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Allahabad High Court · body

2011 DIGILAW 1822 (ALL)

TEJVEER SINGH v. STATE OF U. P.

2011-08-01

KRISHNA MURARI

body2011
JUDGMENT Hon’ble Krishna Murari, J.—Heard Sri Adarsh Bhushan holding brief of Sri Ashok Khare, Senior Advocate appearing for the petitioner and learned Standing Counsel for the State respondents. 2. Pleadings have been exchanged between the parties and with the consent of the learned counsel for the parties, this petition is being disposed of finally under the Rules of Court. 3. The case of the petitioner as set out in the writ petition is that he was an applicant for recruitment as a constable in civil police in pursuance of an advertisement issued in 2004. After being selected, he was required to file an affidavit indicating whether he was ever involved in a criminal case or not. Petitioner accordingly filed an affidavit in the year 2005 categorically stating that no criminal case was registered or pending against him. Subsequent to the recruitment and posting in the process of character verification, a report dated 30.7.2007 was received from the Senior Superintendent of Police, Bulandshahr in which it was mentioned that the petitioner was involved in criminal case No. 126 of 1999 under Sections 323, 504 and 506 I.P.C. read with Section 3(1)(x) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act. On the basis of the said report, the services of the petitioner was terminated by order dated 11.8.2007 passed by the respondent No. 2 Senior Superintendent of Police, Budaun. 4. Petitioner approached this Court by filing writ petition No. 1644 of 2008 which was disposed of vide order dated 11.1.2008 directing the Senior Superintendent of Police, Bulandshahr where the alleged criminal case was registered against the petitioner, to decide the representation. In the said judgment, it was noticed by the Court that since the petitioner categorically states that he had no knowledge of the criminal case having been registered against him which was a pure question of fact, the same was to be considered and decided by the Senior Superintendent of Police, Bulandshahr. In compliance of the order, the Senior Superintendent of Police, Bulandshahr considered the representation of the petitioner and forwarded a report on 7.3.2008 to Senior Superintendent of Police, Budaun who had passed the order terminating the services of the petitioner. 5. In compliance of the order, the Senior Superintendent of Police, Bulandshahr considered the representation of the petitioner and forwarded a report on 7.3.2008 to Senior Superintendent of Police, Budaun who had passed the order terminating the services of the petitioner. 5. Petitioner again approached this Court by filing writ petition No. 45846 of 2008 challenging the order dated 11.8.2007 mainly on the ground that the report forwarded by Senior Superintendent of Police, Bulandshahr clearly demonstrates that the petitioner did not have knowledge of the pendency of the criminal case at the time of filing the affidavit as such, the order passed by the Senior Superintendent of Police, Budaun based on the facts that he has deliberately concealed the details of the criminal case in the affidavit is liable to be quashed. This Court vide order dated 8.9.2008 again disposed of the writ petition directing the respondent No. 2 Senior Superintendent of Police, Budaun to consider the application of the petitioner for recall of the order dated 11.8.2007 after considering the report dated 7.3.2008 of the Senior Superintendent of Police, Bulandshahr. In pursuance of the said order, respondent No. 2 Senior Superintendent of Police, Budaun again rejected the representation of the petitioner holding that he has filed a false affidavit and failed to disclose the details of the criminal case pending against him in the affidavit. 6. Sri Adarsh Bhushan, learned counsel for the petitioner contended with vehemence that alleged case crime registered at police station Khurja Nagar was not within the knowledge of the petitioner inasmuch he was never investigated by the concerned police station or he was challaned in the said case and to the contrary, final report was submitted against the petitioner on 15.3.2000. It is further submitted that for the first time the said case came to his knowledge after he was summoned under Section 319 Cr.P.C. by the Court and in pursuance whereof, he appeared before the Court and obtained bail on 13.2.2007 and was subsequently acquitted vide order dated 29.5.2007. It is pointed out that since the petitioner had no notice or knowledge about the pendency of the criminal case before he was summoned under Section 319 Cr.P.C. as such, there was no occasion for him to disclose the said case in the affidavit filed in 2005 at the time of recruitment. It is pointed out that since the petitioner had no notice or knowledge about the pendency of the criminal case before he was summoned under Section 319 Cr.P.C. as such, there was no occasion for him to disclose the said case in the affidavit filed in 2005 at the time of recruitment. Relying upon the findings in the report dated 7.3.2008 submitted by the Senior Superintendent of Police, Bulandshahr, it has been urged that the report clearly states that the petitioner was not chargesheeted in the said case and was summoned by the Court in exercise of power conferred by Section 319 Cr.P.C. whereupon he obtained bail on 13.2.2007 and was subsequently acquitted on 29.5.2007 and thus it is clearly established that as on the date the affidavit has been filed, the petitioner did not have any knowledge about the pendency of the criminal case as such, he could not be charged of having filed a false affidavit. 