CIVIL WRIT PETITION NO.2928 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.2928 of 2011 DATE OF DECISION: JULY 6, 2011 Phool Kumar ..Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R.K. Malik, Sr. Advocate, with Mr. Krishan K. Chahal, Advocate, for the petitioner. Mr. Sunil Nehra, Sr. DAG, Haryana, for the State. **** RANJIT SINGH, J. Being aggrieved against the action of the respondents in denying appointment to the post of Sub Inspector Police for which he was duly selected, the petitioner has approached this Court through the present writ petition. The petitioner would pray for issuing a writ order in nature of certiorari for quashing action of the respondents in declining him appointment after his due selection made. 1 CIVIL WRIT PETITION NO.2928 of 2011 Haryana Staff Selection Commission advertised 151 posts of Sub Inspector Police Haryana out of which 70 posts were meant for General Category. The petitioner being eligible had applied for appointment to the said post. The written examination was conducted and the petitioner appeared and was declared successful. Thereafter, he was called for physical test. The petitioner qualified in the physical test as well. The petitioner was called for interview on 1.7. 2009. Result of the interview was declared on 9.9.2010 and his name was reflected in the list of selected candidates in General Category. The petitioner was medically examined on 27.09.2010 and declared fit. On 14.11.2010, the petitioner learnt that the candidate lower in the merit were offered appointment but no such offer of appointment was made to him. The petitioner also learnt that his involvement in a criminal case of which he was acquitted was being held against him. The petitioner had been acquitted of a criminal charge against him on 16.7.2010. This was much prior to the selection. The petitioner would also claim that he had never concealed this information and had disclosed this fact of his acquittal in the relevant column of enrolment form. When the petitioner was not given offer of appointment, he has filed the present petition. The petitioner would rely upon instructions Annexure P-4 to contend that he could not be denied appointment once he had acquitted of the criminal charge leveled against him. Notice of motion was issued. Reply is filed by the State. By way of preliminary submission, it is stated that the writ 2 CIVIL WRIT PETITION NO.2928 of 2011 petition is not maintainable and is liable to be dismissed. It is, however, conceded that the petitioner was selected for the post of Sub Inspector by Haryana Staff Selection Commission and was recommended for appointment as temporary Sub Inspector on 20.9.2010. The petitioner was even allotted to Police Commissionerate, Gurgaon. The Director General of Police had also directed that the appointment letter be issued to the petitioner after completing all the formalities regarding verification of his character and antecedents and medical examination as per the Rules and Instructions. The character and antecedents verification of the petitioner was, accordingly, carried out through Superintendent of Police, Rohtak. S.P., however, intimated that the case FIR No.369 dated 20.7.2005 under Sections 365/34 IPC was registered against the petitioner. Stating that the acquittal was based on technical ground as he succeeded to win over the complainant and made him to refrain from appearing in Court as witness in support of this complaint. This led to acquittal of the petitioner on the basis of benefit of doubt. It is, accordingly, stated that the petitioner was not honourably acquitted. It is urged that there is, thus, a shadow of doubt on the character of the petitioner and he could not be allowed to join disciplined force which is to handle the law and order situation to keep piece in the society. It is further stated that the petitioner was accused of an offence involving moral turpitude and on the basis of Government instructions dated 6.3.1975, the petitioner was not appointed as Sub Inspector. By referring to instructions (Annexure P-4) of the Director General of Police, it is stated that those 3 CIVIL WRIT PETITION NO.2928 of 2011 candidates, who have faced charges of offences including moral turpitude, but are acquitted merely on technical ground by giving a benefit of doubt may not be appointed as Constable. Since the petitioner was acquitted of the criminal charge by giving him benefit of doubt, he would not be entitled to appointment. Reference is also made to some of the judgments passed by this Court in support of the stand taken in the reply. I have heard counsel for the parties. Mr. R.K. Malik would stress with emphasis that the petitioner having been acquitted of charge could not be put to any infirmity on the ground that he had faced some criminal prosecution. On the other hand, Mr. Nehra would insist that the petitioner cannot be appointed because of an offence for which he had faced trial was such which was involving moral turpitude. As per the State, the acquittal in such like cases would be a reason enough for the respondents to deny appointment. State counsel has referred to number of precedents. It is to be considered whether the action of the respondents in declining the appointment to the petitioner can be justified. In this regard, Mr. Malik has referred to Annexure P-4, which is the instructions issued by the Director General of Police for the allotment of Constabulary Numbers to the selected candidates for the post of constables. Mr. Nehra has also placed reliance on the same instructions in support of his submissions. Let us first examine these instructions to understand what will be the effect of these instructions on the facts in 4 CIVIL WRIT PETITION NO.2928 of 2011 the present case. After examining the matter, Director General