THE STATE OF RAJASTHAN & ORS. versus LOVE KUSH MEENA
[2021] 2 S.C.R. 1192, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
A
B
C
D
E
F
G
H
1192
SUPREME COURT REPORTS
[2021] 2 S.C.R.
THE STATE OF RAJASTHAN & ORS.
v.
LOVE KUSH MEENA
(Civil Appeal No. 3894 of 2020)
MARCH 24, 2021
[SANJAY KISHAN KAUL AND R. SUBHASH REDDY, JJ.]
Service Law: Appointment for post of constable –
Disqualification for appointment – Advertisement provided for
disqualification clause that only those candidates would be qualified
to appear who have not been convicted for offence of moral
turpitude, violent activities and not honourably acquitted by court
– Respondent-candidate was found ineligible since in a criminal
case under ss.302, 323, 341, 34 IPC, he was not acquitted
honourably but was acquitted on benefit of doubt – High Court
held in favour of respondent – Appeal by employer-State – Held:
The mere fact of an acquittal would not suffice but rather it would
depend on whether it was a clean acquittal based on total absence
of evidence or in the criminal jurisprudence requiring the case to
be proved beyond reasonable doubt, that parameter having not been
met, benefit of doubt has been granted to the accused – No doubt,
in that case, the person who ran the tractor over the deceased lady
was one of the other co-accused but the role assigned to the others
including the respondent was not of a mere bystander – The attack
with knives was alleged against all the other co-accused including
the respondent – During trial, a compromise was entered with
complainant in favour of accused persons under ss.341, 323 IPC –
However,
since no compromise was possible for offence under s.302,
trial continued – The prosecution witnesses having turned hostile,
prosecution failed to prove case against the accused persons beyond
reasonable doubt and accused were granted benefit of doubt
resulting in their acquittal – This cannot fall under the category of
a clean acquittal and the trial court was thus right in using the
terminology of benefit of doubt in respect of such acquittal – Thus,
respondent was rightly held not eligible to appointment – Penal
Code, 1860 – ss.302, 323, 341 – Criminal jurisprudence – Benefit
of doubt.
[2021] 2 S.C.R. 1192
1192
A
B
C
D
E
F
G
H
1193
Words and Phrases: Expression “honourable acquittal” –
Meaning of.
Allowing the appeal, the Court
HELD: This is a clear case where the endeavour was to
settle the dispute, albeit not with the job in mind. This is obvious
from the recital in the judgment of the Trial Court that the
compoundable offences were first compounded during trial but
since the offence under Section 302/34 IPC could not be
compounded, the Trial Court continued and qua those offences
the witnesses turned hostile. This cannot fall under the category
of a clean acquittal and the Judge was thus right in using the
terminology of benefit of doubt in respect of such acquittal.
[Para 24][1201-D-E]
Avtar Singh v. Union of India & Ors.(2016) 8 SCC
471:[2016] 7 SCR 445 – relied on.
Union Territory, Chandigarh Administration & Ors. v.
Pradeep Kumar & Anr. (2018) 1 SCC 797 : [2018] 1
SCR 112; Inspector General of Police v. S. Samuthiram
(2013) 1 SCC 598 : [2012] 11 SCR 174; State of
Madhya Pradesh & Ors. v. Abhijit Singh Pawar (2018)
18 SCC 733 : [2018] 13 SCR 1133; Commissioner of
Police v Mehar Singh (2013) 7 SCC 685:[2013]
13 SCR 432; Anil Bharadwaj v. High Court of Madhya
Pradesh & Ors. 2020 SCC Online SC 832; Joginder
Singh v. State (UT of Chandigarh & Ors. (2015) 2 SCC
377 : [2014] 11 SCR 155; Mohammed Imran v. State
of Maharashtra & Ors. 2019 (17)  SCC 696 – referred
to.
Case Law Reference
[2016] 7 SCR 445
relied on
Para 13
[2018] 1 SCR 112
referred to
Para 15
[2012] 11 SCR 174
referred
to
Para 15
[2018] 13 SCR 1133
referred to
Para 16
THE STATE OF RAJASTHAN v. LOVE KUSH MEENA
A
B
C
D
E
F
G
H
1194
SUPREME COURT REPORTS
[2021] 2 S.C.R.
[2013] 13 SCR 432
referred to
Para 16
[2014] 11 SCR 155
referred to
Para 18
2019 (17)  SCC 696
referred to
Para 19
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3894
of 2020
From the Judgment and Order dated 16.07.2019 of the High Court
of Judicature for Rajasthan at Jodhpur in Civil Special Appeal (Writ)
No. 373 of 2019.
