Madhya Pradesh High Court
Vijay Paras Died Thr. Lrs 1) Vijay Paras vs The State Of Madhya Pradesh on 18 August, 2023
Author: Rohit Arya
Bench: Rohit Arya, Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 18 th OF AUGUST, 2023
WRIT APPEAL No. 249 of 2021
BETWEEN:-
VIJAY PARAS S/O SHRI BADAN SINGH, AGED ABOUT 26
Y E A R S , OCCUPATION - UNEMPLOYED, R/O
JADERUAKALA PINTO PARK MORAR, GWALIOR
(MADHYA PRADESH).
.....APPELLANT
(BY SHRI PRASHANT SHARMA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY, DEPARTMENT OF
HOME, VALLABH BHAWAN BHOPAL (MADHYA
PRADESH) - 462001.
2. THE DIRECTOR GENERAL OF POLICE, STATE OF
MADHYA PRADESH, POLICE HEADQUARTER,
JAHANGIRABAD BHOPAL (MADHYA PRADESH).
3. ADDITIONAL DIRECTOR GENERAL OF POLICE
(RECRUITMENT) BHOPAL (MADHYA PRADESH).
4. COMMANDANT, 17TH BATTALION, SAF, BHIND
(MADHYA PRADESH).
5. COMMANDANT, 26TH BATTALION SPECIAL
ARMED FORCE, GUNA (MADHYA PRADESH).
.....RESPONDENTS
(SHRI M.P.S.RAGHUVANSHI - ADDITIONAL ADVOCATE GENERAL FOR
THE RESPONDENTS/STATE)
Th is appeal coming on for admission this day, JUSTICE ROHIT
2
ARYA passed the following:
ORDER
This intra-court appeal is directed against the order dated 16.02.2021 passed by the learned Single Judge in Writ Petition No.22031/2019.
2. Facts relevant and necessary for disposal of the instant appeal are in narrow compass:
(i) The appellant applied for recruitment as Constable in the year 2017 pursuant to advertisement issued in that behalf by the respondent/State Government. The appellant was selected. Thereafter, for the purposes of character verification, he was required to fill-up the form. In column No. 12 of the said form, he disclosed that a criminal case under Section 306 of IPC with connected provisions is pending consideration before the Court. At the time of the scrutiny of application, since the case was pending, the exercise of scrutiny was deferred awaiting the judgment. The judgment was passed under Section 232 of the Cr.P.C. on 07.06.2019 in Sessions Trial No. 102/2019.
(ii) As a matter of fact, the trial Court after taking the evidence of prosecution, examination of accused and after hearing the prosecution and defence on the point, came to the conclusion that there was no evidence that the accused had committed the offence, therefore, the learned trial Judge, recorded an order of acquittal under section 232 of Cr.P.C.
In other words, the trial Court did not find it appropriate to conduct elaborate trial, regard being had to the material produced by the prosecution.
(iii) The said order was placed before the Scrutiny Committee. The Scrutiny Committee did not recommend confirmation of the appointment of the petitioner for the reasons as indicated in the impugned order dated 28/9/2019 (Annexure P/1 to the Writ Petition). The said order was under challenge before 3 the Writ Court on number of grounds.
(iv) The Writ Court, by the impugned order dated 16.02.2021, has endorsed the reasons assigned in the impugned order dt.28.09.2019 (Annexure P/1 to the Writ Petition) and expressed the view that even if petitioner was acquitted of the charges, still the department was well within its right to deny the petitioner appointment as Constable, relying upon the judgment of the Apex Court in the case of Commissioner of Delhi Police Vs. Mehar Singh reported in (2013) 7 SCC 685 and Avtar Singh Vs. Union of India and another reported in (2016) 8 SCC 471.
