IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16574 of 2009 1. RAJ KUMAR SINGH S/O SHRI KRISHNA SINGH, R/O AT=P.O- BAGOURA, P.S-DAROUNDA, DISTT- SIWAN Versus 1. THE STATE OF BIHAR 2. DIRECTOR GENERAL OF POLICE, BIHAR, OLD SECRETARIAT, PATNA 3. DY. INSPECTOR GENERAL OF POLICE (PERSONNEL AND ADMINISTRATION), OLD SECRETARIAT, BIHAR, PATNA 4. DY. INSPECTOR GENERAL OF POLICE, null SARAN AT CHHAPRA, BIHAR 5. SUPERINTENDENT OF POLICE, SIWAN, BIHAR 6. SUB-INSPECTOR OF POLICE, DUROUNDA POLICE STATION, SIWAN, BIHAR ----------- For the Petitioner:- Mr. Chandra Shekher, Sr. Adv. Mr. Mukul Prasad, Adv. For the State:- Mr. Ritesh Kumar, A.C. to A.A.G. I --------------------- 2. 18.1.2010 Heard learned counsel for the petitioner and the State. The petitioner was an applicant for the post of Sub Inspector of Police under advertisement published in the year 2004. He competed successfully in the selection test and was called for medical and character verification on 11-12/02/2009, when he was inter alia required to fill up a character verification form. Against Column-7, answering the query if he was an accused in any case or had suffered imprisonment, he stated “No”. His police verification however stated to the contrary that he had been convicted by the lower Court which had been set aside by this Court. The impugned order dated 5.10.2009 has then followed that he had concealed the fact of his being charge sheeted and therefore was not entitled to be considered for appointment as he had furnished wrong 2 information. Learned counsel for the petitioner submits that the conviction of the petitioner was in a village dispute with regard to crop cutting under Sections 379 and 411 of the Penal Code on 17.12.2005. The police report dated 22.3.2009 states that the petitioner was always in possession of the lands and even today he was in possession of the lands. The sentence awarded was set aside by this Court on 24.11.2008 in Criminal Revision No. 978 of 2008 and he was directed to be released under the Probation of Offenders Act (hereinafter called the Probation Act) to be kept under watch for one year. The duration of the same was to expire on 24.11.2009. The police report dated 22.3.2009 with regard to the character of the petitioner confirms that his behavior has not been unbecoming in any manner during the period of probation. Reliance is further placed on Section12 of the Probation Act to urge that his release on probation under the aforesaid Act cannot be considered as a disqualification for appointment. Learned counsel for the State urges that the order of conviction has been confirmed in the Criminal Revision application and it was the sentence which was set aside and substituted by one under the Probation of Offenders Act. It appears from the facts that the petitioner has not made any misrepresentation in his original application pursuant to which he came to be selected and was required to undergo 3 medical examination along with character verification. The petitioner was released on probation under Section 4 of the Probation Act on 24.11.2008 upon execution of a bond to keep peace and good behavior in lieu of sentence awarded to him. Section 12 of the Probation Act states that a person found guilty of an offence and dealt with under Section 4 shall not suffer disqualification attaching to a conviction of an offence under such law. The statement of objects and reasons of the aforesaid act states that the purpose is to reform persons to enable them to become useful members of the society. There is substance in the submission made on behalf of the petitioner that on the date that he filled up the character verification form, he was under a bona fide belief that in view of the fact that his release under the Probation Act did not operate as a disqualification for appointment, given the objects of the Probation Act, he was not required to make such disclosure. Thought the Court may not ipso facto absolve the petitioner of his duty to make the disclosure in column 7 of the form, yet it finds it difficult in the nature of the facts and circumstances to reject his defence of a bona fide error in a mistaken belief and not any intention of concealment or fraud. Counsel for the State urges that the period of probation had not run out on the date that the petitioner failed to furnish the information. The petitioner is not alleged to be a hardened 4 criminal involved in serious crimes with more than one case against him. He was involved in an offence under Sections 379 and 411 of the Penal Code, in a village land dispute when the police report itself states that he was in possession of the lands and even today he is in possession of the lands in question and that there have been no complaint with regard to his conduct during the period of probation. In A.I.R. 2008 SC 1083 (State of Harayana & Ors. Vs. Dinesh Kumar), the issue related to appointment in the Harayana police as constable drivers. A similar clause with regard to arrest and conviction was answered by the candidate in the negative. The candidate was sought to be denied appointment for furnishing wrong information. The fact of the matter was that he had appeared before the Magistrate and had been enlarged on bail when he came to be ultimately acquitted in trial. The Supreme Court held dealing with the words „arrest‟ and „custody‟ that the moment the candidate appeared before the Magistrate physically and was enlarged on bail he had made a wrong declaration in the character verification form strictly speaking. Even while setting aside the High Court order the Supreme Court at Paragraph 29 of the judgment held that it would not be unreasonable to except a layman to construe that he had never been arrested on his appearing before the Court and being granted bail immediately. The position may have been different had he 5 been not released on bail. The Court gave the benefit of a mistaken impression in the mind of the candidate than that of deliberate and willful misrepresentation and concealment of facts. The Court on the facts of the case is satisfied to hold that in view of Section 12 of the Probation Act that his release thereunder was not a disqualification for his appointment the petitioner acted in a bona fide mistaken belief that it was not necessary for him to make the said disclosure. It cannot be said that the petitioner acted with a deliberate intent to mislead or conceal and obtain an illegal benefit. The order dated 5.10.2009 is set aside. The matter is remanded to the authorities to re-consider the candidature of the petitioner in light of the aforesaid discussion and to take a fresh decision, by a reasoned and speaking order, within a maximum period of three months from the date of receipt/production of a copy of this order. The application stands allowed. P. Kumar (Navin Sinha, J.)