Madras High Court
J.Alex Ponseelan vs The Director General Of Police on 7 November, 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE: 07/11/2013 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.(MD)No.8345 of 2011 and W.P.(MD)Nos.13148 and 13149 of 2012, 85, 3287, 5055, 5717, 6717, 6799, 6800, 7211, 7813, 7838, 9398, 9861, 11794 and 16635 of 2013 W.P.(MD)No.8345/2011 J.Alex Ponseelan ... Petitioner vs
1.The Director General of Police, Tamil Nadu, Chennai.
2.The Director, Tamil Nadu Uniformed Services Recruitment Board, Annasalai, Chennai.
3.The Superintendent of Police, Thoothukudi District, Thoothukudi. ... Respondents Writ petition under Article 226 of the Constitution of India, praying to issue a writ of certiorarified mandamus calling for the records pertaining to the impugned order passed by the 1st respondent in his proceedings in Na.Ka.No.540/117953/ appointment 1(2)/2011, dated 19.05.2011, setting aside th same an consequently directing the respondents to appoint the petitioner as Constable Grade-II in the recruitment of the year 2009-2010.
!For Petitioner in .. Mr.T.A.Ebenezer WP 8345/2011 For Petitioner in .. Mr.G.Thalaimutharasu WPs 13148 & 13149/2012 & 5055/2013 For Petitioner in .. Mr.A.John Vincent WP 83/2013 For Petitioner in .. Mr.K.Mahendran WP 9861/2013 For Petitioner in .. Mr.J.Sivaram WP 11794/2013 For Petitioner in .. Mr.M.Suresh Kumar WP 5717/2013 For Petitioner in .. Mr.B.K.Rajendran WP 6717/2013 For Petitioner in .. Mr.J.Jeyakumaran WPs 6799 and 6800/2013 For Petitioner in .. Mr.A.Haja Mohideen WP 7813/2013 For Petitioner in .. Mr.A.Jayaramachandran WP 9398/2013 For Petitioner in .. Mr.R.Aravind Raj WP 3287/2013 for Petitioner in .. Mr.D.Sasikumar WP 7838/2013 For Petitioner in .. Mr.J.Parekhkumar WP 7211/2013 Amicus Curiae .. Mr.M.Ajmal Khan, Senior Counsel.
^For Respondents in .. Mr.M.Govindan, all the WPs Spl.Govt.Pleader. :ORDER OF REFERENCE
The petitioners in all these writ petitions had applied for the post of Grade-II Police Constables, in the Selection Process held by the Tamil Nadu Uniformed Services Recruitment Board. The process consisted of a written examination and thereafter physical fitness test. These petitioners were all selected in the same. Thereafter, verification, regarding antecedents of the petitioners, was done through police, which is otherwise known as 'Police Verification'. It came to light from such police verification reports that these petitioners were all involved in criminal cases. Based on the said reports and by referring to Rule 14(b)(iv) of the Tamil Nadu Special Police Subordinate Service Rules, 1978, their candidatures were rejected. Those orders are under challenge in these writ petitions.
2.Considering the complicate questions of law involved in these writ petitions, this Court requested Mr.M.Ajmal Khan, the learned Senior Counsel, to assist the Court as amicus curiae. Accordingly, the learned Senior Counsel assisted the Court by bringing to the notice of this Court various judgments of the Hon'ble Supreme Court as well as this Court. I have heard the learned counsel for the petitioners and the learned Special Government Pleader Mr.M.Govindan.