3. Shri Prashant Sharma, learned counsel for appellant, while taking exception to the impugned order, inter alia, made submissions that the learned Single Judge committed grave illegality in the matter of apreciating the factual matrix in hand particularly the order passed by the trial court on 07.06.2019. Learned counsel submits that the learned Trial Court after taking into consideration the evidence produced by the prosecution, defence and after hearing prosecution and defence counsel reached the conclusion that evidence on record did not even suggest for an elaborate trial much less trial and acquitted the appellant of charges levelled against him in exercise of powers under Section 232 of Cr.P.C. Said order attained finality as the same was never subjected to challenge before higher forum. Further elaborating the submissions, learned counsel submits that acquittal under Section 232 of Cr.P.C. in fact and in effect tantamount to that there was no evidence at all against the appellant in contradistinction to acquittal after elaborate trial where upon evaluation of evidence placed on record, trial court records the finding and thereafter conclusions. Hence, the order passed by the trial court under Section 232 of Cr.P.C. on 07.06.2019 is on a higher pedestal while evaluating 4 the accusations made against the appellant.
4. That apart, learned counsel also submits that the impugned order dt.28.9.2019 (Annexure P/1 to Writ Petition) is also polluted with illegality and patent perversity. The impugned order is sought to be justified that the conduct of the appellant tantamounted to moral turpitude on the strength of allegations as made in para 4 of the said order i.e. the alleged offence registered against the appellant under Sections 420, 467,468 and 471 of IPC, whereas there has been no such criminal case registered against the appellant or investigated or tried before any court at any point of time. Incorporation of such allegation speaks about grave prejudice, typical hostality and vindictive attitude of respondents, who were hellbent upon to deny the appellant his right to be appointed as Constable after having been selected. There is no rebuttal for such assertion in the counter affidavit. Besides, nothing is brought on record to contradict aforesaid facts.
5. Learned counsel submits that it is indeed unfortunate that the learned Single Judge treated such serious act of prejudice as a mere typographical error and ignored the ramifications of such prejudicial observation, which resulted into deprivation of right to employment violating fundamental right of the appellant under Sections 14 and 16 of the constitution of India. Learned counsel submits that the impugned order, therefore, cannot be sustained in the eyes of law.
6. Per contra, Shri M.P.S.Raghuvanshi, learned Additional Advocate General appearing for the respondents/State defended the impugned order with the submission that even if it was a case of acquittal, employer still has right to deny appellant's appointment as Constable in a disciplined police force, hence, 5 no exception thereto can be taken. It is noted at this juncture that Shri Raghuvanshi does not dispute that justification as contained in para 4 of the impugned order dt.28.09.2019 is dehors the record.
7. Upon hearing learned counsel for the parties, we are of the considered view that the learned Single Judge has fallen in error while justifying the impugned order as we find substantial force in the submissions of Shri Prashant Sharma, learned counsel for the appellant while he criticized the impugned order for both the reasons as elaborated in preceding paras. We conclude that regard being had to the nature of the order passed by the trial court under Section 232 of Cr.P.C, it was a case of clean acquittal, whereunder the appellant was acquitted of charges for want of sufficient evidence on record. As such, there was no need of elaborate trial. Besides, the justification of the impugned order as contained in para 4 of the impugned order dt.28.09.2019 is found to be factually incorrect for want of any such case registered or tried against the appellant at any point of time.
8. Consequently, Writ Appeal succeeds and is allowed. The impugned order dated 16.02.2021 passed by the learned Single Judge in W.P.No.22031/2019 is set aside and the order dated 28.09.2019 (Annexure P/1 to the writ petition) is quashed. It is hereby directed that the appellant shall be issued the appointment letter as Constable as on the date other selected candidates alongwith the appellant were issued appointment letters and he shall also be extended the benefit of notional seniority and proforma promotion as per his entitlement in law.
(ROHIT ARYA) (DEEPAK KUMAR AGARWAL)
SANJEEV KUMAR
JUDGE JUDGE
PHANSE
2023.08.22
16:46:17 +05'30'
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SP