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2015 DIGILAW 773 (JHR)

Manoj Mahto v. State of Jharkhand

2015-07-06

RONGON MUKHOPADHYAY

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ORDER : Rongon Mukhopadhyay, J. In this writ petition, the petitioner has prayed for quashing the order as contained in memo No. 1737/JJ dated 2.5.2009, whereby and whereunder, the respondent No. 3 has canceled the appointment letter issued to the petitioner. A further prayer has been made by the writ petitioner for a direction upon the respondents to permit the petitioner to join in the post of water carrier. 2. Pursuant to an advertisement being Advertisement No. 3/2008 issued by the Director General-cum-Inspector General of Police for appointment in Class IV post, the petitioner made an application in the prescribed format. The petitioner having been declared successful in the selection process was directed to join on the post of water carrier on 10.9.2008. During the process of selection a criminal case was instituted against the petitioner for the offence punishable u/s 304-B of the Indian Penal Code (IPC) in Karra P.S. case No. 26/2008. Upon investigation on 24.10.2008 charge-sheet was submitted against the petitioner. On conclusion of trial vide judgment dated 28.1.2009 in Sessions Trial No. 572/2008, the petitioner was acquitted of the charges against him for the offences punishable u/s 304-B IPC by the learned Additional Judicial Commissioner, FTC, Khunti. On 2.3.2009, the petitioner requested the respondent No. 3 to accept his joining but the same was not done and thereafter by virtue of impugned order as contained in memo No. 1737/ JJ dated 2.5.2009 his appointment has been cancelled, which is under challenge in the present writ petition. 3. Heard Mr. Ashim Kumar Sahani, the learned counsel for the petitioner and Kumar Harsh, learned J.C. to Advocate General, appearing for respondents. 4. It has been submitted by the learned counsel for the petitioner that the impugned order dated 2.5.2009 shows total non-application of mind inasmuch as even though the petitioner was acquitted prior to 2.5.2009, but reference has been made to the charge-sheet submitted against the petitioner while cancelling the appointment letter issued to the petitioner. It has further been submitted that there was no omission or commission on the part of the petitioner in bringing to the knowledge of the authorities, the charge-sheet which had been submitted against him u/s 304-B and the subsequent judgment of acquittal. It has further been submitted that there was no omission or commission on the part of the petitioner in bringing to the knowledge of the authorities, the charge-sheet which had been submitted against him u/s 304-B and the subsequent judgment of acquittal. It has further been submitted that since the petitioner has been honourably acquitted from the criminal case, it cannot be now concluded that the petitioner has antecedents or that he does not bear a good moral character. In such circumstances, the learned counsel for the petitioner has further submitted that the impugned order dated 2.5.2009 be quashed and the petitioner be permitted to join his duty as a water carrier. 5. Learned J.C. to Advocate General while controverting the contention made by the learned counsel for the petitioner has submitted that having a good moral character was a pre-requisite for getting appointed in a disciplined force like the police and since the petitioner was charge-sheeted in a case u/s 304-B which is a grave offence, the petitioner cannot claim appointment. The claim of the petitioner has rightly been rejected by the authorities. It has further been submitted that in course of the trial, six witnesses were examined on behalf of the prosecution and all the witnesses turned hostile which in effect would mean that the petitioner was not honourably acquitted and in such circumstances, even in view of the subsequent development, the petitioner cannot be taken into service. 6. The moot question which requires to be answered as to whether on acquittal in a criminal case even for a grave offence like 304-B IPC, any right has accrued to the petitioner to claim appointment in police service and whether the acquittal of the petitioner can be connoted to be ‘honourable acquittal’. 7. The term ‘honourable acquittal’, ‘clean acquittal’, ‘full exoneration’ are alien to criminal jurisprudence. However in the nature of a case like the present one such terms and its implications have an effect in deciding the dispute between the parties. It is not the case of the respondent authorities that the petitioner has suppressed the initiation of a criminal case against him or that the petitioner had never informed about he being acquitted in the trial. Rather, from the order-sheet appended to the writ petition, it appears that permission was granted to the petitioner to submit his joining under judicial custody. 8. Rather, from the order-sheet appended to the writ petition, it appears that permission was granted to the petitioner to submit his joining under judicial custody. 8. The learned counsel for the petitioner has referred to the judgment of the Hon'ble Supreme in the case of Commissioner of Police and others v. Sandeep Kumar, reported in 2011(4) SCC 644 on which reliance has also been placed by the learned J.C. to Advocate General. The judgment under reference related to non-mentioning in the application form of involvement of the candidate in a criminal case u/s 323/34, I.P.C. In such circumstance it was held that youth often commits indiscrimination which can be often condoned and in any event the offence was not a serious offence like murder, rape or dacoity. The judgment relied upon by the learned counsel for the parties is not applicable to the facts and circumstances of the present case. 9. In the case of Ram Kumar v. Uttar Pradesh & others, reported in 2011(14) SCC 709 , the facts were some how similar to the present case inasmuch as a criminal case was instituted against the petitioner of said case and subsequently he had been acquitted on the basis of the evidence of a sole witness who did not support the prosecution case and in such circumstances it was held by the Hon'ble Supreme Court that it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of police constable. 