3.The above said Police Service is governed by the Tamil Nadu Special Police Subordinate Service Rules, 1978 (hereinafter referred to as "the Rules"). Rule 14(b) of the Rules speaks of eligibility for appointment to the service, by direct recruitment. The said rule, as it originally stood, reads as follows:
"14(b)No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the Appointing Authority,--
(i)that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service; and
(ii)that his character and antecedents are such as to qualify him for such service; and
(iii)that such a person does not have more than one wife living;"
4.Subsequently, the Government issued G.O.(Ms) No.101, Home (Police IX) Department, dated 30.01.2003, thereby amending the "Tamil Nadu Special Police Subordinate Service Rules, 1978". This was done in exercise of the powers conferred under the Tamil Nadu District Police Act, 1859 and Section 9 of the Chennai City Police Act read with the proviso to Article 309 of the Constitution of India. By the said G.O., Rule 14(b) was amended and sub-rule
(iv), along with Explanations (1) and (2), was added to Rule 14(b). The newly introduced provision, by way of the said amendment, reads as follows:
"(iv)That he has not involved in any Criminal Case before police verification.
Explanation (1): A person who is acquitted or discharged on benefit of doubt or due to the fact that the complainant "turned hostile" shall be treated as person involved in a Criminal Case.
Explanation (2): A person involved in a criminal case at the time of Police Verification and the case yet to be disposed of and subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a Criminal Case and he can claim right for appointment only by participating in the next recruitment."
5.The constitutionality of the above amended provision [Rule 14(b)(iv)] of the Rules came to be challenged in a writ petition before this Court in V.Veeramani and another v. State of Tamil Nadu, rep.by its Secretary to Government, Home (Pol.IX) Department, Chennai and others - [2007 (3) MLJ 676]. A learned Single Judge of this Court dismissed the said writ petition and upheld the validity of the said provision.
6.Unaware of the said decision of this Court in Veeramani's case, subsequently, a number of writ petitions came to be filed before the Principal Bench of this Court, challenging the vires of Rule 14(b)(iv) of the Rules. The said question was placed before a Full Bench, by the then Chief Justice. The Full Bench, presided over by Chief Justice Mr.A.P.Shah (as His Lordship then was), heard the matter at length and ultimately upheld the validity of the said provision. As a matter of fact, before the Full Bench, the following questions came up for consideration.
"(i)Whether the acquittal or discharge of a person in a Criminal case on benefit of doubt would amount to a stigma on the life of a person so as to make him ineligible as per Rule 14(b), Explanation-1 of the Tamil Nadu Special Police Subordinate Service Rules?
(ii)Whether the non-disclosure of involvement in a Criminal Case which has ultimately ended in acquittal, but in some cases disclosed after acquittal, can be a ground for disqualifying the persons concerned from entering into the Government service?"
7.For the purposes of the present writ petitions, we are concerned only with the first question referred to above. The Full Bench answered the said question, in paragraph 30 of its judgment, as follows:
"30.Therefore, we hold, in answer to the first issue referred to the Full Bench, that by virtue of Explanation 1 to Clause (iv) of Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules, a person acquitted on benefit of doubt or discharged in a Criminal Case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified."
8.After the above said Full Bench judgment in Manikandan v. Chairman T.N.Uniformed Services Recruitment Board - 2008 (2) CTC 97, there were several judgments by learned Single Judges of this Court, wherein the learned Single Judges have held that persons who were acquitted on benefit of doubt or discharged in a criminal case are disqualified for selection to the police service.
9.When the above Full Bench judgment was cited before yet another learned Single Judge of this Court (Hon'ble Mr.Justice Vinod K.Sharma) in a batch of writ petitions in M.Vijaya Baskar vs. The Superintendent of Police, Dharmapuri and another - CDJ 2013 MHC 1921, His Lordship had an occasion to consider the above Full Bench Judgment and also various subsequent judgments of the Hon'ble Supreme Court, more particularly the judgments in Jainendra Singh vs. State of U.P. And others - 2012 (5) Supreme 215; Commissioner of Police and others vs. Sandeep Kumar - (2011) 4 MLJ 1006 (SC); Kendriya Vidyalaya Sangathan and others vs. Ram Ratan Yadav - (2003) 3 SCC 437; Ram Kumar vs. State of U.P. And others - 2011 (6) Supreme 23 and judgments of this Court in K.Sathyaseelan v. Tamil Nadu Uniformed Services Recruitment Board and another - W.P.No.2068 of 2013, decided on 26.02.2013; a Division Bench judgment of this Court in K.Satyanarayanan vs. The State of Tamil Nadu and another - W.A.No.1231 of 2009, decided on 17.09.2009 and Navaneethakrishnan vs. The Secretary to Government and another - W.P.No.2100 of 2008, decided on 12.02.2013.
