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2007 DIGILAW 376 (CAL)

KAKON KUMAR ROY v. STATE OF WEST BENGAL

2007-05-16

BHASKAR BHATTACHARYA, KISHORE KUMAR PRASAD

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BHASKAR BHATTACHARYA, J. ( 1 ) THIS application under Article 226/227 of the constitution of India is at the instance of an unsuccessful applicant under section 19 of the Administrative Tribunals Act and is directed against order dated 14th september, 2006 passed by the West Bengal Administrative Tribunal in O. A. No. 2404 of 2006 thereby rejecting the application filed by the writ petitioner against the reasoned order passed by the Deputy Commissioner of Police, headquarter, Kolkata pursuant to an earlier order passed by the Tribunal. ( 2 ) THE facts giving rise to filing of this application may be summed up thus: (a) The writ petitioner appeared at the interview in the Calcutta Police for the post of Constable/sepoy (Driver) and after such interview, was asked to appear at the Medical Board, but, notwithstanding clearance by the medical Board, no appointment letter had been issued in his favour. (b) In column No. 13 of the verification-roll filled up by the petitioner, he answered 'no' against the column which demanded the following query: "have you ever been arrested, detained or convicted by a Court of any offence? If the answer is 'yes', the full particulars of the arrest or detention or conviction and the sentence should be given". (c) In the year 1997, in connection with an incident took place in the area where the writ petitioner resides, a case being Salanpur P. S. Case No. 73 of 1997 was started on 16th August, 1997 under section 379/304a of the Indian Penal Code with section 30 (2) of the C. M. M. Act, 1973. The writ petitioner apprehending arrest in relation to the said case filed an application for anticipatory bail before the learned Court of Sessions judge, Burdwan, being Misc. Case No. 2079 of 1997 and was granted anticipatory bail. (d) Ultimately, by the order dated 5th April, 2003 all the accused persons including the petitioner were acquitted as the prosecution could not prove the case. (e) As the petitioner did not get any appointment letter although he passed through the medical test, in the past, he filed another application under section 19 of the Administrative Tribunals Act before the Tribunal alleging inaction on the part of the respondent authority in not giving appointment. Such application was disposed of by directing the Deputy commissioner of Police, Headquarter, Kolkata, to pass a reasoned order. Such application was disposed of by directing the Deputy commissioner of Police, Headquarter, Kolkata, to pass a reasoned order. (f) Pursuant to such direction given by the Tribunal, the Deputy commissioner of Police, Headquarter, Kolkata, by a reasoned order, disclosed that as the writ petitioner suppressed the fact that he was involved in a criminal case under section 379/304a of the Indian Penal code by deliberately writing 'no' in column No. 13, due to such suppression of material fact, the police authority decided not to appoint him. (g) Being dissatisfied with the aforesaid reasoned order, the petitioner approached the Tribunal for the second time and the Tribunal, by the order impugned herein, has refused to interfere with the order passed by the Deputy Commissioner, Headquarter, Kolkata Police. ( 3 ) BEING dissatisfied, the writ petitioner has come up with the present application. ( 4 ) MR. Ganguly, the learned Advocate appearing on behalf of the petitioner vehemently contended before us that as the writ petitioner was acquitted of the offences alleged in the said case, it necessarily followed that he was involved in a false case and therefore, this Court should set aside the order passed by the Deputy Commissioner, Headquarter, Kolkata Police, disqualifying the writ petitioner for not disclosing his involvement in such a case. ( 5 ) MR. Ganguly further submits that his client having obtained anticipatory bail, he was not at all "arrested" and as such, by writing 'no' against the said column, his client did not commit any act of suppression of fact, as he was not taken into custody at any point of time. Mr. Ganguly further submits that the word "arrest" according to section 46 of the Code of Criminal Procedure means the touching of the body of the accused and taking him into the custody and in this case, by virtue of an order passed by the learned Sessions Judge, his client having obtained anticipatory bail, was never arrested and therefore, he had no duty to disclose that he was arrested in any criminal case. In support of such contention, Mr. Ganguly relies upon the following decisions: 1. Secretary, Department of Home Secretary, A. P. and Ors. vs. B. Chinnam naidu, 2005 (2) SCC 746 . 2. Dharam Pal Singh and Ors. vs. State of Rajasthan and Ors. , 2000 (4) service Law Reporter 612. 3. In support of such contention, Mr. Ganguly relies upon the following decisions: 1. Secretary, Department of Home Secretary, A. P. and Ors. vs. B. Chinnam naidu, 2005 (2) SCC 746 . 2. Dharam Pal Singh and Ors. vs. State of Rajasthan and Ors. , 2000 (4) service Law Reporter 612. 3. M. Ramakrishna Reddy vs. Government of Andhra Pradesh and Ors. , 1978 Lab. IC 1507. 