10. Learned counsel for the respondents has relied upon the case of Delhi Administration through its Chief Secretary and others v. Sushil Kumar, reported in (1996) 11 SCC 605 , wherein it was held that the view taken by the appointing authority wherein the person concerned although was found physically fit, passed the written test and interview and was provisionally selected but on account of antecedent record his appointment was not found to be desirable. It was further held that though the person concerned was discharged or acquitted of the criminal offence the same has nothing to do for reconsideration of his case. It was further held that though the person concerned was discharged or acquitted of the criminal offence the same has nothing to do for reconsideration of his case. Learned J.C. to Advocate General has also relied upon the case Jainendra Singh v. U.P. through Principal Secretary, Home and others, reported in (2012) 8 SCC 748 , which deals with the various yardsticks in deliberate suppression of facts of candidates and verification of antecedent of a candidate. Para 29.10 of the judgment under reference deals with the responsibility for verification of the antecedents of a candidate and it has been held that so long as the candidate has not been acquitted in a criminal case he cannot be held to be suitable for appointment to the post of constable. Reference has also been made to a decision of Full Bench of the Madras High Court in the case of Manikandan & others v. Chairman, Tamil Nadu Uniformed Services, Recruitment, Board, Chennai & others, (W.P.(C) No.38289 of 2005) and other analogous cases wherein one of the questions which was formulated by the Hon'ble Full Bench is whether the acquittal or discharge of a person in a criminal case on benefit of doubt would amount to stigma on the life of a person so as to make him ineligible as per Rule 14(b), Explanation-1 of the Tamil Nadu Special Police Subordinate Rules. The answer to the reference made to the Full Bench was given in the following manner :- "(a) that by virtue of Explanation 1 to clause (iv) of Rule 14(b) of the Tamilnadu Special Police Subordinate Services Rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified;" 11. The learned J.C. to Advocate General while making reference to the aforesaid judgment had tried to highlight the fact that although the petitioner was acquitted from the charges levelled against him in the criminal case, but the same would be stigmatic making him ineligible for Government employment and that too in a disciplined force like the police. 12. The learned J.C. to Advocate General while making reference to the aforesaid judgment had tried to highlight the fact that although the petitioner was acquitted from the charges levelled against him in the criminal case, but the same would be stigmatic making him ineligible for Government employment and that too in a disciplined force like the police. 12. At this juncture it would be necessary to refer to the recent judgment of Hon'ble Supreme Court in the Case of Joginder Singh v. Union Territory of Chandigarh & others reported in (2015) 2 SCC 377 , wherein the following questions were formulated by the Hon'ble Supreme Court:- "14. On the basis of the aforesaid rival legal contentions urged on behalf of the parties, the following points would arise for out consideration : (i) Whether the denial of the benefit of appointment to the appellant by the High Court is legal and valid in the light of the fact that the appellant was acquitted from the criminal case pending against him? (ii) What order?" 13. The questions then arose as to whether the acquittal was an honourable acquittal or not. In the case under reference both the witnesses failed to identify the assailants and they were declared hostile and the learned trial Judge has held that the prosecution has miserably failed to prove the charges levelled in the criminal proceedings. In such circumstance it was held by the Hon'ble Supreme Court that the acquittal of the accused from the criminal case was honourable acquittal. In the said judgment reference has also been made to the case of Inspector General of Police v. S. Samuthiran, reported in (2013) 1 SCC 598 and the relevant paragraph is quoted hereunder:- "24. The meaning of the expression 'honourable acquittal' came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitled an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquittal of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. The expressions 'honourable acquittal', 'acquittal of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honorably acquitted." 14. Coming back to the facts of the present case, the petitioner was acquitted, as none of the six witnesses examined by the prosecution had supported its case. Such acquittal cannot be termed as an acquittal on some technicalities since there was no occasion for the learned trial court to come to a different conclusion against him. Merely because the involvement of the petitioner was found true resulting in submission of charge-sheet which fact had not been suppressed by the petitioner and no contrary stand has also been taken by the respondent-State to conclude otherwise. The subsequent acquittal would lead to a clean slate so far as the antecedent of the petitioner is concerned. The stigma attached to the petitioner on account of his being implicated in the criminal case was washed away due to his subsequent acquittal. Had the petitioner not been acquitted by the trial court, when the impugned order dated 2.5.2009 was passed or had the petitioner not brought information about his acquittal in the criminal case to the knowledge of the respondent authority it would have been justified by the respondent No. 3 to have issued the impugned order, but in view of the contrary facts wherein the petitioner was acquitted from the criminal case much prior to the passing of the impugned order dated 2.5.2009 and this fact having been brought to the notice of the respondent authorities, respondent No. 3 should have taken into consideration the same. That having not been done, the impugned order as contained in memo No. 1737/JJ dated 2.5.2009 issued by the respondent No. 3 deserves to be interfered with. 15. That having not been done, the impugned order as contained in memo No. 1737/JJ dated 2.5.2009 issued by the respondent No. 3 deserves to be interfered with. 15. Accordingly in view of the discussions made herein above, the impugned order as contained in memo No. 1737/JJ dated 2.5.2009 issued by the respondent No. 3 is hereby quashed and set aside and the matter is remanded back to the respondent No. 3 to take a fresh decision in accordance law and also taking into consideration the acquittal of the petitioner from the criminal case and thereafter pass a reasoned order within a period of six weeks from the date of receipt/ production of a copy of this order. 16. With the aforesaid observations and directions, this writ petition is allowed. 17. Pending I.As. if any automatically stands disposed of. Petition allowed.