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2009 DIGILAW 3535 (MAD)

D. G. P. v. D. Mahadevan

2009-09-02

D.MURUGESAN, H.L.GOKHALE

body2009
D.Murugesan, J.:-The appeal, at the instance of Director General of Police, Chennai, challenges the order in the writ petition, whereby the appellant was directed to consider the candidature of the respondent for the post of Sub Inspector of Police eschewing from consideration of the criminal case where the respondent was acquitted. 2. The controversy arises on the following set of facts. The Tamil Nadu Uniformed Services Recruitment Board (hereinafter referred to as "the Board") conducted recruitment of suitable candidates for the post of Sub Inspector of Police for the year 2006. The respondent was one of the candidates, who appeared in the selection. He was successful in the physical efficiency test, written test and viva-voce test. He had secured 75% marks and therefore he was fully qualified to be considered for appointment to the post of Sub Inspector of Police. Nevertheless, by orders of the Director General of Police dated 31.12.2007, he was informed that he was not appointed as Sub Inspector of Police in terms of Rule 13(b) of the Special Rules for Tamil Nadu Police Subordinate Service Rules (hereinafter referred to as "the Rules"). The said Rule reads as under:- "Qualifications: No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the appointing authority, (a) that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service; (b) that his character and antecedents are such as to qualify him for such services; (c) that such person does not have more than one wife living; or if such person is a woman, that she is not married to any person who has a wife living and (d) that he does not have knock knees or bow legs or flat feet. 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 a 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 for appointment only by participating in the next recruitment." 3. 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 for appointment only by participating in the next recruitment." 3. Apparently the said order was passed on the ground that the respondent along with two others was involved in a criminal case registered in Crime No.118 of 1999 on the file of Sub Inspector of Police, Wallajahbad on 14.4.99 for the alleged offence punishable under Sections 341, 323 and 325 of Indian Penal Code. As far as the criminal case is concerned, on completion of investigation, a charge sheet was laid and the case was tried in C.C.No.263 of 1999. The learned Judicial Magistrate, Kancheepuram by his judgment dated 27.10.2003 acquitted him on the ground that the case has not been proved beyond reasonable doubt. He did not disclose the said fact in his application form when he applied to the post of Grade-II Police Constable. As the respondent was appointed as Grade-II Police Constable on 1.12.2003 and the acquittal was on 27.12.2003, a charge memo under Rule 3(b) of the Rules was issued to him on the ground that he suppressed the fact of his involvement as accused in a criminal case and he had furnished false declaration in the verification roll and thereby secured the appointment. An enquiry was conducted and thereafter he was imposed with the punishment of reduction in the time scale of pay by two stages for two years with cumulative effect by order dated 8.3.2006. That order of punishment was not questioned by him and therefore it had become final. While the said order was in force, he applied to the post of Sub Inspector of Police through a selection by direct recruitment and was denied selection for the post. 4. He questioned the order of the Director General of Police in the writ petition. The writ petition came to be allowed on the ground that inasmuch as the respondent was acquitted honourably, Rule 13(b) of the Rules cannot be applied to make him ineligible and consequently directed the consideration of his application for appointment. This order has led to the present appeal. 5. The writ petition came to be allowed on the ground that inasmuch as the respondent was acquitted honourably, Rule 13(b) of the Rules cannot be applied to make him ineligible and consequently directed the consideration of his application for appointment. This order has led to the present appeal. 5. We have heard Mr.J.Raja Kalifullah, learned Government Pleader for the appellant and Mr.D.Rajagopal, learned counsel for the respondent. 