has clarified that candidates, who were involved in criminal cases and stand acquitted at the time of declaration of selection may be considered for appointment as constable even if they had not disclosed the fact of their facing trial or the acquittal in column No.12. The instructions further provides that those candidates who have faced charges for offences involving moral turpitude but get acquitted on technical ground or on account of giving benefit of doubt may not be considered for appointment as constable. It is further stated that all cases of acquittal of charges involving moral turpitude should be minutely examined after careful appraisal of the judgments and such candidates who have been acquitted honourably may, however, be considered for appointment Constable. This later part of the instructions which is relied upon by Mr. Nehra to state that those candidates who have faced charges of moral turpitude but are acquitted merely on a technical ground or on account of giving benefit of doubt, are to be differently considered for appointment to the post of Constable. The reading of the instructions may not support the stand taken by the State counsel. No doubt, it is provided that the person who is acquitted of the charges involving moral turpitude may not be considered for appointment as constable, but in the later part of instructions, it is provided that the case of acquittal in charges of moral turpitude should be minutely examined after careful appraisal of the judgments and such candidates who have been acquitted may be considered for appointment as Constable. Obviously there is no 5 CIVIL WRIT PETITION NO.2928 of 2011 complete bar for appointment of such persons. Therefore, it is now to be analyzed if the acquittal of the petitioner would be such that he can be reasonably denied appointment after his acquittal in terms of the policy instructions or not. The judgment of acquittal has been placed on record with the writ petition as Annexure P-3. It cannot be disputed that the offence for which the petitioner was tried was such as involving moral turpitude. That being the position, it is now be seen in the light of the instructions issued by the DGP whether the petitioner had been acquitted honourably or if the acquittal of the petitioner was on technical ground for which he can be denied this appointment. The perusal of the judgment annexed with the petition would show that when a car was intercepted by the Inspector/SHO, Police Station civil Lines, Rohtak, the complainant was found sitting in between these persons. The driver of the car on inspection had made an attempt to run away from the place. The statement of the complainant was recorded leading to registration of FIR. Thereafter, investigation was conducted and the challan was prepared and presented. The defence projected by the petitioner was also noticed. As per the defence version Parvesh kumar was member of the society. In July, 2005, elections of the society were to take place. He was having car No.HR12F-3353, which was taken into custody by the Police for want of documents and was falsely implicated in the present case. The petitioner was acquitted on the ground that Amit , S/o Harpal, who was stated to have been wrongly confined, did not appear to support the prosecution case. The Court accordingly 6 CIVIL WRIT PETITION NO.2928 of 2011 found that the prosecution was unable to prove the charge beyond reasonable doubt and the matter ended in acquittal of the petitioner by giving him benefit of doubt. From this, Mr. Nehra would plead that under these circumstances, the acquittal cannot be termed as honourable acquittal to entitle or enable the petitioner to seek appointment under the provisions of the policy instructions. On the other hand, Mr. Malik would plead that it was a case of false implication and complainant thereafter rightly did not appear despite chances given to the prosecution and hence, this case was a case of honourable acquittal though generally it is so recorded by the Courts that the acquittal is due to benefit of doubt. Mr. Malik, accordingly, pleads that the case of the petitioner would be squarely covered by the instructions and it is not such a case where appointment could be denied. Counsel for the petitioner has also sough support from various judgments. He would first refer to Bhag Singh Versus Punjab & Sind Bank, 2006(1) SCt 175. The Court in this case has interpreted the term “benefit of doubt in criminal proceedings”. It is noticed that where the acquittal is for want of any evidence to prove the criminal charge, mere mention of ‘benefit of doubt’ by the criminal Court is superfluous and baseless. The Court has termed such acquittal an honourable acquittal. The counsel would next refer to Shashi Kumar Versus Uttri Haryana Bijli Vitran Nigram and another, 2005(1) RSJ 718. In this case also the Court was dealing with the term “honourable acquittal”. It is noticed that the moment the criminal charge fails in a court of law, person should be deemed 7 CIVIL WRIT PETITION NO.2928 of 2011 to be acquitted of the blame. Any other interpretation would defeat the very purpose of rule. It is futile to expect a finding of either honourable acquittal or complete innocence in a judgment of acquittal. The reference is also made to the Division Bench of Allahabad High Court in the case of Awadhesh Kumar Sharma Versus Union of India and others, 2000 LAB. I.C. 1885. This was a case where candidate was involved in criminal case under Section 307 IPC at the time of his selection to post advertised. Subsequently, he was acquitted of the criminal charge. The Court has observed that this would deem in law that in fact he was never involved in any criminal case. It is further observed that the judgment of a Court of law acquitting him to the