10.After having considered all the above judgments, the learned Single Judge has held, in paragraphs 29, 30 and 31 of his judgment, as follows:
"29.On consideration, I find force in the contention raised by the learned counsel for the petitioners. It would be seen, that in all these cases, the petitioners were acquitted in criminal cases much before commencement of process of selection. Acquittal in criminal cases means, that the charges framed against the accused itself were bad, therefore, it cannot be said, that persons were involved in any criminal case. Therefore, Rule 14(b) can only be interpreted to mean, that in cases, which are pending at the time of selection, and end in acquittal by giving benefit of doubt, then a person can be denied the right of appointment by considering him to be involved in criminal cases, but not in a case, where much before the start of selection process, the person is acquitted, even by giving benefit of doubt.
30.As already noticed above, persons in whose case criminal cases was closed as "Mistake of Fact", also by no stretch of imagination, can be said to be involved in criminal case to deny them public appointment, as has been done by the respondents.
31.However, in the cases, where punishment of fine was awarded, the appointment cannot be denied in view of the law laid down by the Hon'ble Supreme Court in the case of Commissioner of Police and others vs. Sandeep Kumar (supra), holding, that it will be totally arbitrary and unfair to deny appointment to a young man, who has been found guilty of very minor offence, for which imposition of fine was considered to be adequate punishment."
11.From the above judgment, it could be seen that it is the firm view of the learned Single Judge that the decision of the Full Bench in Manikandan's case is in conflict with the law laid down, subsequently, by the Hon'ble Supreme Court in Commissioner of Police and others vs. Sandeep Kumar - (2011) 4 MLJ 1006 (SC). The learned Single Judge has further held that it will be totally arbitrary and unfair to deny appointment to a young man who has been found guilty of very minor offence for which imposition of fine was considered to be adequate punishment.
12.In yet another decision in M.Mahendiran vs. Superintendent of Police - (2013) 6 MLJ 109, a similar question arose before another learned Single Judge (Hon'ble Mr.Justice D.Hariparanthaman). In the said judgment, after having considered the Full Bench judgment in Manikandan's case and a common order passe in a batch of writ petitions in C.Vijayaraja v. The Director General of Police, Mylapore, Chennai-4 and 3 others - W.P.(MD)No.145 of 2010 batch, the learned Single Judge took a similar view like that of the view taken by the Hon'ble Mr.Justice Vinod K.Sharma. In paragraph Nos.13, 14 and 15 of the judgment, the learned Judge has held as follows:
"13.In this case, it is true that the Full Bench judgment of this Court considered Rule 14(b) of Tamil Nadu Special Police Subordinate Service Rules and held that if a person was acquitted by a criminal Court, even then he could not claim appointment in view of Explanation (1) to the aforesaid Rules. But, the Full Bench judgment of this Court was considered in the order dt. 26.03.2013 in W.P.(MD)No.1145 of 2010 (Batch cases) C.Vijayaraja v. The Director General of Police, Mylapore, Chennai 8 and 3 Others, and a direction was issued to the respondents/authorities to provide appointment if the candidates were honourably acquitted.
14.In view of the aforesaid judgment dt.26.3.2013 in W.P.(MD)No.1145 of 2010 Batch cases C.Vijayaraja v. The Director General of Police, Mylapore, Chennai 8 and 3 Others (supra), I am of the view that the petitioner is entitled to succeed in this case.
15.Accordingly, the impugned order dated 5.12.2012 refusing to provide appointment to the petitioner on the ground that the petitioner faced criminal case is liable to be quashed and a direction is issued to the respondents to give appointment to the petitioner within a period of six weeks from the date of receipt of copy of this order. Consequently, connected miscellaneous petition is closed. No costs."
