Madhya Pradesh High Court
Deepika Rajput vs Home Department on 9 January, 2017
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WP No.2595/2016
09-01-2017
Mr Jitendra Verma, learned counsel for the petitioner.
Mr Prasana Bhatnagar, learned counsel for the respondents
State.
The petitioner before this court has filed this present petition
being aggrieved by the order dated 16-03-2016, by which the
petitioner's appointment to the post of Constable has been
cancelled.
The petitioner's contention is that an advertisement was issued
for the post of Constable and the petitioner has successfully
qualified the written examination. She has later-on successfully
cleared Physical Proficiency test as well as medical test. An
appointment order was issued to the petitioner informing that
she has been found fit for appointment and it was mentioned
that the posting order will be issued in her favour, later-on.
The petitioner's grievance is that an order has been issued on
16-03-2016 holding that the petitioner has been found un-fit for
grant of appointment. The petitioner has preferred the present
writ petition being aggrieved by the aforesaid order.
Reply has been filed in the matter and the contention of the
respondent is that the sister-in-law of the petitioner has lodged
a complaint against the petitioner on 02-01-2013 at Police
Station Industrial Area, Dewas for an offence u/s 498-A of IPC.
It has also been stated that a judgment was delivered in the
criminal case and she has been acquitted in the criminal case by
the trial court on 04-08-2015. The contention of the
respondent is that as the petitioner was involved in a case for
an offence u/s 498-A of IPC her case was placed before the
Scrutiny Committee and the Scrutiny Committee found her
un-fit for grant of appointment, keeping in view Regulations 53
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and 57 of M.P. Police Regulations.
This court has carefully gone through the M.P. Police
Regulations 53 and 57 and the same reveals that in case the
person is involved in respect of offence relating to moral
turpitude, the authorities can certainly look into and can debar
the candidature from joining the police force. Reference has
also been placed upon the Office Memorandum issued by the
General Administration Department dated 05-06-2003 and the
offences u/s 366 and 376-A of IPC have been included in the
list of offences involving moral turpitude. It has also been
stated offence u/s 498-A is also included in the list.
This court has carefully gone through the writ petition and
return. The fact reveals that the sister-in-law (Bhabhi) of the
present petitioner has included the name of the petitioner in the
First Information Report (F.I.R.) lodged on 02-01-2013. The
FIR was lodged against most of the family members. This court
has carefully gone through the judgment of acquittal dated
04-08-2015. The accused persons included father-in-law,
mother-in-law and husband of the complainant. The
paragraph-9 of the judgment reveals that the brother of the
applicant demanded dowry and the entire family was roped in.
This court is of the considered opinion that once the petitioner
has been Honorably acquitted u/s 498-A of the IPC, the criminal
case cannot be made the basis for denying appointment to the
petitioner. Recently a Division Bench of this court in Writ
Appeal No. 367/2015 & 539/2015 has considered a similar
matter and the judgment delivered by the Division Bench in
paragraphs-6 to 18 after taking into account most of the
judgments delivered on the subject reads as under :-
"6. Brief facts of the case are that
appellant Sandeep Pandey was duly
selected for the post of Constable (General
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Duty) in the recruitment year 2013 (Second).
After selection, he was posted at Dewas
District. As per record, his Roll Number was
100467 and he was duly selected under UR
Category. As per his application form, which
is at page 77, he gave details of criminal
cases registered against him vide Crime
No.250/1998 at Police Station Aerodrome,
Indore under Sections 341, 294, 323, 426
and 34 of the Indian Penal Code, 1860.
Learned trial Court framed charges under
Sections 427, 506 and 327 of the Indian
Penal Code, 1860 against him. On
25.06.2002, he was acquitted. Vide Crime
No.29/2007 a case under Sections 323, 324,
294, 506 and 34 of the Indian Penal Code,
1860 was registered against him, but on the
basis of the compromise arrived at between
the parties, he was acquitted on 07.03.2007.