Vidhan Vyas, Ms. Pragati Neekhra, Advs. for the Appellants.
Ms. Shobha Gupta, Ms. Medha Garg, Advs. for the Respondent
The Judgment of the Court was delivered by
SANJAY KISHAN KAUL, J.
1. The moot point which arises for consideration is whether a
benefit of doubt resulting in acquittal of the respondent in a case charged
under Sections 302, 323, 341/34 of the Indian Penal Code [IPC] can
create an opportunity for the respondent to join as a constable in the
Rajasthan Police service.
2. The respondent and three others were charged with the
aforesaid provisions of the Indian Penal Code and tried before the
Additional Sessions Judge (Fast Track), Laxman Garh, District Alwar,
Rajasthan. The incident relates to 6.10.2008 at about 6 p.m. when, as
per the complainant Babulal, one Jagdish and Dayaram came in a tractor
for tilling a disputed field in jungle Patan. Tofli, mausi of Babulal forbade
them to till the land and apparently stayed back in the field. At that time,
the tractor driver Jagdish drove the tractor and ran over Tofli. The
complainant Babulal along with one Raju, Om Prakash and Dinesh rushed
to her side but were beaten up and knife injuries were inflicted upon
them by Dayaram, Love Kush (respondent), Bodan and Jagdish. Tofli
was taken in a Buggi to the hospital where the doctor declared her
brought dead. On the basis of the said report, PS Khedli registered Case
No.255 of 2008 under Sections 302, 341, 323, 34 of the IPC and
commenced the investigation. Upon completion of the investigation, the
charge sheet against all the accused persons vide No.1/2009 was filed
in the Court of Judicial Magistrate, Kathumar from where it was
committed to the Court of the Additional Sessions Judge, Laxman Garh.
The charges were framed and all the accused denied the charges.
A
B
C
D
E
F
G
H
1195
3. It is relevant to note that during the trial injured persons, Babulal,
Om Prakash and Raju alias Rajesh obtained permission of the Court and
filed a compromise in favour of accused persons under Sections 341,323
of IPC which was approved but naturally, there could not have been any
compromise qua the offences under Section 302/34 IPC. In those charges
the trial continued and it is quite obvious that in view of the compromise,
all the prosecution witnesses, including those injured, turned hostile. On
the basis of the case of the prosecution, the learned Judge opined in
terms of the judgment dated 01.05.2009 that “the prosecution had failed
to prove the case against the accused persons beyond reasonable
doubt”.
4. A notification for recruitment of constable was issued on
14.07.2013 under the provisions contained in part III of the Rajasthan
Police Subordinate Service Regulations, 1989 for 12178 posts of constables
setting out the procedure for making the application. Para (ix) of the
advertisement provided for disqualification for appointment. The relevant
clause (ix) reads as under-
“(ix) As per judgment of Hon’ble Supreme Court in Civil Appeal
No.782/2004 State Government and others v. Mohd. Salim Dated
10.12.2009, Director General Police, Rajasthan Circular No.1687
dt.29.4.1995 is held legal. In compliance with the said judgment,
only those candidates shall be qualified to appear in recruitment
for Rajasthan police who- have not been convicted for
offence of
moral turpitude, violent activities and not honourably acquitted by
Court.”
5. The aforesaid would show that the disqualification would
operate qua conviction and “not honourably acquitted by Court” for
offences of moral turpitude and violent activities. The respondent herein
participated in the same and it appears was successful in the recruitment
process. However, a letter dated 04.08.2015 was issued to him on the
basis of character antecedent verifications carried out by the Police
Superintendent. District Alwar, Dy. Inspector General Police, Security,
Rajasthan, Jaipur, whereupon the aspect of the aforesaid case was looked
into (it is an accepted position that the respondent had disclosed this fact
and there was no concealment). The respondent was found not eligible
in view of the aforesaid. The operative portion reads as under:
“Due to serious criminal offence against you, police headquarter
in reference to circular No.1687 dated 29.4.1995 and also in
THE STATE OF RAJASTHAN v. LOVE KUSH MEENA
[SANJAY KISHAN KAUL, J.]
A
B
C
D
E
F
G
H
1196
SUPREME COURT REPORTS
[2021] 2 S.C.R.
compliance with the orders of Hon’ble Supreme Court in Civil
Appeal No.782/04, you are not being appointed as not found
eligible”.
