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Rajasthan High Court · body

1998 DIGILAW 779 (RAJ)

Om Prakash Soni v. State of Rajasthan

1998-07-21

B.S.CHAUHAN

body1998
Honble CHAUHAN, J.–The instant writ petition has been filed for quashing the impugned order dated 26.5.98, contained in Annexure P.3, by which the respondent-authority refused to give appointment to the petitioner as he had been involved in criminal cases. (2). Heard Mr. P.P. Choudhary, learned counsel for the petitioner and Mrs. R.R. Kanwar, learned Additional Government Advocate. (3). Mr. P.P. Choudhary, learned counsel for the petitioner has submitted that petitioner had been involved in three criminal cases and all the said cases have been decided. He had been fair enough to produce the judgments delivered in all the three criminal cases before this Court at the time of hearing. (4). The first criminal case had been decided by the judgment and order dated 25.11.95, by which the petitioner had been found guilty of commiting the offence under Section 379. I.P.C. However, considering the factum that petitioner was a student and there had been compromise of the petitioner alongwith the complainant, it was considered desireable that benefit of the provisions of Probation of Off- nders Act, 1958 (hereinafter referred as ``the Act) be given to him. Thus, the learned trial Court passed the order to maintain good behaviour for a period of one year and warned him not to repeat the offence and in case the Court summons him for serving out the sentence, he shall remain present. On these conditions, the petitioner was asked to furnish a Personal Bond of Rs. 2000/- and to provide with a surety for the same amount. However, he was, also, directed to deposit a sum of Rs. 50/- as the procedural cost of the Court. (5). The second criminal case was decided on 25.9.96, wherein the prosecution failed to prove the case under Section 379 I.P.C. against the petitioner and he was acquitted of the charges. (6). The third case was decided on 16.12.96, by which the petitioner was found guilty of the offence punishable under Section 379 I.P.C. and after considering the factum of his age, as he was 18 years of age at the time of commission of offence, the benefit of the provisions of the Act was given to him and he was directed to furnish personal bond of Rs. 2000/- and to provide a surety for the same amount and to maintain good behaviour for a period of two years and he was warned not to repeat the offence and in case the Court summons him to serve out the sentence, he shall remain present. (7). Thus, from the aforesaid, it is an admitted position that the petitioner had been convicted twice for the offence under Section 379 I.P.C. but had been given the benefit of the provisions of the Act, 1958. (8). The petitioner had applied in pursuance of the advertisement issued by the respondents. He was selected. However, appointment has been refused to him only on the ground of conviction in the aforesaid cases. Mr. P.P. Choudhary has submitted that the petitioner cannot be found unsuited/ineligible for employment on account of the aforesaid convictions. (9). In support of his submissions, he placed reliance upon the judgment of this Court in Shiv Ram vs. State of Rajasthan and others (1). wherein the provisions of rule 13 of the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred as ``the Rules, 1989) have been interpreted. Rule 13 of the Rules, 1989 reads as under:- ``13. Character- The character of a candidate for direct recruitment must be such as to qualify him for employment in the Service. He must produce a certificate of good character from the Principal Academic Officer of the University or College or School in which he was last educated and two such certificates, written not more than six months prior to the date of application from two responsible persons not connected with his School or College or University and not related to him. Notes-(1) A conviction by a Court of Law need not of itself involve the refusal of a certificate of good character. The circumstances of the conviction should be taken into account and if they involve no moral turpitude or association with crimes of violence or with a movement which has its object to overthrow by violent means a Government as established by law, the mere conviction need not be regarded as a disqualification. (10). In the aforesaid judgment, rule 13 of the Rules, 1989 has been interpreted holding that a convict of an offence, if it does not involve moral turpitude or association with crime of violence, would not become ineligible for service/employment. (10). In the aforesaid judgment, rule 13 of the Rules, 1989 has been interpreted holding that a convict of an offence, if it does not involve moral turpitude or association with crime of violence, would not become ineligible for service/employment. In that case the petitioner had been convicted for the offence under Section 323 I.P.C. (11). The ratio laid