These facts were duly brought to the
knowledge of the authorities by giving
affidavit on 12.05.2014, which is at page 73;
paragraph 2 of the affidavit reads, as under:
-
";g fd] eSa ,d 'kkafrfiz; ukxfjd gwW rFkk esjs fo:} iwoZ esa iqfyl Fkkuk ,jksMªe] bankSj e-iz- esa ,d vijkf/kd izdj.k iathc} gqvk Fkk tks Hkkjrh; n.M fo/kku dh /kkjk 323] 325] 427 34] 294] 506 ds rgr iathc} gqvk Fkk] ftlesa U;k;ky; }kjk eq>s fnukad 25-06-2002 dks nks"keqDr fd;k tk pqdk gS rFkk ftldk QkStnkjh izdj.k dzekad 1393@98 gSA vc bl izdj.k ds vykok esjs f[kykQ vU; dksbZ izdj.k u rks fdlh Fkkusa esa vkSj uk gh U;k;ky; esa iathc} ugh gS vkSj uk gh fdlh U;k;ky; esa fopkjk/khu gSA ekuuh; U;k;ky; ds vkns'k dh izekf.kr izfrfyih layXu izLrqr gSA"
7. Learned Authority, after appreciating the aforesaid facts, duly selected him under UR Category and appointed him in the Police Department on the post of Constable (GD) in the recruitment year 2013 (Second).
8. During employment, his character -4- was verified from District Indore. On the basis of the verification, they came to know that the above mentioned two cases were registered against him in which he was acquitted by the learned trial Court. It is also mentioned that as per letter of the Inspector General of Police, Sections 325 and 427 of the Indian Penal Code, 1860 in respect of moral turpitude, which does not come within the purview of simple crime, as he is working in the Police Department and after due verification of his character by the Nkuchu lferh (Inquiry Committee) he was found unfit, and therefore, Additional Inspector General of Police (Selection / Recruitment) directed to delete the name of the appellant Sandeep Pandey.
9. Learned counsel for the appellant has submitted that no opportunity of hearing was granted to the appellant Sandeep Pandey before passing order dated 22.08.2014. He submitted that the order is in violation of the principles of natural justice. He further submits that none of the facts was suppressed by the appellant in his application form as well as in affidavit. It is also pointed out that earlier he was in the service of Home Guards and worked for a number of years and he was never found unfit. He has also drawn our attention to Section 232 of the Code of Criminal Procedure, 1973 and submitted that if after taking the evidence of prosecution, examining the accused and hearing the prosecution and defense on the point, the Judge considers that there is no evidence, that the accused committed the offence, the learned Court shall record the order of acquittal. He further submits that there is no provision which bars the appointment of a -5- person, if he has been acquitted on technical ground. He further submits that learned Single Judge has misinterpreted the judgment of this Court delivered in the case of Dinesh Singh Parihar (supra) and the decision of the Apex Court in the case of Commissioner of Police, New Delhi v. Mehar Singh reported in (2013) 7 SCC 685 and prays for setting aside of the impugned order.
10. In reply, Shri Deepak Rawal, learned Deputy Advocate General for the State of Madhya Pradesh has drawn our attention to Clause (7) of letter No.17- 74/2002/ lh -1 Bhopal dated 5th June, 2003 issued by the Government of Madhya Pradesh at page 86 and submitted that if there is an acquittal on facts, then only person concerned is entitled for appointment in Police Department; Clause (7) of letter dated 5th June, 2003, reads as under: -
"jkT; 'kklu }kjk ;h Hkh fu.kZ; fy;k x;k fd pfj= lR;kiu laca/kh vuqizek.ku QkeZ ds fcUnq 12 ¼x½ ds var esa vafdr fVIi.kh %& ^^vH;FkhZ bl vuqizek.ku QkeZ ds vUnj nh xbZ psrkouh uksV djsa^^ ds i'pkr fuEufyf[kr okD; vkSj tksM+k tk;s %& ^^viw.kZ QkeZ Lohdkj ugh fd;k tk;sxk] U;k;ky; ls rF;ksa ds vk/kkj ij nks"keqDr izR;k'kh lsok ds ;ksX; gksxk^^"
11. He has further submitted that the appellant was found guilty for committing offence of moral turpitude and hence, he is not eligible for the post of Constable (GD) and he was rightly precluded from joining the duty. He has also drawn our attention to the decision of the case of Baldev Singh v. Union of India & others reported in (2005) 8 SCC 747 and submitted that on a mere acquittal of employee concerned in a criminal case would not automatically entitle -6- him to the said claim, where he had not worked for the relevant period and prayed for dismissal of the writ appeal filed by the appellant Sandeep Pandey.