6. The aforesaid order was assailed before the Rajasthan High
Court in S.B. Civil Writ Petition No.2391/2016 and the Writ Petition was
allowed in terms of the judgment dated 11.11.2016, remitting the matter
back to the respondent- Superintendent of Police, Udaipur for passing a
fresh appropriate order with regard to the candidature of the respondent
in accordance with law within a period of three months from the date of
receipt of the order and consequences would follow.
7. Accordingly, fresh orders were passed by the District Police
Superintendent, Udaipur on 23.05.2017. It was opined that the charges
against the respondent were not of a trivial nature but were serious
offences and the candidate was not acquitted by the Court honourably.
In view of the circular in question, once again the respondent was held
ineligible.
8. The second round began with assailing of the aforesaid order
dated 23.05.2017 in S.B. Civil Writ Petition No.8323/2017. In terms of
the order of the learned Single Judge dated 14.05.2018, it was opined
that the Court was not convinced that the authority had applied its mind
in accordance with the directions given by the Court vide order dated
11.11.2016. In this behalf, reliance was placed on a circular dated
28.03.2017 and it was found that the respondent is falling
in the first
category.
9. We may notice that the circular is undisputedly post the
recruitment process. Be that as it may, the relevant portion of the circular
reads as under:
“Subject: Regarding the candidates deprived of appointment due
to concealment of facts of criminal cases/being involved in criminal
cases.
xxx xxxxxxxxx
Only those candidates of the following category are found to be
eligible to be appointed, who have mentioned the criminal case in
the application form or character verification form (both or one of
them):-
1. Found not guilty of criminal case after investigation, Final/
closure Report submitted for approval.
A
B
C
D
E
F
G
H
1197
2. Acquitted by the Court (including by giving benefit of doubt or
want of evidence).
3. Acquitted/discharged on the basis of compromise.
4. Given benefit of Section 12 of the Probation of Offenders Act,
on conviction in certain sections (the conviction is not based on
any impunity/no adverse effect on state service/future life).
5. Convicted and given benefit of Section 15(1)(a) of Juvenile
Justice Act.”
10. It is the say of the learned counsel for the respondent that the
aforesaid circular is applicable and in terms of the said circular even
cases where the acquittal is by giving benefit of doubt would not disqualify
a candidate.
11. The appellant/State aggrieved by the aforesaid order preferred
an D.B.Special Appeal Writ No.373/2019 before the Division Bench.
The Division Bench opined that since no cogent evidence connecting
the accused person to commission of offence was found, the respondent
was not disentitled for appointment to the post of a constable,
notwithstanding his involvement in a criminal case. It further opined that
since the benefit of doubt was given to the respondent and that aspect
was considered in the earlier judgment of the learned single Judge dated
11.11.2016, the said aspect cannot be looked into. With this, the appeal
stood dismissed.
12. In the present appeal post issuance of notice, leave was granted
on 27.11.2020 and the interim order passed on 03.02.2020 staying the
operation of the impugned order was made absolute.
Learned counsel
for the parties have taken us through the aforesaid factual matrix as
already penned down by us. The question which arises is whether in the
aforesaid factual matrix and taking into consideration various judicial
pronouncements of this Court, would the respondent be disentitled to
appointment i.e. whether the subsequent speaking order passed by the
appellant authority dated 23.05.2017 is liable to be interfered with or not.
13. Learned counsel for the appellant has referred to the seminal
judgment in Avtar Singh v. Union of India & Ors.1 where a three
Judge Bench of this Court has in detail dealt with the aspects arising
from such cases and laid down various parameters. Conclusions are
summarized in para 38.
1 (2016) 8 SCC 471
THE STATE OF RAJASTHAN v. LOVE KUSH MEENA
[SANJAY KISHAN KAUL, J.]
A
B
C
D
E
F
G
H
1198
SUPREME COURT REPORTS
[2021] 2 S.C.R.
14. It would suffice to reproduce the relevant summarized
conclusion as under:
 “38.xxx xxx xxx
38.3. The employer shall take into consideration the government
orders/instructions/rules, applicable to the employee, at the time
of taking the decision.
38.4.3. If acquittal had already been recorded in a case involving
moral turpitude or offence of heinous/serious nature, on technical
ground and it is not a case of clean acquittal, or benefit of
reasonable doubt has been given, the employer may consider all
relevant facts available as to antecedents, and may take appropriate
decision as to the continuance of the employee.”