4. Adri Dharan Das vs. State of West Bengal, AIR 2005 SC 1057 . ( 6 ) MR. Das, the learned Advocate appearing on behalf of the State of West bengal has, on the other hand, opposed the aforesaid contention of Mr. Ganguly and has contended that the fact that the writ petitioner was acquitted subsequently is of no consequence in this case. According to Mr. Das, the writ petitioner having applied for joining in the police service, it was expected that he should be true to his averment in the verification-roll and when in the verification-roll, the said column specifically enquired whether he was arrested, it was his duty to mention that he got bail preceded by an "anticipatory bail" and in such a case, his duty was also to disclose the number of the criminal case and the nature of offences alleged. Mr. Das in this connection relies upon the decision of the Supreme Court in the case of Kendriya Vidyalaya Sangathan and Ors. vs. Ram Ratan Yadav, reported in 2003 (3) SCC 437 . Mr. Das, therefore, prays for dismissal of the writ application. ( 7 ) THEREFORE, the only question that arises for determination in this application is whether the Deputy Commissioner, Headquarter, Kolkata Police, was justified in rejecting the candidature of the writ petitioner simply because he had written 'no' in column No. 13 mentioned above in the facts of the present case. ( 8 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record we agree with Mr. Ganguly that merely because a citizen has been implicated in a false criminal case, the pendency of such a case would not be a disqualification in a Government service so long he is not proved to be guilty. Ganguly that merely because a citizen has been implicated in a false criminal case, the pendency of such a case would not be a disqualification in a Government service so long he is not proved to be guilty. However, if in the application form, there is a specific column 'enquiring' whether the candidate was 'arrested' in connection with a criminal case and if the answer is 'yes', to disclose further the detailed description of the case, in such a situation, a person, who has obtained anticipatory bail and consequently been released on regular bail and was facing trial, had a duty to disclose such fact. It is true that subsequently, he was acquitted; but he well knew at he time of filling up the verification roll that he was an accused person in the then pending criminal case and got an anticipatory bail for a particular duration and thereafter obtained regular bail. ( 9 ) ALTHOUGH Mr. Ganguly tried to impress upon us that his client never obtained separate bail and was at large by the strength of the said anticipatory bail and "should be deemed to have never been arrested", we are not at all impressed by such submission. It appears from the order-sheet submitted by the writ petitioner himself that on the date of acquittal, he was present in court and the learned Court had recorded that all the thirteen accused persons were present and were on bail. Moreover, in criminal proceedings, it is preposterous to suggest that an accused person without obtaining bail faced trial and was acquitted. Once anticipatory bail is given, the person obtaining anticipatory bail is required to take regular bail from the Court during the subsistence of the period by which he is protected by the anticipatory bail. Therefore, in the case before us, it was the duty of the writ petitioner to disclose that a criminal case under sections 379/304a of the Indian Penal Code was pending where he was released on bail at the relevant point of time and was facing trial. Suppression of such fact, in our view, was sufficient to disentitle him to be considered even though he was subsequently acquitted. Our aforesaid views find support from the decision of the Supreme Court in the case of Kendriya vidyalaya Sangathan and Ors. vs. Ram Ratan Yadav (supra ). Suppression of such fact, in our view, was sufficient to disentitle him to be considered even though he was subsequently acquitted. Our aforesaid views find support from the decision of the Supreme Court in the case of Kendriya vidyalaya Sangathan and Ors. vs. Ram Ratan Yadav (supra ). ( 10 ) WE now propose to deal with the decisions cited by Mr. Ganguly. ( 11 ) IN the case of Secretary, Department of Home, A. P. and Ors. vs. B. Chinnam naidu (supra), the relevant column required the following information: "have you ever been convicted by a Court of Law or detained under any state/central preventive detention laws for any offence? Whether such conviction sustained in Court of appeal or set aside by the Appellate Court if appealed against?" ( 12 ) WHILE considering such a case, the Supreme Court made the following observations: "a bare perusal of the extracted portions shows that the candidate is required to indicate as to whether he has ever been convicted by a Court of Law or detained under any State/central preventive detention laws for any offence whether such conviction is sustained or set aside by the Appellate Court, if appealed against. The candidate is not required to indicate as to whether he had been arrested in any case or whether any case was pending. Conviction by a Court or detention under any State/central preventive detention laws is different from arrest in any case or pendency of a case. By answering that the respondent had not been convicted or detained under preventive laws it cannot be said that he had suppressed any material fact or had furnished any false information or suppressed any information in the attested form to incur disqualification. " ( 13 ) IN the said case, the candidate was not required to give any information as to whether he was arrested or any case was pending against him, whereas, in the case before us, the column 12 of the verification-roll required specific information whether he was arrested in any case and if the answer was 'yes,' to give detailed description of such case. Therefore, the principle laid down in the said case cannot have any application to the fact of the present case where the duty was cast upon the petitioner to disclose whether he was 'arrested' and the records show that he was on bail in a pending criminal case at the relevant point of time. Therefore, the aforesaid decision cannot help Mr. Ganguly's client in any way. ( 14 ) IN the case of Adri Dharan Das vs. State of West Bengal (supra), the supreme Court while considering the scope of section 438 of the Code of Criminal procedure made the following distinction between ordinary bail and the one granted under section 438 of the Code: "the distinction between an ordinary order of bail and an order under section 438 of the Code is that whereas the former