12. As per order passed by the Writ Court in Writ Petition No.896/2014 (s) in the matter of Dinesh Singh Parihar v. The State of Madhya Pradesh & others on 18.06.2014 , the petitioner therein was acquitted of the charge under Section 324/34 of the Indian Penal Code, 1860 read with Section 3 (1) (x) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989. After selection on the post of Constable (General Duty) in the year 2013, he was declared unfit for the appointment on the ground that a criminal case was registered against him, in which he has been acquitted by giving benefit of doubt. The contention of the learned counsel for the petitioner was that he is entitled for appointment, as he has been acquitted by the learned trial Court irrespective of the fact whether it is on technical ground, or whether it is on account of giving him the benefit of doubt. After considering the fact that the petitioner therein has at any point of time suppressed the factum of a criminal case, which was registered against him and he has been honorably acquitted. Similar controversy came up before the Writ Court in the case of Dinesh Singh Parihar(supra). The Writ Court relied upon the order passed in the case of Rakesh Sharma v. State of Madhya Pradesh & 5 others [Writ Petition No.9913/2012] and also relied on the decision of the Apex Court in the case of Commissioner of Police, New Delhi v. Mehar Singh in Civil Appeal No.4842/2013 decided on 02.07.2013 , which was relating -7- to appointment under the Delhi Police Establishment and there was standing order i.e. Standing Order 398, which was applicable in the aforesaid case. He came to the conclusion that in the matter of Dinesh Singh Parihar(supra), no such standing order is in existence; on the contrary, the Madhya Pradesh Manual & Regulations under Regulation 54, even provides for appointment of a person, who has been convicted, with the approval of the Inspector General of Police on the post of Constable, and therefore, in the light of the aforesaid Regulations, allowed Writ Petition No.896/2014 (s) on 18.06.2014; relevant part of the order reads, as under: -
"In the present case, the petitioner has never at any point of time suppressed the factum of criminal case, which was registered at Crime No.44/2012 and he has been honourably acquitted. A similar controversy came up before this Court and this Court in the case of Rakesh Sharma Vs. State of Madhya Pradesh & 5 Ors. (WP No.9913/2012 ) and in the aforesaid case this Court has held as under :-
"The petitioner before this Court has filed this present writ petition for issuance of an appropriate writ, order or direction directing the respondents to appoint the petitioner on the post of Constable General Duty. Petitioner is also aggrieved by order dt. 13/7/12 by which the Inspector General of Police has rejected the claim of the petitioner. In the present case, the petitioner has participated in the process of selection for the post of Constable in the year 2012 and has also submitted a police verification form stating categorically therein that he has been acquitted in S.T. No. 196/2007 on 14/2/2008. The petitioner by virtue of his merit was selected for the post of Constable, however, the appointing Authority as well as the Inspector General of Police have rejected the petitioner's claim for appointment even though he is more -8- meritorious and persons who are less meritorious have been appointed to the post of Constable General Duty. The only reason assigned in the return is that the petitioner as he has been acquitted by giving benefit of doubt in respect of Crime No. 126/2006, cannot be appointed to the post of Constable General Duty.
Learned counsel for the respondents - State has drawn attention of this Court towards paragraphs 53 of the M.P. Police Regulations and his contention is that a person who is seeking appointment on the post of a Constable should bear a good moral character and therefore, as the petitioner was prosecuted for an offence u/S. 302, 147, 148 and 149 of the Indian Penal Code, he does not bear good moral character, hence the order passed by the Inspector General of Police does not warrant any interference.