13.In yet another batch of writ petitions in W.P.(MD)No.474/2013 batch, by order dated 26.03.2013, yet another learned Single Judge (Hon'ble Mr.Justice R.S.Ramanathan) had an occasion to consider the Full Bench judgment of this Court in Manikandan's case, in a similar situation. The learned Judge had considered the subsequent judgments of the Hon'ble supreme Court in Ram Kumar vs. State of U.P. & Others, reported in 2011(6) CTC 440; Daya Shankar Yadav vs. Union of India & Others - [2011 (2) LLN 34 (SC)] and Commissioner of Police, and others vs. Sandeep Kumar - 2011 (4) MLJ 1006 (SC).
14.Having considered the same, the learned Single Judge took the view that until the Larger Bench of the Supreme Court decides the issue in Jainendra Singh vs. State of U.P. Tr.Prinl.Sec., Home and others - (2012) 7 MLJ 65 (SC), the Full Bench judgment of this Court in Manikandan's case cannot hold the field. In paragraph Nos.33 and 34 of the judgment, the learned Single Judge has held as follows:
"33.Further, there is a saying 'every saint had a past, every thief has a future'. Further, the petitioners are involved in the offences under sections 323, 324, 506(i), 506(ii) & 325 IPC and such offences cannot be held to be serious and some of the petitioners were fined under the provisions of the Tamil Nadu City Police Act and the Tamil Nadu Gaming Act. The offences are only petty in nature and as held by the Hon'ble Supreme Court, in the judgement reported in Pawan Kumar's case, those offences cannot be brought under 'Moral Turpitude' and when those offences cannot be brought under the caption 'Moral Turpitude', it cannot be advisable to hold that the suppression of those particulars in the application form a serious one. In this connection, the observations of the Hon'ble Supreme Court made in Pawan Kumar's case [1996(II) LLJ 703, (SC)] is relevant and it is as follows:-
"Before concluding this judgement, we hereby draw attention of the Parliament to step in and perceive the large number of cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea- bargaining is the end of the career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provisions need be made that punishment of fine upto a certain limit, say upto Rs.2000/- or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service, this can brook no delay, whatsoever.
34.Further, the Government has given pardon to hardcore criminals, naxalites, when they surrendered and undertook to lead a normal life respecting the law of the land and having regard to their reformation, those persons were given appointment in the police force. When such persons were given appointments in the police force, in my opinion, the petitioners can also be given appointment in the police force, considering their age and their age at the time of involvement in the criminal cases and the fact that they were acquitted on the ground that no offence was made against them and they were also honourably acquitted. Considering the fact that the offences, in which there were involved could not be characterised as offences, involving Moral Turpitude and such persons must be given chance to reform themselves, in my opinion, the respondents can take final decision on the basis of the judgment by the Larger Bench of the Hon'ble Supreme Court. Further, it is always open to the Department to take action against them in the event of their involvement in the criminal cases in future."
15.From the above judgments of the learned Single Judges - Hon'ble Mr.Justice Vinod K.Sharma, Hon'ble Mr.Justice D.Hariparanthaman and Hon'ble Mr.Justice R.S.Ramanathan, the judgment of the Full Bench in Manikandan's case does not hold the field, in view of the subsequent pronouncements of the Hon'ble Supreme Court in the judgments cited supra.
16.Despite the above judgments of three learned Single Judges, delivered on three different occasions, it happens in this State that those persons who were acquitted by giving benefit of doubt or discharged in the criminal cases are denied employment in police service, citing the Full Bench judgment of this Court in Manikandan's case. Every time, when selection process is done by the Tamil Nadu Uniformed Services Recruitment Board, referring to Rule 14(b)(iv) of the Rules and the Full Bench Judgment of this Court in Manikandan's case, a number of successful candidates are rejected forcing them to approach this Court. Thus, the legal position is so volatile so far as this State is concerned. The Government itself appears to be confused as to whether to follow the verdict of the Full Bench in Manikandan's case or the judgments of the learned Single Judges delivered subsequently referring to the subsequent judgments of the Hon'ble Supreme Court.
