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2011 DIGILAW 1873 (ALL)

MOHD. KAYUM v. STATE OF U. P.

2011-08-04

KRISHNA MURARI

body2011
JUDGMENT Hon’ble Krishna Murari, J.—Petitioner after selection was recruited and appointed as a constable in police force on 19.6.2006. After completing training he was posted as constable at Police Station Dauki, district Agra on 14.8.2007. By means of order dated 25.10.2007 passed by the Superintendent of Police, Agra the candidature of the petitioner has been cancelled on the ground that at the time of recruitment he filed a false affidavit in relation column provided for declaration in respect of criminal cases registered or pending against him as he failed to disclose the case crime No. 13 of 1996 under Section 452, 323, 504 and 506 I.P.C. read with Section 3(i)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and case crime No. 43 of 2001 under Section 324, 504 and 506 I.P.C. read with Section 3 (i)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act in District Kannauj. 2. Sri Vijay Gautam, learned counsel for the petitioner has submitted that the petitioner was appointed in the year 2007 and case crime No. 13 of 1996 was registered on 24.1.1996 and subsequently vide order dated 31.7.2003 passed by the Special Judge, S.C. and S.T. Act in S.T. No. 28 of 1997 he was acquitted. In respect of case crime No. 43 of 2001, it has been submitted that the First Information Report was registered behind the back of the petitioner and during the course of investigation it was found he was falsely implicated in the said case hence he was not charge-sheeted. Categorical averments in this regard have been made in paragraph 16,17, 18 and 19 of the writ petition. It has further been submitted that since there was no clause requiring that if there was a criminal case in the past and has resulted in acquittal, then also the fact was to be mentioned in the declaration form and thus petitioner in good faith did not disclose about the case crime No. 13 of 1996 as he was acquitted. In respect of other case crime No. 43 of 2001 is concerned, it is submitted that since the implication of the petitioner in the said case was found to be false during investigation and he was not charge-sheeted as such he again did not disclose the same. 3. In respect of other case crime No. 43 of 2001 is concerned, it is submitted that since the implication of the petitioner in the said case was found to be false during investigation and he was not charge-sheeted as such he again did not disclose the same. 3. A counter-affidavit on behalf of the State respondents has been filed wherein the fact that the petitioner was acquitted in case crime No. 13 of 1996 and he was not charge-sheeted in case No. 43 of 2001 and his implication was found to be false has been admitted in paragraph 5. The only submission made by learned Standing Counsel is that since two criminal cases were registered against the petitioner and despite the fact that in one case he had been acquitted and in other case his implication was found to be false, a declaration in that regard was required to be given in the affidavit and non-disclosure amounts to concealment and in such circumstances, respondent No. 4 rightly came to the conclusion that petitioner obtained the appointment by concealing the fact of criminal cases and his appointment has rightly been cancelled. 4. I have considered the arguments advanced by learned counsel for the parties and perused the record. 5. As regard the submission made by the petitioner with respect to case crime No. 13 of 1996 that there was no clause regarding the fact that if there was criminal case in the past and he had been acquitted then this fact was required to be mentioned in the affidavit as such the petitioner did not mention in good faith, in my opinion, if there was no clause regarding any criminal proceeding in past, then there was no obligation on the part of a person concerned to give a declaration to that effect. In my view, it cannot be stated that it was intentional. 6. The view taken by me finds supports from the judgment of a Hon’ble single Judge in writ petition No. 59218 of 2007 (Surendra Yadav v. State of U.P. and others) decided on 26.2.2007 as well as writ petition No. 51282 of 2007 (Sanjay Kumar Singh v. State of U.P. and others) decided on 27.1.2010. There is yet another aspect of the matter. There is yet another aspect of the matter. It is well settled that every judgment operates retrospectively unless expressly made prospective and since the petitioner was acquitted in case crime No. 13 of 1996 hence it will be deemed that petitioner was never involved in the said criminal case and thus was under no obligation to disclose the same. The view taken by me finds supports from the Division Bench judgment of this Court in the case of Qamrul Hoda v. Chief Security Commissioner, North Eastern Railway, Gorakhpur, (1997) 2 UPLBEC 1201 . In so far as non-disclosure of other case crime No. 43 of 2001 is concerned, since only an FIR was lodged and during investigation it was found that petitioner was falsely implicated and the was never charge-sheeted as such it cannot be deemed that there was criminal case registered or pending against him. Hence, non-disclosure of the same also does not amount to any concealment of fact. 7. Further it is admitted case between the parties that prior to cancellation of the candidature of the petitioner, no notice or opportunity of hearing was provided. The Hon’ble Apex Court in the case of Chandra Prakash Shahi v. State of U.P. and others, (2000) 5 SCC 152 has held that such an order amounts to dismissal therefore, notice and opportunity was necessary. The Apex Court has further held that notice is also required under Para 541 of Police Regulations. The same view has been taken by a Division Bench in the case of Paras Nath Pandey v. Director, North Central Zone, Cultural Centre, Allahabad, 2008(10) ADJ 283 (DB) wherein it has been held that such order passed by an authority cannot be survived. 8. Admittedly, the petitioner had been given appointment and he was working on the post. If a person is working on the post a civil right accrues and notice and opportunity is necessary. Thus the order impugned in this petition is in gross violation of principle of natural justice. Further as there is no compliance of Regulation 541(2) of Police Regulation as such also the impugned order passed by the respondent authority is not sustainable in law. 9. For the aforesaid reasons, the impugned order dated 25.10.2007 (Annexure 1 to the writ petition) passed by the respondent No. 6 ? Senior Superintendent of Police, Agra is not sustainable in law and is hereby quashed. 9. For the aforesaid reasons, the impugned order dated 25.10.2007 (Annexure 1 to the writ petition) passed by the respondent No. 6 ? Senior Superintendent of Police, Agra is not sustainable in law and is hereby quashed. Writ petition stands allowed. 10. However, in the facts and circumstances, there shall be no order as to costs. ————