1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25.07.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)No.7837 of 2011 M.P.(MD)Nos.1 and 2 of 2011 K.Ilayaraja ... Petitioner v. 1. The Director General of Police, Kamarajar Salai, Mylapore, Chennai 600 004. 2. The Chairman, Tamil Nadu Uniformed Service, Recruitment Board, No.807, P.T.Lee Chengalvaraya Naicker Maaligai, Anna Salai, Chennai 600 002. ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of Certiorarfied Mandamus, to call for the records relating to the Memorandum in Rc.No.168/29421/Appointment 1(2)/2011, dated 17.06.2011 on the file of the first respondent herein, quash the same and directing the first respondent to consider the name of the petitioner with Registration No.2900149 for final selection and appointment to the post of Grade-II Police Constable in the services of the Tamil Nadu Police, within the time frame. For Petitioner : M/s.S.Subbiah For Respondent : Mr.T.S.Mohamed Mohideen (Special Government Pleader) O R D E R An aspirant to the post of Police Constable, Grade-II, has been denied selection, vide order, dated 17.06.2011, of the Director General of Police, Chennai, first respondent herein, on the ground that though he was acquitted in a criminal case in Cr.No.100 of 2008, under Sections 147, 148, 294(b), 336, 506(ii) IPC., by the learned Judicial Magistrate, No.II, Sivagangai, on 06.01.2011, on the ground that the prosecution witnesses had turned hostile, yet as per Rule 14(b) of the Special Rules for the Tamil Nadu Police Subordinate Service, his past conduct and character do not satisfy the rule of recruitment. Challenging the same, the petitioner has filed the present writ petition. 2. Assailing the correctness of the order and taking this Court through the judgment made in C.C.No.25 of 2009, dated 06.01.2011, Mrs.P.Jessi Jeva Priya, learned counsel for the petitioner submitted that though during the trial, the prosecution examined seven witnesses and marked four documents, there was no evidence before the Court to prove https://hcservices.ecourts.gov.in/hcservices/ 2 the criminal charges levelled against the petitioner and therefore, the acquittal cannot be said to have been made on benefit of doubt. According to her, the learned Judicial Magistrate, has clearly observed that there was no evidence produced by the prosecution to prove the criminal charges and therefore, it should be considered only as 'honourable acquittal'. 3. Learned counsel for the petitioner also submitted that the acquittal was made on 06.01.2011 and that the petitioner had not suppressed the fact of his involvement in the criminal case, in the verification roll, which was conducted on 11.01.2011. Taking this Court through Paragraphs 8 to 12 of the Division Bench judgment made in W.A.No.1287 of 2008, dated 02.09.2009, she submitted that if there is no evidence to prove the charges, then the acquittal should be treated on merits and that the same should be nothing but 'honourable acquittal'. 4. Per contra, learned Additional Government Pleader submitted that the order of acquittal, dated 06.01.2011 in C.C.No.25 of 2009, on the file of the Judicial Magistrate, No.II, Sivagangai, cannot be treated as to one of honourable acquittal and that the petitioner and other accused, were acquitted only because the complainant had turned hostile. It is his further submission that what is relevant for consideration, recruitment to the disciplined force, under Rule 14 of the Special Rules for the Tamil Nadu Police Subordinate Service, is only the conduct and antecedent of the aspirant, for entering into a disciplined force and in the case on hand, the first respondent has considered the judgment rendered in the Criminal case, in proper perspective and rightly rejected the candidature of the aspirant. He also submitted that when the petitioner was involved in a criminal case, rejection of his candidature is justified. For the abovesaid reasons, he prayed for dismissal of the writ petition. 5.Heard the learned counsel for the parties and perused the materials available on record. 