17.In view of the importance of the questions of law involved and the impact which these judgments have caused on the society, I deem it appropriate to place these cases before My Lord the Hon'ble Chief Justice to decide as to whether to constitute a Larger Bench of Five Judges to examine the question as to whether the law laid down by the Full Bench in Manikandan's case still holds the field and remains to be a precedent.
18.On my part, I have got my own doubts about the views taken in Manikandan's case by the Full Bench. I wish to elaborate my doubts as follows:
(a)The Full Bench has held that if a person is acquitted giving benefit of doubt, then he is not eligible for entering into police service. At the same time, if a person is acquitted honourably in the criminal case, then he is eligible for appointment in police service. This is the distinction drawn by the Full Bench. The Explanation (1) to Rule 14(b)(iv) of the Rules also states that if a person is discharged on benefit of doubt or due to the fact that the complainant has turned hostile, even then he is not eligible for appointment in police service.
First of all, discharge cannot be on any benefit of doubt. The wordings "discharged on benefit of doubt" contained in Explanation-1 is contrary to the Code of Criminal Procedure. It is well settled that under the Code of Criminal Procedure, an accused can be discharged if only there are no ground/materials to frame charges. In other words, if there are no materials at all to proceed further, the accused shall be discharged. Thus, there can be no discharge by giving benefit of doubt at all. As per the Full Bench judgment in Manikandan's case, a person, who is discharged because there is no material at all against him, is disqualified to enter into the service; whereas, a person who is acquitted honourably is qualified for appointment. This means, a person, against whom there are materials to frame charges and after framing charges who faces trial gets acquittal, is eligible for appointment; whereas the person who has been discharged as there had been no material at all to frame charges is not qualified. In my considered opinion, this aspect had not been placed before the Full Bench, properly, to decide, when a person who is honourably acquitted is eligible for appointment, there could be no impediment for holding that a person who has been discharged also eligible for appointment.
(b)In the same Explanation-1 to Rule 14(b)(iv) of the Rules, it is explained that if a person is acquitted due to the fact that the complainant had "turned hostile", then the said person is not eligible for appointment. Whether a person turns hostile or not is not in the hands of the accused. It is the wisdom of the witness. When the witness gives evidence before the court on oath, he is presumed to tell only the truth, whereas, the statement made by him under Section 161 Cr.P.C., which is an unsigned statement, cannot have any authenticity or evidentiary value. Because the said witness has not given evidence in tune with the earlier statement said to have been given by him, he is cross-examined by the prosecution. Similarly, if his evidence goes against the prosecution, there also he is cross-examined by the prosecution. In the Evidence Act, there is no provision to declare a witness as hostile or to enable the witness to turn hostile. What all that contain in Section 154 of the Evidence Act is to cross-examine the witness by the Public Prosecutor, after getting permission from the Court. The accused cannot be, in any manner, held responsible for the witness not supporting the case of the prosecution and therefore the accused cannot be penalised on that score, by disqualifying him from entering into police service. Otherwise, it will be, as though, the accused has to go after the complainant requesting him not to turn hostile and to say some falsehood against him in the court so that he could get honourable acquittal for the purpose of entering into the police service. This aspect was not placed before the Full Bench.
(c)Explanation-1 further states that the discharge of accused on the ground that the complainant turned hostile, shall be treated as a person involved in a criminal case. In Criminal Law, there can be no discharge on the ground that the complainant had turned hostile, because, in a case instituted on police report, charges are framed only on the police report and not on any evidence. The term "complainant", as referred to in Explanation-I, may be taken as a complainant in a private complaint case. In cases instituted on police reports, there is no complainant at all. Therefore, question of complainant turning hostile in a case instituted on police report is not known to law. Thus, the words "discharged on benefit of doubt or due to the fact that the complainant "turned hostile" and acquitted due to the fact that the complainant turned hostile" are all quite contrary to the well known position of criminal law.
(d)Above all, assuming that the term "complainant" refers to the first informant, on whose information FIR is registered, even then the Explanation does not appear to carry any legal meaning. This can be illustrated in the following manner.