6. Rule 13 of the Rules relates to the qualification prescribed for the candidates to apply to the post under direct recruitment. Sub-rule (b) of Rule 13 relates to the character and antecedents of the candidate as one of the criteria for consideration of the application to make a candidate eligible for the post. Later, in G.O.Ms.No.101 dated 30.1.2003, the rule was amended and explanation-1 to the said rule was inserted, whereby it was explained that "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 a person involved in a criminal case." The rule, if read as provided, would show that even if a person is acquitted in a criminal case on the ground of benefit of doubt, he shall be treated as a person involved in a criminal case. In this regard, we may also refer to a judgment of the Full Bench of this Court in Manikandan and others v. The Chairman, Tamil Nadu Uniformed Services Recruitment Board and others, 2008 (2) CTC 97 upholding a similar Rule 14(b)(iv) and the explanation thereto of the Special Rules for Tamil Nadu Police Subordinate Service Rules and consequently holding that the persons acquitted of benefit of doubt or discharged in similar cases can still be considered as disqualified for selection. 7. On facts, the respondent was acquitted on the ground of benefit of doubt. It is the contention of the respondent that though the criminal Court had acquitted him on the ground of benefit of doubt, in effect, he was acquitted honourably and in such case, the acquittal cannot be brought under explanation-1 of Rule 13 to make him ineligible. 8. On facts, the respondent was acquitted on the ground of benefit of doubt. It is the contention of the respondent that though the criminal Court had acquitted him on the ground of benefit of doubt, in effect, he was acquitted honourably and in such case, the acquittal cannot be brought under explanation-1 of Rule 13 to make him ineligible. 8. Before we delve upon the above contentions, we may point out that Criminal Law Jurisprudence contemplates two golden principles namely, (a) presumption of innocence of an accused till the contrary is established; and (b) benefit being given to an accused if there is existence of a reasonable doubt. If an accused is brought before the Court for the commission of alleged offence, the burden is on the prosecution to prove the allegations beyond 'shadow of doubt' or 'reasonable doubt'. What is reasonable doubt or beyond shadow of doubt depends on the facts of each case, where the Court trying the case should apply its mind to arrive at a decision. In the event the Court is of the opinion that the case has not been proved "beyond shadow of doubt" or "beyond reasonable doubt", it may extend the "benefit of doubt" to the concerned accused and consequently acquit him. 9. Normally three concepts of evidence are taken into consideration before a judgment is rendered. They are on the (i) principle of evidence; (ii) principle of no evidence and (iii) principle of insufficient evidence. As regard to the first principle, in the event the Court finds that there are enough evidence to prove the guilt, it convicts and imposes the punishment on the accused. Equally on the principle of no evidence, the Court acquits an accused. For our purpose, the third principle would apply, where the Court is of the opinion that the evidence lacks sufficiency to hold that the prosecution has proved the offence "beyond shadow of doubt" or "beyond reasonable doubt". Here again, sufficiency of evidence depends on the facts of the case and there may be cases where in the absence of any other evidence, the accused may be found guilty on the sole evidence of a witness which could be believed by the Court. Here again, sufficiency of evidence depends on the facts of the case and there may be cases where in the absence of any other evidence, the accused may be found guilty on the sole evidence of a witness which could be believed by the Court. Even in some cases, if one or more witnesses speak about the involvement of an accused, still the Court may discard the evidence on various grounds including on the ground that their evidence cannot be believed etc. In such circumstances also, the Court may extend the benefit of doubt to an accused and consequently acquit him. Such acquittal is otherwise known as "acquittal of all blame". 10. In the above backdrop, the next question that arises for consideration is as to what is honourable acquittal. The Code of Criminal Procedure does not define either the acquittal or honourable acquittal and for that matter, the benefit of doubt as well. It is the Court by its judgments and by applying the principles of innocence of the accused and the burden on the prosecution to prove the offence, recognised the principle of giving benefit of doubt to acquit the accused. In the absence of any definition in the Code of Criminal Procedure, it is very difficult to define what is the meaning of the words "honourable acquittal". Again it depends upon the facts and circumstances of each case. The Court could reasonably presume that if an accused is acquitted or discharged because of some technicality not having been complied with or on the ground that though there is some evidence against him, he must be acquitted by giving the benefit of doubt, it may not amount to honourable acquittal. On the other hand, if an accused is acquitted after full consideration of evidence because the prosecution witnesses are disbelieved and the prosecution has miserably failed to prove the charges, it would amount to honourable acquittal. In the event the Court while acquitting an accused neither say that the case against him is false nor does it say that the accused has been acquitted on the ground of benefit of doubt, then the acquittal may be honourable acquittal or acquittal of all blame. 