6.Rule 14(b) of the Special Rules for the Tamil Nadu Police Subordinate Service, as it stood prior to the amendment, contained only Clauses (i), (ii) and (iii). After the amendment and introduction of Clause (iv) with Explanations 1 and 2, the amended Rule reads as follows:- "14(b). No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the appointing authority. (i) that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service and (ii) that his character and antecedents are such as to qualify him for such service; and (iii) that such a person does not have more than one wife living. (iv) That he has not involved in any criminal case before police verification. Explanation (1): A person who is acquitted or discharged on benefit of doubt or due to the fact that the https://hcservices.ecourts.gov.in/hcservices/ 3 complainant 'turned hostile'; shall be treated as 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 right for appointment only by participating in the next recruitment." 7.Before adverting to the question, as to whether the petitioner is eligible to be considered for the post of Grade-II Police Constable, this Court deems it fit to consider the distinction between 'honourable acquittal' and 'acquittal on benefit of doubt', as explained by the Division Bench of this Court in W.A.No.1287 of 2008, dated 02.09.2009. At Paragraphs 8 to 11, the Division Bench has held as follows: "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' of '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 of 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", if 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 in 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 quilt, if 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 quality 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 https://hcservices.ecourts.gov.in/hcservices/ 4 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 acquitable. The Code of Criminal Procedure does not define either the acquittal of 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, recognized 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, if 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 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." 8.Now reverting back to the case on hand, it could be seen from the judgment of the Criminal Court, the petitioner and 11 others were charged for the offences, under Sections 147, 148, 294(b), 336, 506(ii) IPC. During the pendency of the trial, the 9th accused died and therefore, the charge stood as abated, insofar as the said accused is concerned. Seven prosecution witnesses have been examined. After analyzing the evidence, https://hcservices.ecourts.gov.in/hcservices/ 5 the learned Judicial Magistrate, No.II, Sivagangai, at Paragraphs 16, 17, 18 and 19, recorded as follows: "16. m.rh.1 jd; rhl;rpaj;jpy; vjphpfs; fw;fy; nrhlhghl;oyhy; jhf;fpajhft[k; jhd; Xo Xspe;J bfhz;ljhft[k; rhl;rpak; mspj;Js;s nghjpYk;/ vjphpfs; gad;gLj;jpajhf brhy;yg;gl;l Ma[j';;fs; vJt[k; rhd;W bghUl;fshf ,e;e Pjpkd;wj;jpy; jhf;fy; bra;ag;gltpy;iy. rk;gt ,lj;jpid js Ma;t[ nkw;bfhz;L fhty; Jiwapdh; jhf;fy; bra;j ghh;it kf$h; m.rh.M.2 khjphp tiuglk; m.rh.M/4 Mfpatw;wpy; rk;gt ,lj;jpy; fw;fy; nrhlhghl;oy; cile;j Jz;L ,Ug;gjhf Fwpg;gpl;L fhl;lg;gltpy;iy. Vdnt mjid fUj;jpy; bfhs;s ntz;oajhfnt ,e;e Pjpkd;wk; ek;g[fpwJ. 17.m.rh.1 mspj;j g[fhh; kw;Wk; mjd; mog;gilapy; gjpag;gl;l Kjy; jfty; mwpf;if kw;Wk; md;iwa jpdnk m.rh.1 mspj;jjhff; fhty; Jiwapdh; gjpt[ bra;j Ftp K.r.gphpt[ 161(3) ?d;goahd thf;FK:yj;jpidf; fUj;jpy; bfhs;Sk;nghJ kw;Wk; mth; ePjpkd;wj;jpy; mspj;j rhl;rpaj;idf; fUj;jpy; bfhs;Sk;nghJ Kuz;gl;Ls;sjhfnt ,e;e Pjpkd;wj;jpw;Fj; bjhpa tUfpwJ. ; nkYk; ePjpkd;wj;jpy; tHf;fpw;F K:y Mjhukhd muR jug;gpy; jhf;fy; bra;ag;gl;l Mtzk; g[fhh; kD m.rh.M.1y; rhl;rpfshff; ifbahg;gk; ,l;Ls;s egh;fs; ePjpkd;wj;jpy; tprhuizapd; nghJ j';fSf;Fg; g[fhh; Fwpj;J vJt[k; bjhpahJ vd;Wk; m.rh.1 fhty;epiyaj;jpy; bfhLj;j jfty; Fwpj;J vJt [k; bjhpahJ vd;Wk; Fwpg;gpl;L rhl;rpak; mspj;Js;shh;. mjd; mog;gilapy; vjphp jug;gpy; g[fhh; thf;FKyk; Kd; tpnuhjk; fhuzkhff; bfhLf;fg;gl;ljhf vLj;Jiuf;fg;gl;l re;njfj;jpid Vw;Wf;bfhs;s ntz;oajhf ,e;e Pjpkd;wk; Kot[fhz;fpwJ................. muR jug;g[ rhl;rpfs; 7tJ vjphpapd; kPJ Rkj;jg;gl;Ls;s Fw;wr;rhl;ow;F khwhf muRf;F