15. It is pointed out that various nuances arising in this judgment
has been considering even in the subsequent judgments. In Union
Territory, Chandigarh Administration & Ors. v. Pradeep Kumar &
Anr.2 a two Judge Bench of this Court dealt with the expression
“honourable acquittal”. It was opined that acquittal in a criminal case
was not conclusive for suitability of the candidate concerned and it could
not always be inferred from an acquittal or discharge that the person
was falsely involved or has no criminal antecedents. Thus, unless it is an
honourable acquittal, the candidate cannot claim the benefit of the case.
No doubt, it was mentioned by relying on the earlier judgment of this
Court in Inspector General of Police v. S. Samuthiram3 that while it
was difficult to define precisely what is meant
by the expression
“honourable acquittal”, an accused who is acquitted after full
consideration of the prosecution evidence and prosecution has miserably
failed to prove the charges levelled against the accused, it can possibly
be said that the accused was honourably acquitted. In this context, it has
been specifically noticed by this Court that entry into the police service
required a candidate to be of good character, integrity and clean
antecedents. Finally, it was opined that the acquittal in a criminal case
does not automatically entitle a candidate for appointment to the post, as
a person having criminal antecedents will not fit in this category.
16. In a similar factual scenario to the extent of recruitment to the
posts of Subedars, Platoon Commandants and Inspectors of Police in
2 (2018) 1 SCC 797
3 (2013) 1 SCC 598
A
B
C
D
E
F
G
H
1199
pursuance to an advertisement and disqualification of one of the
candidates being assailed resulted in a judgment of this Court in State of
Madhya Pradesh & Ors. v. Abhijit Singh Pawar4 by a two Judge
Bench. Suffice to say, in the factual context, a case registered in the
year 2006 was pending on the date when affidavit was tendered and
within four days the compromise was entered into between the original
complainant and the respondent. An application for compounding was
filed. The compounding was found to be permissible as it dealt with
offences under Sections 294, 325/34, 323, 506 Part II of the IPC and on
discussion of the legal principle enunciated in the earlier judgments, it
was opined that the earlier judgment in the case of Commissioner of
Police v Mehar Singh5 it was opined that there is no doubt about the
proposition that even after the disclosure is made by a candidate, the
employer would be well within his rights to consider the antecedent and
suitability of the candidate. In this context, it was held, the employer is
entitled to take into account the job profile for which the selection is
undertaken, the severity of the charge levelled against the candidate and
whether acquittal in question was an honourable acquittal or was merely
on the ground of benefit of doubt as a result of composition. We may
also add that one aspect which was noticed which is common with the
present case is the absence of any suggestion that the decision was
actuated
by malafide or suffered on other accounts except the issue
raised of the subsequent circular applicable.
17. A reference was also made to Anil Bharadwaj v. High Court
of Madhya Pradesh & Ors.6 where once again a two Judge Bench of
this Court found that a criminal case against the candidate under Sections
498A, 406, 34 of the IPC was pending consideration on a complaint filed
by the wife and thus, the rejection of candidature could not be said to be
unsustainable. While saying so, the Court also opined that the plea that
the deletion of the name would result in stigma against the candidate
was not sustainable since the candidate already stood acquitted.
18. On the other hand, learned counsel for the respondent sought
to distinguish some of the judgments on the factual matrix while also
referring to certain other pronouncements. In this behalf, she referred to
the judgment in Inspector General of Police v. S. Samuthiram (supra)
4 (2018) 18 SCC 733
5 (2013) 7 SCC 685
6 2020 SCC Online SC 832
THE STATE OF RAJASTHAN v. LOVE KUSH MEENA
[SANJAY KISHAN KAUL, J.]
A
B
C
D
E
F
G
H
1200
SUPREME COURT REPORTS
[2021] 2 S.C.R.
expounding as to what is meant by “honourable acquittal” in para 24
to contend that it is difficult to define precisely what is meant by the
expression “honourable acquittal”. Counsel also sought to make a
reference to a judgment in Joginder Singh v. State (UT of Chandigarh
& Ors.)7. The charges against the candidate in this case were under
Sections 148, 149, 323, 325 and 307 of IPC where it was held by the
Trial Court that the prosecution had miserably failed to prove charges
levelled against him since the complainant as well as injured eyewitnesses
failed to identify the assailants. It was opined to be a case of honourable
acquittal and thus, relief was granted to the candidate.