criminal case operates retrospectively. The candidate in this case was allowed to join duty. In Commissioner of Police and others Versus Sandeep Kumar, 2011 (2) RSJ 502, a candidate was also involved in a criminal case under Sections 325/34 IPC. His candidature was cancelled because of the false statement made by him in the application form. The reason for which the candidate did not disclose this fact was that he had been acquitted later on the basis of a compromise. This has happened prior to his applying for the post. The respondents in this case had pleaded that the candidate should have disclosed the fact of his involvement in the criminal case even if he had been acquitted. This contention was repelled. The order of the High Court impugned before the Supreme Court holding the cancellation of candidature to be illegal, was upheld. Some very pertinent observations were made, which are to the effect that the youth often commit 8 CIVIL WRIT PETITION NO.2928 of 2011 indiscretions, which are often condoned. The offence which was committed by the respondent at the age of 20 years was not such an offence like murder, dacoity or rape and hence a more lenient view should be taken in the matter. It is observed that modern approach should be to reform a person instead of branding him as a criminal all his life. Similar consideration would arise in the present case as well. On the other hand, State counsel has placed strong reliance on Delhi Administration through its Chief Secretary Versus Sushil Kumar, 1997 (1) SCT 474. In this case the candidate was selected for recruitment as a Constable in Delhi Police. He was found to be physically fit. His selection was subject to verification of character and antecedents by the local police. On verification, it was found that he was involved in an offence under Section 304/324/34 IPC and his name was rejected. The candidate had impugned this order before the Tribunal, which had allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence, he cannot be denied the right of appointment to the post under the state. The Hon’ble Supreme Court has held that the view taken by Tribunal to be incorrect and allowed the appeal. What is observed in this case is that the view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Hon’ble Supreme Court observed that the Tribunal was wholly unjustified in giving directions for reconsideration of this case. It is further observed that though candidate was discharged or acquitted of the criminal offence, the same has nothing to do with the question. What would 9 CIVIL WRIT PETITION NO.2928 of 2011 be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, was found to be rightly focused on this aspect and had found it not desirable to appoint him to the service. This view has been followed by the Division Bench of this Court, which is also placed before me the case of Union of India Verus Avtar Singh, 2011 (2) SCT 800. In this case, the facts appear to be somewhat different. The Division Bench of this Court primarily found that there was a concealment of fact of criminal proceedings on the ground that the applicant was acquitted. It is observed that this will attract disqualifications and liability for removal from service. The view taken by the Single Judge was set aside and the order of termination was upheld and termination was held sustainable. Having considered these aspects, I am of the view that the ratio of law laid down in Delhi Administration’s case (supra), would not strictly apply to the facts of the present case. In the present case, the main consideration would be the interpretation of the policy instructions issued by the Director General of Police Haryana regarding the appointment in such like cases. The Hon’ble Supreme Court was dealing with the case of appointment generally. The instructions issued by the state of Haryana clearly make a provision for appointment of a person as a Constable even in those cases where one is acquitted of offence, involving moral 10 CIVIL WRIT PETITION NO.2928 of 2011 turpitude. The acquittal in such like cases has to be viewed and if it is found to be a honourable acquittal and then appointment of such persons can be made. Though in the present case, the Trial court had acquitted the petitioner by giving him a benefit of doubt, but that doubt was on account of lack of evidence. Once the allegation which was against the petitioner could not be established by evidence, it cannot be said that the acquittal would be on some technical ground. The complainant, who in fact had made a complaint did not come and support the prosecution version. The observation made by the Division Bench of this Court in the case of Bhag Singh (supra) and Shahsi Kumar (supra) can relevantly be noticed here. The acquittal in the criminal case for want of evidence is an acquittal on merit, though it may be referred to as acquitting by giving benefit of doubt. In fact, there is no provision for honourable acquittal in criminal trial. Criminal trial as per our jurisprudence is not a voyage for truth. In criminal trial, burden is on the prosecution to prove the case beyond reasonable doubt. Accused person can keep quiet and seek his acquittal on the ground that the prosecution has not been able to prove the case against him. How else one would earn an acquittal? Thus, criminal trial looks for proof and when the prosecution is unable to collect material, an accused is entitled to acquittal. Lack of evidence is a case of no evidence and hence, it can be said that such acquittal is on technical ground. A similar issue was considered by this Court in CWP No.15109 of 2008 (Tarun Kumar Versus State of Haryana and others) decided on 2.9.2009. While considering same very 11 CIVIL WRIT PETITION NO.2928 of 2011 instructions this Court observed as under:- “A