7. Counter-affidavit has been filed by the State respondents. Referring to the averments made therein, learned Standing Counsel submitted that since the petitioner was involved in a criminal case and failed to disclose the same in the affidavit as such, his service has rightly been terminated. It has been stated in the counter-affidavit that the petitioner had filed two affidavits; one in the year 2004 at the time of recruitment and second in 2005 at the time of posting. Only copy of the affidavit filed in 2005 has been filed as Annexure -1 to the counter-affidavit. In paragraph 9 of the counter-affidavit, it has been admitted that the petitioner was summoned by the Court under Section 319 Cr.P.C. vide order dated 26.10.2005. There is no denial of the fact that the petitioner was not charge-sheeted in the said case rather there is an admission by the respondents that in pursuance of the order passed under Section 319 Cr.P.C. the petitioner appeared in the Court and obtained bail on 13.2.2007. 8. I have considered the argument advanced by learned counsel for the parties and perused the record. 9. The facts as emerge out from the respective pleadings are that the petitioner submitted an affidavit in the year 2005 at the time of posting stating that no criminal case was registered or pending against him. The First Information Report in respect of case crime No. 126 of 1999 was registered on 27.2.1999. 9. The facts as emerge out from the respective pleadings are that the petitioner submitted an affidavit in the year 2005 at the time of posting stating that no criminal case was registered or pending against him. The First Information Report in respect of case crime No. 126 of 1999 was registered on 27.2.1999. After investigation final report was submitted by the police in so far as the petitioner is concerned. Thus he was not challaned in the said case. It was only when the petitioner was summoned under section 319 Cr.P.C. vide order dated 26.10.2005 the fact of the pendency of the criminal case came to the knowledge of the petitioner and he obtained bail on 13.2.2007. 10. The aforesaid facts clearly go to establish that the petitioner could not and did not have knowledge of the pendency of the criminal case at the time of filing the affidavit in the year 2005 and thus he cannot be charged of filing a false affidavit. A person can be liable to disclose any fact only when the same is within his knowledge. No disclosure of fact can be made which is not within the knowledge. The burden of proof about a fact specially within the knowledge of the person lies on him. Once the petitioner came out with a specific case that he had no knowledge about the criminal case, at the time of filing the affidavit, the burden shifted upon the respondents to establish by evidence and demonstrate that petitioner had knowledge of the said fact and he purposely withheld the same. The respondents have failed to discharge the said burden. Rather the report of the Senior Superintendent of Police, Bulandshahr indicates that petitioner came to know about the criminal case only after he was summoned by the Court under Section 319 Cr.P.C. There is no material on record to indicate that petitioner was ever subjected to any investigation or arrested or was subjected to any such action which may go to establish the knowledge of the proceedings on the part of the petitioner at any point of time before or at the time of filing the affidavit. 11. In the facts and circumstances of the case, it is clearly established that the petitioner did not have any knowledge about the criminal case against him at the time of filing of the affidavit. 11. In the facts and circumstances of the case, it is clearly established that the petitioner did not have any knowledge about the criminal case against him at the time of filing of the affidavit. Thus he cannot be castigated for filing a false affidavit. 12. The impugned order terminating the services of the petitioner based on the fact he filed a false affidavit and failed to disclose about the pendency of the criminal case is without any basis and based on a mere presumption without any proof and thus not liable to be sustained. 13. In view of above, the impugned order dated 11.8.2007 as well as 1.8.2008 passed by the Senior Superintendent of Police, Budaun are hereby quashed. Writ petition stands allowed. The petitioner is entitled to reinstatement with all consequential benefits. 14. However, in the facts and circumstances, there shall be no order as to costs. ——————