In a theft case, where there is no eye-witness, the owner of the properties gives a complaint. After some time, the accused is arrested and on whose confession, the stolen articles are recovered. The accused is now prosecuted. The informant (complainant) does not turn hostile. But, witnesses to the confession and recovery turn hostile. Thus, the case ends in acquittal. In this case, can it be said that the accused is not involved in criminal case because, he has been acquitted for the reason that the witnesses, who turned hostile, are not the complainants?
Similarly, the Code of Criminal Procedure permits compounding of certain minor offences. This is done in the larger interest of the society and to bring in cordial relationship between the litigating parties. Compounding is possible if only it is preceded by a compromise between the parties. Thus, if the acquittal is by means of compounding, can it be said that still the said person is disqualified to enter into the police force?
Looking at the Explanation-1 from any angle, I am of the view that the said provision does not conform to the basic legal principles and the same will not advance the cause to the society.
19.In this regard, I may refer to few more judgments.
20.A Division Bench of this Court in The Secretary, Vallalar Gurukulam Higher Secondary School vs. District Educational Officer, Cuddalore - 2005 (4) CTC 7, has held in paragraph No.6 of the judgment, as follows:
"6..... Once a person is acquitted in a criminal case, it has to be deemed that he never committed that offence. This is because every judgment operates retrospectively unless expressly made prospectively, unlike a legislation which normally operates prospectively unless expressly made retrospectively. Since the employee has been acquitted in the criminal case that judgment will operate retrospectively and it has to be deemed that the teacher concerned was never guilty of that offence. ...."
21.A Full Bench of the Hon'ble Supreme Court in Vidya Charan Shukla vs. Purshottam Lal Kaushik - AIR 1981 SC 547, in paragraphs 33 and 34 of its judgment has held as follows:
"33. .... On the application of that rule, the acquittal of the appellant herein by the appellate court, during the pendency of the election-petition must be held to have completely and effectively wiped out the disqualification of the appellant with retrospective effect from the date of the conviction, so that in the eye of law it existed neither at the date of scrutiny of nominations, nor at the date of the 'election' or at any other stage of the process of "being chosen."
34.In short, the acquittal of the appellant before the decision of the election-petition pending in the High Court had with retrospective effect, made his disqualification non-existent, even at the date of the scrutiny of nominations. This being the position, the High Court could not at the time of deciding the election-petition form an opinion as to the 'existence of a non- existent ground and sustain the challenge to the appellant's election under Section 100(1)(d)(i)."
22.In Shri Manni Lal vs. Shri Parmai Lal and othrs - 1970(2) SCC 462, the Hon'ble Supreme Court has held as follows:
"An appellate order of acquittal takes effect retrospectively and the conviction and sentence are deemed to be set aside with effect from the date they were recorded. It has to be held that the conviction has been wiped out and did not exist at all."
23.In Pawan Kumar vs. State of Harynana and another - AIR 1996 SC 3300, the Hon'ble Supreme Court had an occasion to consider an offence involving moral turpitude. The Hon'ble Supreme Court has held that offence under Section 294 IPC is not a disqualification at all to continue in Government service. In paragraph 12 of the judgment, the Hon'ble Supreme Court has held as follows:
"12. "Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while considering the question of rehabilitation of ex-convicts took a policy decision on February 2, 1973 (Annexure E in the Paper Book), accepting the recommendations of the Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not, however, be taken in Government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294, I.P.C. is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of Haryana on 17/26th March, 1975 explained the policy decision of February 2, 1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows:
".....The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not:
(1) whether the act leading to a conviction was such as could shock the moral conscience of society in general.
(2) whether the motive which led to the act was a base one.
(3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society.
Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the above mentioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude."
Section 294, I.P.C. still remains out of the list. Thus the conviction of the appellant under Section 294, I.P.C. on its own would not involve moral turpitude depriving him the opportunity to serve the State unless the facts and circumstances, which led to the conviction, met the requirement of the policy decision above-quoted."