11. The question still remains as to whether an accused who has been acquitted on the ground of benefit of doubt still be considered to have been acquitted honourably. 11. The question still remains as to whether an accused who has been acquitted on the ground of benefit of doubt still be considered to have been acquitted honourably. With the limited purpose to find out whether an accused has been acquitted on the ground of "benefit of doubt" or "acquitted honourably", the Court may glance through the judgment. If the acquittal, though speaks of benefit of doubt, still it may be a case of no evidence as well. In such case, it is an acquittal on merits, which may also be called as honourable acquittal. In case, if the benefit of doubt is given on the ground of insufficiency of evidence, even though the Court may say "honourably acquitted" without using the words 'benefit of doubt', still such acquittal could be only on the ground of benefit of doubt. 12. As the above consideration depends upon the facts of each case, the grounds on which the respondent was acquitted must be considered. He was implicated for the offence along with two accused. The prosecution examined ten witnesses. P.W.10 was the investigating officer, who supported the case of the prosecution. The conviction cannot be based solely on the ground of the evidence of the investigating officer. P.W.1 was the eye-witness. Though he stated in the chief examination that the respondent had involved in the offence, in cross examination, he did not support the case of the prosecution. Nevertheless, P.Ws.4,5 & 6 have stated that though at the time of occurrence, public also joined along with the accused to attack them, they could not specify which of the accused attacked them particularly. The evidence of P.W.7 is also on the same lines. The learned Magistrate, having considered the evidence in its entirety, found that the evidence is totally insufficient to prove the guilt of the respondent and on that ground held that the prosecution had not discharged the burden "beyond shadow of doubt" or "beyond reasonable doubt" and consequently extended the "benefit of doubt". This finding of the learned Judge is not on the ground of no evidence to claim that the judgment was one of honourable acquittal. Hence the judgment of acquittal is only on the ground of "benefit of doubt". 13. This finding of the learned Judge is not on the ground of no evidence to claim that the judgment was one of honourable acquittal. Hence the judgment of acquittal is only on the ground of "benefit of doubt". 13. There is one more aspect as to the involvement of an accused in a criminal case and the implication of the same in regard to his eligibility for appointment to the post. This may arise in two circumstances namely, in disciplinary proceedings and in selection process. The concept of Criminal Law Jurisprudence and the Service Law Jurisprudence cannot be equated on the same line, as Criminal Law Jurisprudence contemplates the principle of proving the charges beyond reasonable doubt or beyond shadow of doubt which is based on the presumption of innocence of an accused leading to the acquittal. In contrast, in Service Law Jurisprudence, the charges are considered only on the ground of preponderance of probability and the strict rule of evidence which is required under Criminal Law Jurisprudence is not required. This principle is applied when disciplinary proceedings are initiated. (See (1994) 1 SCC 541 , Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal). 14. The next circumstance is as to whether such acquittal would make a candidate ineligible to apply for a post to be filled in directly. It has been repeatedly held by the Apex Court in more than one case that the power to identify the source, eligibility, qualification etc., shall be with the authority empowered to select the candidate. Once such norms for selection are stipulated, a candidate applying to the post must satisfy the norms. Of course, if any of such norms affects the fundamental rights or statutory rights of a candidate, he may question the same. One such eligibility norm is sub-rule (b) of Rule 13 of the Rules. At the outset, we may point out that the respondent has not questioned the said rule or the explanation-1 for that matter. Sub-rule (b) of Rule 13 of the Rules speaks of either acquittal or honourable acquittal, as the case may be. That rule enables the Board to make a candidate ineligible for appointment to the services in the event his character and antecedents are such as to disqualify him for such services. Such satisfaction vest in the Board to find out the character and antecedents of the candidates. That rule