19. The respondent also referred to a judgment of this Court in
Mohammed Imran v. State of Maharashtra & Ors.8 decided on
12.10.2018 where the candidate had been charged under Sections 363,
366, 34, IPC much prior to the clearance of examination. In that context,
it was observed that since employment opportunity were a scarce
commodity in our country, with large numbers of aspirants applying, there
could not be any mechanical or rhetorical incantation of moral turpitude
to deny appointment in judicial service simplicitor but much would depend
on the facts of a case.
20. In the instant case the aspect of there being a time lapse
between the alleged offence and the recruitment process was
emphasised to contend that the respondent herein was
about 19 years of
age when the incident occurred and had now carried his life further by
being successful in a competitive examination some years down the
line.
21. A reference was also made in the counter affidavit to certain
judgments of the Rajasthan High Court granting relief to the candidates
based on acquittal obtained on benefit of doubt.
22. Lastly, a reference was made of an order passed by this Court
in SLP[C]No.15351/2020 dated 21.01.2020 wherein an SLP was
dismissed against a direction for appointment of a candidate where the
order was giving benefit of doubt to the candidates in a criminal case.
We may, however, note that firstly, that this is an order and not a judgment
and secondly, it has been clearly stated that the dismissal was “in the
given facts and circumstances of the case”.
7 (2015) 2 SCC 377
8 Civil Appeal No.10571/2018
A
B
C
D
E
F
G
H
1201
23. Examining the controversy in the present case in the
conspectus of the aforesaid legal position, what is important to note is
the fact that the view of this Court has depended on the nature of offence
charged and the result of the same. The mere fact of an acquittal would
not suffice but rather it would depend on whether it is a clean acquittal
based on total absence of evidence or in the criminal jurisprudence
requiring the case to be proved beyond reasonable doubt, that parameter
having not been met, benefit of doubt has been granted to the accused.
No doubt, in that facts of the present case, the person who ran the
tractor over the deceased lady was one of the other co-accused but the
role assigned to the others including the respondent herein was not of a
mere bystander or being present at site. The attack with knives was
alleged against all the other co-accused including the respondent.
24. We may also notice this is a clear case where the endeavour
was to settle the dispute, albeit not with the job in mind. This is obvious
from the recital in the judgment of the Trial Court that the compoundable
offences were first compounded during trial but since the offence under
Section 302/34 IPC could not be compounded, the Trial Court continued
and qua those offences the witnesses turned hostile. We are of the
view that this can hardly fall under the category of a clean acquittal and
the Judge was thus right in using the terminology of benefit of doubt
in
respect of such acquittal.
25. The judgment in Avtar Singh’s case (supra) on the relevant
parameter extracted aforesaid clearly stipulates that where in respect
of a heinous or serious nature of crime the acquittal is based on a benefit
of reasonable doubt, that cannot make the candidate eligible.
26. We may also note the submission of learned counsel for the
respondent that as per para 38.3 in Avtar Singh’s case (supra), the
employer has to take into consideration the Government orders/
instructions/rules applicable to the employee at the time of taking a
decision. It is her say that the issue whether the circular dated 28.03.2017
would apply or not was res integra in view of the earlier order of the
learned Judge dated 14.05.2018. She has further contended that, in any
case, the circular had come into force and as per the judgment in Avtar
Singh’s case (supra) para 38.4, it is the date of decision which is material
and as on the date of decision dated 23.05.2017, the said circular was
applicable.
THE STATE OF RAJASTHAN v. LOVE KUSH MEENA
[SANJAY KISHAN KAUL, J.]
A
B
C
D
E
F
G
H
1202
SUPREME COURT REPORTS
[2021] 2 S.C.R.
27. We may note here that the circular dated 28.03.2017 is
undoubtedly very wide in its application. It seeks to give the benefit to
candidates including those acquitted by the Court by giving benefit of
doubt. However, such circular has to be read in the context of the judicial
pronouncements and when this Court has repeatedly opined that giving
benefit of doubt would not entitle candidate for appointment, despite the
circular, the impugned decision of the competent authority dated
23.05.2017 cannot be said to suffer from infirmity as being in violation of
the circular when it is in conformity with the law laid down by this Court.
28. We are, thus, of the view that the impugned orders cannot be
sustained and the appellants are well within their rights to have issued
the order dated 23.05.2017.
29. The consequence is that the appeal is allowed and the impugned
judgment of the Division Bench dated 16.07.2019 and learned Single
Judge dated 14.05.2018 are set aside leaving the parties to bear their
own costs.
Devika Gujral
Appeal allowed.