24.In Commissioner of Police and others vs. Sandeep Kumar - (2011) 4 MLJ 1006 (SC), a Division Bench of the Hon'ble Supreme Court has held in paragraphs 10 to 13 of its judgment as follows:
"10. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives. In this connection, we may refer to the character 'Jean Valjean' in VICTOR HUGO'S novel 'LES MISERABLES', in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life.
The modern approach should be to reform a person instead of branding him as a criminal all his life.
11. We may also here refer to the case of Welsh students mentioned by LORD DENNING in his book 'DUE PROCESS OF LAW'. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. Then came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, LORD DENNING observed:
"I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show - and to show to all students everywhere - that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land - and I speak both for England and Wales - they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.
But now what is to be done? The law has been vindicated by the sentences which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards - of the poets and the singers - more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong - very wrong - in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed."
[Vide : Morris Vs. Crown Office, (1970) 2 Q.B. 114 ]
12.In our opinion, we should display the same wisdom as displayed by Lord Denning.
As already observed above, youth often commit indiscretions, which are often condoned.
It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified.
13. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter. For the reasons above given, this Appeal has no force and it is dismissed. No costs."
25.In Ram Kumar vs. State of U.P. & Others - 2011(6) CTC 440, referring to the Sandeep Kumar's case cited supra, the Hon'ble Supreme Court has held in paragraph 9 of the judgment as follows:
"9. .... As has been stated in the instructions in the Government Order dated 28.4.1958, 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 t the nature of suppression and nature of the Criminal case. Instead 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."
26.A Division Bench of the Delhi High Court has also taken a similar view in Govt. of NCT of Delhi and another vs. Robin Singh - CDJ 2010 DHC 1202. Paragraph 53 of the judgment reads as follows:
"53.The respondent was born on 21.05.1987. The age of the respondent when he was made an accused in the Non-Cognizable Report would be 19 years. The trivial offence of what he was charged of, in which he has been acquitted, cannot make him a criminal of a kind where public interest requires his non- induction in the Police force and that too as a Sub-Inspector (Executive) and that means his duties would be clerical and not with arms and surely not on the streets requiring him to deal with public. Assuming that the petitioner did the acts of which he was accused of the same is a trivial brawl which he had in the village. Some fist blows with choicest abuses in tandem were hurled at the victim."
27.From these judgments of the Hon'ble Supreme Court and the Delhi High Court as well as this Court, it is crystal clear that even a conviction in a criminal case cannot be a total bar for such a convicted person to enter into police service, unless the offence for which the individual has been convicted involves moral turpitude. Otherwise, even for a trivial offence, like traffic offence under the Motor Vehicles Act for crossing yellow line, one can be deprived of his employment in police service. When the Supreme Court has held that even a convicted person is entitled for entering into police service, provided the offence does not involve moral turpitude, I do not find any justification to hold that a person who has been acquitted by giving benefit of doubt is not entitled for entering into police service. This doubt is based on the judgment of Hon'ble Supreme Court cited supra.
28.There is yet another aspect which needs mentioning. So far as juveniles in conflict with law are concerned, under Section 19 of the "Juvenile Justice (Care and Protection of Children) Act, 2000", the disqualification attached to the conviction stands removed. When a person, who was dealt with for his involvement in certain offences while he was a juvenile, was denied employment in police service by citing Rule 14(b)(iv) of the Rules, I had an occasion to examine such a question in G.Pandiarajan vs. The State of Tamil Nadu - W.P.(MD)No.315 of 2008, decided on 28.01.2008. In that case, I have held that under the Juvenile Justice (Care and Protection of Children) Act, 2000, there is no trial of the juvenile in conflict with law; there is neither conviction of juvenile in conflict with law. It is only the satisfaction that he is involved in the crime that is, recorded. Thereafter, the records are to be destroyed, thereby removing even the trace of his involvement in the criminal case. The object of the Act is to reform such a juvenile in conflict with law and to bring him into the mainstream. When he gets reformed himself and wants to enter into police service, his involvement in the criminal case cannot be quoted. This judgment in G.Pandiarajan case was cited before yet another learned Single Judge (Hon'ble Mr.Justice K.CHANDRU) in W.P.(MD)No.3130 of 2009, decided on 20.09.2010, wherein the learned Single Judge followed the view taken in G.Pandiarajan case. A Division Bench of this Court, presided over by Hon'ble Mr.Justice K.N.BASHA in T.Sathishkumar vs. The Director General of Police, Chennai-4 - W.A(MD)No.718 of 2010, decided on 30.01.2013, has approved the view taken in G.Pandiarajan's case. Thus, if a juvenile in conflict with law was involved in a criminal case, there can be no disqualification in terms of Rule 14(b)(iv) of the Rules to enter into police service. But, the Full Bench Judgment in Manikandan's case does not deal with this issue also.
