present case. Reliance on Ghurey Lal is also misplaced. There can be no debate over the observation made by this Court in that case that an accused is presumed to be innocent till proved guilty. These observations were made while dealing with a reversal of acquittal by the High Court. They are not relevant to the present case.
26. So far as respondent - Mehar Singh is concerned, his case appears to have been compromised. It was urged that acquittal recorded pursuant to a compromise should not be treated as a disqualification because that will frustrate the purpose of Legal Services Authorities Act, 1987. We see no merit in this submission. Compromises or settlements have to be encouraged to bring about peaceful and amiable atmosphere in the society by according a quietus to disputes. They have to be encouraged also to reduce arrears of cases and save the litigants from the agony of pending litigation. But these considerations cannot be brought in here. In order to maintain integrity and high standard of police force, the Screening Committee may decline to take cognizance of a compromise, if it appears to it to be dubious. The Screening Committee cannot be faulted for that.
27. 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 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 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 Committees decision is not mala fide or actuated by extraneous considerations, then, it cannot be questioned.
28. 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.
29. The Screening Committees proceedings have been assailed as being arbitrary, unguided and unfettered. But, in the present case, we see no evidence of this. However, certain instances have been pointed out where allegedly persons involved in serious offences have been recommended for appointment by the Screening Committee. It is well settled that to such cases the doctrine of equality enshrined in Article 14 of the Constitution of India is not attracted. This doctrine does not envisage negative equality (Fuljit Kaur). It is not meant to perpetuate illegality or fraud because it embodies a positive concept. If the Screening Committee which is constituted to carry out the object of the comprehensive policy to ensure that people with doubtful background do not enter the police force, deviates from the policy, makes exception and allows entry of undesirable persons, it is undoubtedly guilty of committing an act of grave disservice to the police force but we cannot allow that illegality to be perpetuated by allowing the respondents to rely on such cases. It is for the Commissioner of Police, Delhi to examine whether the Screening Committee has compromised the interest of the police force in any case and to take remedial action if he finds that it has done so. Public interest demands an indepth examination of this allegation at the highest level. Perhaps, such deviations from the policy are responsible for the spurt in police excesses. We expect the Commissioner of Police, Delhi to look into the matter and if there is substance in the allegations to take necessary steps forthwith so that policy incorporated in the Standing Order is strictly implemented.
30. Our attention is drawn to certain orders of this Court where, according to the respondents, special leave petitions filed by the State, arising out of similar fact situations, have been dismissed. It is not necessary for us to state that in limine dismissal of special leave petition does not mean that this Court has affirmed the judgment or the action impugned therein. The order rejecting the special leave petition at the threshold without detailed reasons does not constitute any declaration of law or a binding precedent. This submission is, therefore, rejected.
31. In the ultimate analysis, we are of the view that the opinion formed by the Screening Committee in both these cases which is endorsed by the Deputy Commissioner of Police (Recruitment), Delhi, that both the respondents are not suitable for being appointed in the Delhi Police Force does not merit any interference. It is legally sustainable. The Tribunal and the High Court, in our view, erred in setting aside the order of cancellation of the respondents candidature. In the circumstances, the appeals are allowed. The orders of the Delhi High Court impugned in both the appeals are set aside. The cancellation of candidature of the respondents - Mehar Singh and Shani Kumar is upheld.
7. In the present case, ex facie, the victim had compromised the matter with the accused. The relevant extract of the deposition made by the victim in the cross examination reads as under:
It is correct that there is a compromise of us alongwith accused. It is wrong to suggest that due to the said compromise I have been deposing falsely to save the accused persons.
8. In view of the aforementioned, we are not inclined to issue notice in the OA and the same is accordingly dismissed.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) /dkm/