This Court is of the considered opinion that once the petitioner has been acquitted, the entire crime registered against him stands wiped out. An acquittal is an acquittal whether it is a "clean acquittal", whether it is "honourable acquittal" or "acquittal based on giving benefit of doubt". The "clean acquittal", the "honourable acquittal" or "acquittal based on giving benefit of doubt" has not been distinguished in the Code of Criminal Procedure. This court in the case of Smt Panna Mehta Vs. State of M.P. reported in 2002(4) M.P.H.T. 226 in paragraph 11 and 12 held as under :-
"11. In the Code of Criminal Procedure, Indian Penal Code, Evidence Act or any other enactment, the word, "acquittal" has not been defined. As per the Law Lexicon, the Encyclopaedic Law Dictionary (Edn. 1992) "Acquittal" defined, Act X of 1882, Section 403, "the word acquittal is verbum equivocum, and may in ordinary language be used to express either the verdict of a jury, or the formal judgment of the Court, that the prisoner is not guilty". (Per Tindal, C.J., Burgess Vs. Boetefeur, 13 LJMC 126 : 135 ER 193). It is generally said that a party is acquitted by the jury, but in fact, the acquittal is by the judgment of the court (ibid). According to the Oxford Dictionary, "acquittal" means that a person is not guilty of a crime, with which he has been charged. So in a criminal jurisprudence there is -9- no difference between "clean acquittal", "honourable acquittal" or "acquittal based on giving benefit of doubt". When the accused is acquitted by giving benefit of doubt means the prosecution was not able to prove its case beyond doubt.
12. As ruled by the SUPREME court in case of Manni Lal Vs. Parmai Lal (AIR 1971 SC 330) and Dilip Kumar Sharma and others Vs. State of Madhya Pradesh (AIR 1976 SC 133), order of acquittal means a person concerned, has not committed the offence for which he was charged and tried. Criminal Courts are recording acquittal when the prosecution fails to prove its case beyond all reasonable doubt and benefit of doubt given to the accused does not mean that the accused was involved in the case but the same could not be proved by the prosecution. In Criminal Law, words "beyond reasonable doubt" cannot be termed as stigma or proof of any criminal charge against acquitted accused. Therefore, petition for expunging the same is not maintainable under Section 482, Cr.P.C. and the same is misconceived."
Keeping in view the aforesaid judgment, as the prosecution was not able to prove its case beyond reasonable doubt, it cannot be termed as stigma or proof of any criminal charge against the acquitted person.
Resultantly, there is no other material available against the petitioner and as there was no suppression on the part of the petitioner, the criminal case which is no longer in existence and in which the petitioner has been acquitted will not come in way of the petitioner in the matter of appointment.
Resultantly, in the light of the judgment delivered in the case of Smt. Panna Mehta (supra) as the petitioner has been acquitted, he is certainly entitled for appointment for the post of Constable General Duty. The Writ Petition is allowed with the following directions :
(1) Respondent Superintendent of Police, Dewas is directed to issue an appointment order in respect of the petitioner forthwith on the post of Constable General Duty by virtue of his placement in the merit list and the criminal case in which the petitioner has been acquitted will not come in way of the petitioner.
(2) The petitioner shall be entitled for the seniority from the date other persons have been appointed on the basis of same examination and shall be entitled for all consequential benefits except back wages.
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(3) The exercise of appointing the petitioner and granting all consequential benefits be concluded within a period of 30 days from the date of receipt of certified copy of this order."
It is pertinent to note that the judgment of Hon'ble Supreme Court delivered in the case of Commissioner of Police, New Delhi Vs. Mehar Singh in Civil Appeal No.4842/2013 decided on 2.7.2013 relied upon by the learned counsel for the respondents was relating to appointment under the Delhi Police Establishment and there was a Standing Order i.e. Standing Order 398, which was applicable in the aforesaid case, whereas in the present case there is no such Standing Order in existence, on the contrary the Madhya Pradesh Manual and Regulations under the regulation-54, even provides for appointment of a person, who has been convicted with the approval of Inspector General of Police on the post of Constable and therefore, in light of the aforesaid Regulations and also in light of the fact that there is no such Standing Order in existence in the present case, which has been considered by the Apex Court in the aforesaid case, the writ petition deserves to be allowed and is accordingly allowed.
Resultantly, the impugned order dated 11.11.13 is hereby quashed. The respondents are directed to take appropriate steps for issuance of appropriate orders for appointment of the petitioner within a period of 30 days from the date of receipt of a certified copy of this order keeping in view his placement in the merit list. The petitioner shall not be entitled for back wages, however he shall be entitled for seniority and all other consequential benefits."
13. In the case of Ram Kumar v.
State of Utter Pradesh & others reported in JT 2011 (9) SC 200, the petitioner therein, in his affidavit dated 12.06.2006, denied
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registration of any criminal case against him, his selection was cancelled on the ground of concealing the facts and filing of wrong affidavit, his termination was upheld by Single Judge and Division Bench of Allahabad High Court. The Apex Court considering the fact that as the matter was of the year 2002 and he was acquitted of all the charges on 18.07.2002, allowed the civil appeal and directed the Superintendent of Police Gazaibad that the appellant be taken back in service within a period of two months from the date of order passed by the Court, but he will not be entitled to any back wages for the period, he has remained out of service; paragraphs No.7.1, 9 and 11 of the judgment is relevant, which reads, as under:
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"7.1 It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point.