enables the Board to make a candidate ineligible for appointment to the services in the event his character and antecedents are such as to disqualify him for such services. Such satisfaction vest in the Board to find out the character and antecedents of the candidates. Going by this rule and keeping in mind that the post in question is Sub Inspector of Police, which is considered to be a post in disciplined force, the character and antecedents are very much relevant. The rule does not speak of either acquittal or conviction, as it speaks only of character and antecedents of the candidate. The Board is justified to deny the selection on the basis of this rule. 15. The question still remains as to whether the respondent can rely upon the explanation-1 to claim that the acquittal was honourable and therefore that explanation cannot be made applicable. That explanation also makes a candidate ineligible even in case where such candidate was acquitted or discharged on the ground of benefit of doubt or due to the fact that the complainant had turned hostile. The second limb of the explanation does not apply to the facts of the case, as the complainant was not treated hostile, as he only did not support the case of the prosecution in the cross examination. As far as the first limb is concerned, it is in clear terms that even if a person is acquitted or discharged on the ground of benefit of doubt, he shall be treated as a person involved in a criminal case. The Board having considered both sub-rule (b) of Rule 13 and the first limb of the explanation-1 found that the respondents is not eligible for appointment to the service by direct recruitment, as he is involved in a criminal case. The words used in the rule are 'whether he is involved in a criminal case'. The judicial review of such administrative decision could be tested only on reasonableness. The scope of judicial review in matters like this is very limited only to find out as to whether there is any justification for the decision of the Board. The words used in the rule are 'whether he is involved in a criminal case'. The judicial review of such administrative decision could be tested only on reasonableness. The scope of judicial review in matters like this is very limited only to find out as to whether there is any justification for the decision of the Board. The Apex Court in K.Vinodh Kumar v. S.Palanichamy and others, (2003) 10 SCC 681 has held that in the proceedings and decisions taken in administrative matters, the scope of judicial review is confined to the decision making process and does not extend to the merits of the decision taken. 16. In this context, we may quote the following classic passage from the judgment of Lord Greene M.R., in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, 1947 (2) All E.R.680 as follows: "It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority." In Tata Cellular v. Union of India, AIR 1996 SC 11 , the Apex Court observed in paragraph-113 as follows: "(1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal over administrative decisions but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct an administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible." 17. (3) The Court does not have the expertise to correct an administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible." 17. On the facts of this case, the Board was justified in not selecting the respondent on the ground that he had involved in a criminal case and though he was acquitted, the same was only on benefit of doubt. The reliance placed by the Board to explanation-1 to sub-rule (b) of Rule 13 cannot be said to be either unfair or unreasonable or the decision is not supported by any provision of the rules. In view of our above discussion and in view of our finding that the acquittal by the criminal Court was only on benefit of doubt and it cannot in any way be construed as one of honourable acquittal, the respondent is not entitled to be considered for selection. Hence the impugned order directing the appellant to consider the respondent for appointment to the post of Sub Inspector of Police eschewing from consideration of the criminal case is liable to be set aside. Accordingly, the impugned order is set aside. 18. The learned Government Pleader, however, would submit that the respondent is serving as a Grade-II Police Constable and the involvement of the respondent makes him ineligible for direct recruitment and at the same time, it will not stand in his way for consideration of promotion when the same is due to him. Hence we make it clear that the findings rendered in this judgment would be only in respect of the direct recruitment and the same shall not stand in the way of the respondent for his consideration to the post of Sub Inspector of Police by way of promotion in future. With the aforesaid observations, the writ appeal is allowed, but there shall be no order as to costs. Consequently, M.P.Nos.1 of 2008 and 1 of 2009 are closed.