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2017 DIGILAW 950 (JK)

State Of Jammu And Kashmir v. Hilal Ahmad Khan

2017-10-23

ALI MOHAMMAD MAGREY, BADAR DURREZ AHMED

body2017
JUDGMENT : Badar Durrez Ahmed, J 1. This appeal has been preferred by the State against the judgment dated 21.11.2015 delivered by a learned Single Judge of this Court in SWP No. 389/2015. 2. By virtue of the impugned judgment, the learned Single Judge directed the issuance of a writ of certiorari, quashing Order No. 3104 of 2014 dated 08.12.2014, issued by the respondent No.2. 3. By virtue of the said order dated 08.12.2014, the respondent herein (the writ petitioner), who had provisionally been selected as Constable in the Jammu and Kashmir Executive Police, in the year 2009 by virtue of an order dated 03.06.2009, was declined the appointment as a Constable on the ground that he was involved in a criminal case arising out of FIR No. 110/2006 under Sections 456, 380, 436 RPC, registered in Police Station, Ganderbal. Consequently his enrolment in the Police Department was withdrawn in terms of the said order dated 08.12.2014. It is that order which was impugned before the learned Single Judge in SWP No. 389/2015. 4. The learned Single Judge noted that the respondent (writ petitioner) had been acquitted of the charges framed against him by the trial Court in terms of a judgment dated 25.01.2012. It is also noted in the impugned order that the said judgment had attained finality as the same had not been challenged. Consequently, the learned Single Judge was of the view that the allegations leveled against the writ petitioner were effaced from the record, and that consequently the withdrawal of his candidature for being appointed as a Constable in the Police Department was not warranted. It is in this backdrop that the aforesaid writ of certiorari had been issued. 5. The impugned judgment is challenged before us by the State. Mr Dar appearing for the appellants referred to a decision of the Supreme Court in State of Madhya Pradesh and others v. Parvez Khan: (2015) 2 SCC 591 . In the said case a similar issue had arisen. The Supreme Court referred to its earlier decision in the case of Commissioner of Police v. Mehar Singh: (2013) 7 SCC 685 . 6. In Mehar Singh (supra), the Supreme Court had observed that, while the standard of proof in a criminal case is proof beyond all reasonable doubt, the proof in a departmental proceedings is based on preponderance of probabilities. 6. In Mehar Singh (supra), the Supreme Court had observed that, while the standard of proof in a criminal case is proof beyond all reasonable doubt, the proof in a departmental proceedings is based on preponderance of probabilities. It was further observed that quite often criminal cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. It was further observed that benefit of doubt would not stand at par with a clean acquittal on merit after a full-fledged trial, where there is no indication of the witnesses being won over. In Mehar Singh (supra), the Supreme Court observed as under:- The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of trust reposed in it and must treat all candidates with even hand. 7. In view of the observations in Mehar Singh (supra), the Supreme Court in Parvez Khan (supra) held as under:- 13. At the same time, the Screening Committee must be alive to the importance of trust reposed in it and must treat all candidates with even hand. 7. In view of the observations in Mehar Singh (supra), the Supreme Court in Parvez Khan (supra) held as under:- 13. From the above observations of this Court, it is clear that a candidate to be recruited to the police service must be worthy of confidence and must be a person of utmost rectitude and must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was completely exonerated. Persons who are likely to erode the credibility of the police ought not to enter the police force. No doubt the Screening Committee has not been constituted in the case considered by this Court, as rightly pointed out by learned counsel for the Respondent, in the present case, the Superintendent of Police has gone into the matter. The Superintendent of Police is the appointing authority. There is no allegation of mala fides against the person taking the said decision nor the decision is shown to be perverse or irrational. There is no material to show that the appellant was falsely implicated. Basis of impugned judgment is acquittal for want of evidence or discharge based on compounding. 8. It is evident from the above that, the decision of the Screening Committee must normally be taken as final unless it is shown to be actuated by mala fides. In the present case the only ground raised by the respondent (writ petitioner) for challenging the order dated 08.12.2014 was that the said respondent, having been acquitted in the criminal case, could not be denied the appointment as a constable in the Police force. There is no allegation of any mala fides. We have examined the writ petition which was filed by the respondent (writ petitioner) and do not find any allegation of mala fides against the Designated Committee which examined the case of the respondent after he gained acquittal. 9. Furthermore, we also examined the acquittal order dated 25.01.2012 passed by the Principal Sessions Judge, Ganderbal, whereby he concluded as under:- After giving thoughtful considerations towards rival arguments advanced by the ld. PP as also ld. Counsel for the accused. 9. Furthermore, we also examined the acquittal order dated 25.01.2012 passed by the Principal Sessions Judge, Ganderbal, whereby he concluded as under:- After giving thoughtful considerations towards rival arguments advanced by the ld. PP as also ld. Counsel for the accused. Undoubtedly the prosecution story as put forth by the ld. PP has become doubtful because PW Sulah Rehman has deposed that brand name of the CD player was Zeenath and the complainant has deposed that the brand name of the CD player was Panasonic. Further the mechanic who had purchased the CD player from the accused has deposed that he has given Radio to accused in exchange of the said CD player but that Radio has not been seized by the police. Further more, the FIR has been sent to the Magistrate on 14.10.2006 at 1. P.M when the FIR was lodged on 13.10.2006, and this delay has not been examined by the prosecution. For the reasons indicated hereinabove this is a fit case where the accused can be given benefit of doubt and while doing so, the prosecution case is dismissed accordingly, as a consequence of dismissal of the challan the accused are acquitted of the charges framed against them under section 457, 380, 436 Ranbir Penal code. The surety shall stand discharged. It is obvious from the above extract that the case was one of acquittal on the basis of benefit of doubt and not a clean acquittal on merits. 10. This being the case, the order dated 08.12.2014 ought not to have been interfered with. 11. Consequently, the decision of the learned Single Judge, which is impugned before us, is set aside. The order dated 08.12.2014 is restored. The writ petition is dismissed. The appeal is allowed.