vjpuhfg; gpwH; rhl;rpakspj;Js;s nghjpYk; cWjpa{l;lg;glhj g[fhh; thf;FKyk; kw;Wk; m.rh.1 Md bja;nte;jpud; vd;gtuJ rhl;rpak; rk;gt neuj;jpy; cld; nUe;jjhfr;brhy;yg;gl;l gpw rhl;rpa';fspd; tHp cWjpa {l;lg;gltpy;iy vd;nw ,e;e Pjpkd;wk; Kot[ fhz;fpwJ. muR jug;gpy; jhf;fy; bra;ag;gl;l Mtz';fs; vjphpapd; Fw;wr;braypd; tpisthf m.rh.1f;F fhak; vJt[k; Vw;gLj;jg;gl;lJ Fwpj;J kUj;Jt rhl;rpa rhd;whtz';fs; vJt[k; Kd;dpiyg;gLj;jg;gltpy;iy. vdnt ePjpkd;wj;jpy; vjphpapd; kPJ Rkj;jg;gl;Ls;s njr.gphpt[ 324 ,d; goahf tidag;gl;l Fw;wr;rhl;il epUgpf;fg;BghJkhd Mjhuk; Kd; itf;fg;gltpy;iy vd;nw ,e;e Pjpkd;wk; ek;g[fpwJ. 18. rk;gt neuj;jpy; vjphpfs; rl;l tpnuhjkhf mikjpiaf; Fiyf;Fk; tifapy; rl;l tpnuhjkhff; Tl;lkhf n.j.r. gphpt [ 141ny; brhy;yg;gl;l tiuaiwf;F cl;gl;l Fw;wk; g[hpe;jjw;fhf muR jug;gpy; nghjpa rhl;rpa rhd;whtz';fs; vJt[k; Kd;dpiyg;gLj;jg;gltpy;iy. Vjphpfs; midtUk; bghJ nehf;fj;Jld; fyfk; tpistpf;fntz;Lk; vd;w vz;zj;Jl;d bray;gl;ljw;Fg; nghJkhd rhl;rpa rhd;whtz';fs; muRjug;gpy; Kd; itf;fg;gltpy;iy.” https://hcservices.ecourts.gov.in/hcservices/ 6 9.Upon analysis of the evidence let in, both oral and documentary, the learned Judicial Magistrate, No.II, Sivagangai, has come to a categorical conclusion that there was no evidence before the Court to substantiate the charges. At more than one place, the learned Judicial Magistrate, has categorically held that no evidence was not let in, before the Court by the prosecution. The complainant itself has been found to be given out of ill-motive. In such circumstances, the decision of the Division Bench, holding that if an accused is acquitted after full consideration of the evidence, because the prosecution witnesses are disbelieved and that the prosecution has miserably failed to prove the charges and that, it would amount to an honourable acquittal, squarely applies to the facts of the case. 10. In yet another case in D.Mahadevan Vs. The Director General of Police reported in (2008 (4) MLJ 88) a learned single Judge, who after considering the criminal Court judgment and relying on the judgment of the Bombay High Court in H.I.Kazi Vs. J.C. Agarwal reported in (1980 (41) FLR 171), held that as against the petitioner therein, there was no evidence and therefore, directed to provide the post of Grade-II Police Constable. It is worthwhile to extract H.I.Kazi's case referred therein. 10.It is very difficult to define what is the meaning of the word, 'honourable acquittal'. In my view, it will depend on the fact and circumstances of each case as to whether a person can be said to have been discharged or acquitted honourably or not. The judgment of Supreme Court in State of Assam v. Raghvan 1972 S.L.R. 344, is relied on by both the sides on the meaning of honourable acquittal as well as to show whether in the facts and circumstances of the present case petitioner can be said to have been honourabley acquitted. At page 347 Paragraph 8, a reference is made to a note and administrative instructions appearing under the rule similar to one applicable in this case, which seem to show that the words 'honourably' meant, acquitted of or that the Government servant has been fully exonerated. According to the Supreme Court, this meaning was supported by a judgment of Calcutta High Court in Robert Stuart Wauchope v. Emperor 1934(61) I.L.R. Cal. 168. In my view, therefore, though it is very difficult to define precisely what is meant by the words 'honourably acquitted', it is safe to say 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 benefit of doubt, it may not amount to an honourable acquittal. However, if an accused is acquitted after full consideration of evidence because the prosecution witnesses were disbelieved and the prosecution had miserably failed to prove the charges, it would amount to honourable acquittal. It is difficult to understand what more is required for honourable acquittal of the accused than acquittal of the https://hcservices.ecourts.gov.in/hcservices/ 7 accused on disbelieving the prosecution evidence in toto. In the present case, though there are some observations made at the end of the judgment by the High Court acquitting the petitioner which may appear to be ambiguous, if the judgment is