down in the aforesaid case is not applicable in the instant case as the petitioner has been convicted twice for committing theft which definitely and certainly involve moral turpitude. It has been contended at the Bar that the offences relating to moral have been put in Chapter XIV of the Indian Penal Code and as Section 379 I.P.C. does not fall within this Chapter, it will not involve moral turpitude. The contention has no force as moral turpitude means the morally culpable quality held to be present in some criminal offences as distinguished from others. (12). In Pawan Kumar vs. State of Haryana (2), wherein the Apex Court has observed as under:- ``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. (13). The aforesaid judgment in Pawan Kumars case (supra) has been considered by the Honble Supreme Court again in Allahabad Bank and another vs. Deepak Kumar Bhola (3) and placed reliance on Baleshwar Singh vs. District Magistrate and collector (4) wherein it has been held as under:- ``The expression `moral turpitude is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposi- tion of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man.. (14). In the aforesaid case, the Honble Supreme Court held that the offences punishable under Sections 419,420 and 467 I.P.C. definitely involve moral turpitude. Thus, undoubtedly, it cannot be said that the motive for committing the theft was not a base one or it can also not be argued that the perpetrator of the offence of theft would not be considered to be of a depraved character or a person who was to be looked-down upon by the society. (15). There is a Circular No. 56(1) PF/Const./95/1687 dated 29.4.95 issued by the respondents, wherein rule 13 of the said Rules has been explained in view of the special fact that the work of the police is vital to the society as it is connected with the protection of life and property of the citizens. ``Action of the police often impingned on the liberty of the people. It is hence necessary that the persons with up-right and sterling character are recruitted to the Force. Therein the ``moral turpitude has been explained as under:- ``Any act which indicates malafide mental conduct such as theft or criminal misconduct towards the woman or forgery or wilful suppression of information (particularly adverse information) about the candidate etc. would be covered under ``moral turpitude. Cases involving atrocities on Scheduled Caste/Scheduled Tribes and women (dowry cases) would,also, fall under this category. (16). Thus, the argument made by Mr. P.P. Choudhary is preposterous. (17). It has further been submitted on behalf of the petitioner that once the petitioner has been given the benefit of the Act, 1958, the conviction as well as the punishment is wiped-out and the respondents cannot take into account the convictions of the petitioner in the aforesaid two cases of theft. P.P. Choudhary is preposterous. (17). It has further been submitted on behalf of the petitioner that once the petitioner has been given the benefit of the Act, 1958, the conviction as well as the punishment is wiped-out and the respondents cannot take into account the convictions of the petitioner in the aforesaid two cases of theft. This issue has, also, been considered by the Honble Supreme Court in Hari Chand vs. Director of School Education (5), wherein the Honble Apex Court considered and explained its earlier judgment in Aitha Chandra Rao vs. State of Andhra Pradesh (6), and observed as under:- ``Where the law that provides for an offence and its punishment also, stipulating a disqualification, a person convicted of the offence but released on probation, does not, by reason of Sec. 12 suffers the disqualification. It cannot be held, by reason of Sec. 12, that the conviction for an offence should not be taken into account for the purpose of dismissal of the person-convict from govt. service. (18). Thus, in view of the above, if the services of a person in government employment can be terminated on account of conviction inspite of having been given the benefit under Section 12 of the Act, it fails to reason why in similar situation, appointment cannot be refused to a candidate whose name appears in the select list. (19). Similar view has been taken by this Court in Ratan Lal vs. Union of India and others (7). In Delhi Administration through its Chief Secretary and others vs. Sushil Kumar (8), the Honble Supreme Court examined the similar case where the appointment was refused on the past of Police Constable and the Court observed as under:- ``It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority,therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service. (20). In view of the above and in the fitness of the circumstances, I am of the considered opinion that the petitioner, who stood convicted twice for committing theft, does not deserve to be given employment in Police-the disciplined force. The petition is devoid of any merit and accordingly dismissed.