29.Similarly, in one of the cases in the present batch of writ petitions, namely W.P.(MD)No.85/2013, I notice that in the FIR the name of the petitioner was arrayed as an accused. But, during investigation, it was found that he was not involved in the crime and therefore in the Final Report he was omitted. But, still, he has been held disqualified to enter into the Police service. I do not understand the logic behind this view taken by the Authorities. Simply because he was falsely implicated as an accused in the FIR, which came to light subsequently, he cannot be disqualified for ever for, under Section 154 of the Code of Criminal Procedure, an FIR is registered only on information and not even on any reliable information. Therefore, mere inclusion of the name of the person in the FIR cannot be a ground to deny him employment.
30.As could be seen from the judgment of the Full Bench of this Court in Manikandan's Case, the challenge made before the Full Bench was only on the touchstone of Article 14 of the Constitution of India and thus the Full Bench had no occasion to consider whether Rule 14(b)(iv) of the Rules offends Article 21 of the Constitution.
31.In view of the above position, it is time for me to decide what is the next course available for me to do, in view of the conflicting judgments. I am conscious of the fact that as a Single Judge, I cannot disagree or dissent from the view of law taken by a Full Bench or a Division Bench. But, at the same time, when I have doubt about the correctness of a decision taken by the Full Bench or the Division Bench and when there are several conflicting judgments of smaller quorums and also the judgments of the Supreme Court, it is absolutely necessary for me to invite the attention of the Hon'ble The Chief Justice, with a request to consider as to whether to place this matter before a larger Bench. In this regard, I may refer to a decision of the Constitution Bench of the Hon'ble Supreme Court in Central Board of Dawoodi Bohra Community vs. State of Maharashtra, reported in (2005) 2 SCC 673, wherein the Hon'ble Supreme Court, in paragraph 12, has summed up the legal position in the following lines:-
"(1)The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.
(ii)A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
(ii)The above rules are subject to two exceptions: (i)the above said rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii)in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness, of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Union of India v. Raghubir Singh (1989) 2 SCC 754 and Union of India v. Hansoli Devi (2002) 7 SCC 273."
In view of the reasons which I have enumerated thus for, I deem it necessary to place the papers before My Lord The Hon'ble Chief Justice for consideration because the present writ petitions involve important questions of law, having public importance.
32.In view of the above position of law and in view of the Full Bench judgment of this Court in Manikandan's case which is directly in conflict with the judgments of the Hon'ble Supreme Court, which I have quoted above and the judgments of this Court, as well as in view of the doubts which I have in interpreting Rule 14(b)(iv) of the Rules, I deem it appropriate to direct the Registry to place all these cases before My Lord The Hon'ble Chief Justice to decide whether to constitute a larger Bench of quorum of Five or more Judges to decide the following questions:
(i)Whether the law laid down by the Full Bench of this Court in Manikandan vs. Chairman, T.N.Uniformed Services Recruitment Board - 2008 (2) CTC 97 holds the field or it needs to be over-ruled?
(ii)Whether Rule 14(b)(iv) together with Explanations 1 and 2 attached thereto of the Tamil Nadu Special Police Subordinate Service Rules, 1978 is constitutionally valid?
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