read as a whole, there can be little doubt that the accused was acquitted not by giving benefit of doubt, in spite of there being some evidence against him, but because the prosecution failed to prove the case against him... Mr. Cama has emphasized that accused No. 3 was acquitted because the prosecution failed to lead evidence of two witnesses. That his, defence was not believed but was only found to be probably true and that he was acquitted on the ground of the prosecution not having proved the case beyond reasonable doubt. He contends that when two views are possible on whether the judgment amounted to honourable acquittal or it did not, and the officer concerned had decided that this judgment did not amount to honourable acquittal, this Court should not interfere with the decision. Assuming the correctness of the contention of Mr. Cama on the Court's power to interefere with such decision, I am of the view that the judgment clearly acquits the accused not on some technical ground or not because there was evidence both ways but the evidence of prosecution being found slightly wanting, the benefit of doubt was given to the petitioner. The judgment clearly establishes that the prosecution had miserably failed to establish the case against accused No. 3 and if this is not honourable acquittal, it is difficult to say what can be said to be the honourable acquittal. The decision, if any, arrived in the face of such a judgment cannot be said to be reasonable and therefore cannot be said to be bona fide and it discloses non-application of mind.” 11.The examination of the criminal Court judgment, in the light of the principles laid down by the Division Bench of this Court, as to how the distinction can be made with reference to the honourable acquittal or benefit of doubt, this Court is convinced that when the learned Judicial Magistrate, has categorically held that the prosecution had not let in evidence to substantiate the charges, the objection of the learned Additional Government Pleader that the acquittal can be treated only as "benefit of doubt", is not accepted. 12. Though the learned Additional Government Pleader submitted that what is relevant, for entry into service, is conduct and character of an applicant and therefore, when the petitioner was involved in a criminal case, the rejection is justified, the said contention also cannot be countenanced, for the reason that as per Explanation 2 to Rule 14(b)(iv) of the Special Rules for the Tamil Nadu Police Subordinate Service, 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 https://hcservices.ecourts.gov.in/hcservices/ 8 in a criminal case. 13. The acquittal was on 06.01.2011 and that he has also not suppressed the fact of his involvement in the criminal case in the police verification. That apart, even before the finalization of the selection, and in particular, in the case on hand, before the verification well commenced, the petitioner has been acquitted on 06.01.2011. As such there is no impediment on the date of verification of the antecedents. There is no suppression of fact. In view of the above discussion, I am inclined to accept the submission of the learned counsel for the petitioner and hold that the petitioner has made out a case for issuance of a Writ and accordingly, held that the petitioner is entitled to the relief sought for. Hence, the impugned order, rejecting the case of the petitioner for the post of Grade-II Police Constable, is set aside. There shall be a direction to the respondents to appoint the petitioner as Grade-II Constable, within two weeks from the date of receipt of a copy of this order. 14. In the result, the Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar (RTI) /True Copy/ Sub Assistant Registrar(CS) To 1. The Director General of Police, Kamarajar Salai, Mylapore, Chennai 600 004. 2. The Chairman, Tamil Nadu Uniformed Service, Recruitment Board, No.807, P.T.Lee Chengalvaraya Naicker Maaligai, Anna Salai, Chennai 600 002. +1cc to Special Government Pleader, SR.No.24800 +1cc to Mr.S.Subbiah, Advocate, SR.No.24711 MPK/SKM GH : 09.08.2011 : 8p/5c W.P.(MD)No.7837 of 2011 25.07.2011 https://hcservices.ecourts.gov.in/hcservices/