9. The order dated 18.07.2002 of the Additional Chief Judicial Magistrate had been sent along with the report dated 15.01.2007 of the Jaswant Nagar Police Station to the Senior Superintendent of Police, Ghaziabad, but it appears from the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the selection of the appellant
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was illegal and irregular because he did not furnish in his affidavit in the proforma of verification roll that a criminal case has been registered against him. As has been stated in the instructions in the Government Order dated 28.04.1958, it was the duty of the Senior Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment.
11. For the aforesaid reasons, we allow the appeal, set aside the order of the learned Single Judge and the impugned order of the Division Bench and allow the writ petition of the appellant and quash the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad. The appellant will be taken back in service within a period of two months from today but he will not be entitled to any back wages for the period he has remained out of service. There shall be no order as to costs."
14. In the case of Commissioner of Police and others v. Sandeep Kumar reported in (2011) 4 SCC 664, respondent's candidature for the post of Head Constable was cancelled on the ground that he has concealed his involvement in a criminal case under Sections 325/34 of the Indian Penal Code, 1860, when he was aged about 20 years. The Apex Court held that young people often commit indiscretions and approach should be to condone such
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indiscretions rather than branding them as criminals for rest of their lives; besides, it was not a serious offence and hence, more lenient view should be taken and dismissed the appeal filed by the Commissioner of Police and others. In the case of Sandeep Kumar (supra), a show cause notice was issued as to why his candidature for the post should not be cancelled, because he had concealed the fact of his involvement in the criminal case and had made wrong statement in his application form. Paragraphs No.8, 9 and 10 of the judgment in the case of Commissioner of Police and others v. Sandeep Kumar (supra) is relevant, which reads, as under: -
15. The present case is not a case of suppression of any facts in the application form regarding character verification; on the contrary, as per Column No.7 ( [k ) (,d) regarding crime and charge, which we have reproduced in the preceding paragraph, the appellant has given all the details about two criminal cases, which were registered against him somewhere in the years 1998 and 2007. He has also given all the details in paragraph No.2 of his affidavit and thus, it cannot be said that he has suppressed any fact to his employer. It is not in dispute that no show cause notice regarding cancellation of his appointment has been issued by the respondents, at any point of time, prior to the passing of the order dated 22.08.2014. The case of Dinesh Singh Parihar (supra) of the learned Writ Court, which has also been reproduced by us, the facts are almost similar.
16. During the course of arguments, learned counsel for the appellant, on the
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basis of instructions received from his client, very categorically stated that in case writ appeal of Sandeep Pandey is allowed, he will not claim any back wages from the appellants.
17. On due consideration of the aforesaid and considering the fact that the order impugned in the writ petition was passed in violation to the principle of natural justice, we are of the view that it is a fit case to allow the writ appeal and, therefore, we set aside the impugned order judgment and direct the respondents in W.A. No.367/2015 to consider the case of the appellant - Sandeep Pandey in terms of the direction issued by the learned writ court, but he shall be granted no monetary benefits i.e. back wages because during the course of arguments, learned counsel for the appellant
- Sandeep Pandey on the basis of instructions received from appellant Sandeep Pandey made a statement at bar that he will not claim any back wages.
18. In the result, the writ appeal bearing W.A. No.367/2015 is allowed and W.A. No.539/2015 filed by the State is hereby dismissed. No costs."
In light of the aforesaid judgment delivered by the Division Bench and in light of the fact that the applicant was acquitted in a case u/s 498-A of the IPC and also keeping in view the fact that there was no suppression on the part of the applicant, at any point of time, the writ petition stands allowed. The respondents are directed to issue appointment order in favour of the petitioner, within a period of thirty days and the petitioner shall be entitled for all consequential benefits like arrears of salary etc. etc. as well as seniority from the same
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date other batch members have been appointed.
No order as to costs.
Certified copy as per rules.
(S. C. SHARMA) JUDGE Rashmi