perusal of instructions dated 2.7.2007 provides that cases of acquittal and charges of moral turpitude are to be minutely examined and after careful appraisal of the judgment those who are acquitted honourably are to be considered for appointment as constables. If the instructions are allowed to operate in this manner, as pleaded by the respondents, the difference between acquittal and conviction will loose significance. What good would be this acquittal to the petitioner if the allegations are still to be held against him. Once a person earned an acquittal after trial, it would not be fair to deny him appointment on the ground that he was accused of having committed an offence involving moral turpitude. He may be alleged to have committed this offence but it is proved that he has not been guilty of commission of any such offence. Upon acquittal, an honour of such a person accused of offence would stand vindicated. Can he still be put to disadvantage and the infirmity. Unfair operation of this approach and that of the instructions can easily be demonstrated by noticing that if such a person had been in the service, his conviction may have led to his dismissal and after acquittal, he was entitled to seek reinstatement, as per the Government instructions.” In fact, this issue had earlier been considered by thi Court in another writ petition No.2124 of 2009 (Parvesh Versus State of Haryana and others) decided on 20.8.2009, where it was observed as under:- “Is this action fair? What is then a difference 12 CIVIL WRIT PETITION NO.2928 of 2011 between conviction and acquittal if the effect is to be the same. As per instructions dated 3.2.2009 (Annexure R-1), the petitioner would appear eligible for appointment but still is struggling to get one. These instructions have been specifically issued for recruitment of 1940 male constables as can be seen from the subject heading of the instructions. As per the said instructions, if a candidate was acquitted before the date of appearance of the advertisement i.e. 23.8.2007, he is to be given an appointment if he fulfills all other mandatory requirements. Since the petitioner in this case was acquitted prior to issuance of this advertisement, he is eligible for appointment as per the instructions, dated 3.2.2009, Annexure R-1. The other part of the instructions in fact may not be attracted to the case of the petitioner. It appears that the petitioner has been denied appointment by invoking instructions issued by the D.G.P., dated 13.11.2007, which provides that such candidates who are acquitted on technical grounds in offences involving moral turpitude are not entitled for allotment of any constabulary number. These instructions have not been placed on record but have been perused by the Court. The relevant part thereof reads as under:- “This matter has been further examined and clarification conveyed vide this office letter referred to above is modified as under:- a) Candidates against whom cases are pending should be considered for allotment of Constabulary number except those who are facing investigation/trial or have been 13 CIVIL WRIT PETITION NO.2928 of 2011 convicted in offences, involving moral turpitude. b) The candidates acquitted on technical grounds in offences involving moral turpitude, shall also not be considered for allotment of constabulary number.” It is part (b) above of the instructions, which is being invoked against the petitioner. The instructions dated 13.11.2007 are in continuation of another communication/instructions dated 2.7.2007, relevant portion of which is as under:- “(a) Candidates who were involved in criminal cases and stand acquitted at the time of declaration of selection list may be considered for appointment as constable even if they had not disclosed the fact of their facing trial or acquittal in column No.12 of the application form. But those candidates who have faced charges of moral turpitude during their trial but got acquitted merely on technical grounds or on account of giving of benefit of doubt may not be considered for appointment as constable. In this regard, it is stated that all cases of acquittal in charges of moral turpitude should be minutely examined after careful appraisal of the judgments and such candidates who have been acquitted honourably may, however be considered for appointments as 14 CIVIL WRIT PETITION NO.2928 of 2011 constable. b) All those candidates who are facing trial for any criminal offence will not be considered for appointment as constable. c) Candidates who have been convicted for any criminal offence shall not be given appointment.” Having considered all these aspects of the instructions, this Court had held as under:- “Can then in the present scenario, he be denied appointment? There may be some sense in the submission that person who is known to be involved in a criminal case, should not be given appointment but the fact that he stands acquitted of this offence, can not altogether be ignored. The distinction between giving appointment to those persons who are acquitted of offences not involving moral turpitude and those who are acquitted of such offences involving moral turpitude may be a fine one but the fact of acquittal is the base which can not be ignored. Once a person has been acquitted of the allegation, then the offence alleged or the allegation made against him, can not be held against him any further. This infirmity must be removed in law and otherwise and can not be attached to the person like the petitioner merely on the basis of instructions which can not even be termed as administrative or executive instructions having been issued by either Head of the Department or some such functionaries. In my considered opinion, acquittal can not be given a different colour on the basis of some communication,