is granted after arrest, and therefore, means release from custody of the police, the latter is granted in anticipation of arrest and is, therefore, effective at the very moment of arrest. [see Gurbaksh Singh vs. State of Punjab, 1980 (2) SCC 565 ]. Section 46 (1) of the Code, which deals with how arrests are to be made, provides that in making an arrest the police officer or other person making the same 'shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action'. The order under section 438 of the Code is intended to confer conditional immunity from the touch as envisaged by section 46 (1) of the Code or any confinement. The Apex court in Balachand Jain vs. State of Madhya Pradesh, AIR 1977 SC 366 , has described the expression 'anticipatory bail' as misnomer. It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest a person shall be released on bail. Manifestly there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. Manifestly there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. The power exercisable under section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under section 438. The power being of important nature it is entrusted only to the higher echelons of judicial forums,. e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail. " (Emphasis supplied) ( 15 ) THEREFORE, the aforesaid observations of the Supreme Court rather go against the writ petitioner before us inasmuch as it necessarily follows from those observations that once an order under section 438 of the Code of Criminal procedure is obtained, the moment the accused would be arrested, without sending him to jail, he would be granted bail. Therefore, the writ petitioner got bail after arrest but before sending him to jail. If that happened to the writ petitioner, it was his duty to mention that he was arrested but before sending him to jail, he was granted bail by virtue of the anticipatory bail granted in his favour and in such circumstances, the detailed description of the case ought to have been mentioned. ( 16 ) MOREOVER, as pointed out by the Supreme Court in the case of Niranjan singh vs. Prabhakar Rajaram Kharote, reported in AIR 1980 SC 785 , if a person without being actually taken into custody by the police, himself appears before sessions Court and prays for bail, he should be deemed to be in judicial custody and his application for bail can be considered on merit. In such a case, it should be presumed that by submitting to the jurisdiction of the Court he has treated himself to have suffered arrest. In such a case, it should be presumed that by submitting to the jurisdiction of the Court he has treated himself to have suffered arrest. Therefore, the moment a person is found to have obtained bail, as it appears from the order of acquitting the petitioner, it necessarily follows that he was previously arrested. ( 17 ) IN the case of Dharam Pal Singh and Ors. vs. State of Rajasthan (supra), the following three questions were referred to the Full Bench of the Rajasthan high Court for consideration: "1) Whether the fact that the candidate was prosecuted or subjected to the investigation on the criminal charge is material fact, suppression of which would entitle an employer to deny employment to a candidate on that ground? 2) Whether the ultimate acquittal of the candidate who was prosecuted on the criminal charge would condone or washout the consequence of the suppression of the fact that he was prosecuted? 3) Whether the suppression of the material fact would not by itself disentitle the candidate from being appointed in service?" the Full Bench answered those questions in the following terms: "1. The fact a candidate was prosecuted or subjected to investigation on the criminal charge is a material fact, suppression of which, would entitle an employer to deny employment to a candidate on that ground. 2. The ultimate acquittal of the candidate, who was prosecuted on the criminal charge, would not condone or washout the consequence of the suppression of the fact that he was prosecuted. 3. That suppression of material fact would by itself disentitle a candidate from being appointed in the service. " ( 18 ) WE fail to appreciate how the said decision can be of any avail to Mr. Ganguly's client; on the other hand, those answers support the contention of the State-respondent. ( 19 ) IN the case of M. Ramakrishna Reddy vs. State of A. P. , reported in 1978 lab IC 1507, the question before the Andhra Pradesh High Court was whether a person can be denied appointment on the ground that he was convicted of an offence under section 92 of the Factories Act for constructing a building without permission. According to the concerned Service Rules, mere commission of an offence was not by itself sufficient for a disqualification unless it involved moral turpitude. According to the concerned Service Rules, mere commission of an offence was not by itself sufficient for a disqualification unless it involved moral turpitude. In that context, the High Court held that the conviction under the aforesaid provision being not one for an offence involving moral turpitude, the candidature of the petitioner could not be cancelled. In the case before us, we are concerned with a matter where a candidate has suppressed the fact that he was arrested in connection with a criminal case nor did he disclose the particulars of such pending case though required under the verification-roll signed by the writ petitioner. ( 20 ) THEREFORE, the decisions cited by Mr. Ganguly do not support his client in any way. ( 21 ) ON consideration of the entire materials on record, we therefore, find no illegality in the order passed by the Deputy Commissioner of Police, headquarter, Kolkata, and consequently, there is no valid reason for interfering with the order passed by the Tribunal below. ( 22 ) THE writ application, thus, fails and is dismissed. In the facts and circumstances, there will be, however, no order as to costs. Writ application dismissed.