Allowed

J.Kasinathan v. the Director General of Police

Madras HC20 Aug 2013WP(MD)/9562/2011

Case brief

AI extract

What is this about?

The Madras High Court continued a prohibition on employing the petitioner as a Police Constable due to non-disclosure of criminal cases pending at the time of verification. Chief Justice held that acquittal constituted honourable acquittal, rendering the cases as not involving criminal activity, thus allowing appointment.

What did the court decide?

To quash the rejection order and direct the respondents to appoint the petitioner as Police Constable Gr.II for the 2009-2010 batch.

J.Kasinathan Vs the Director General of Police — Service and Employment | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 20.08.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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W.P.(MD)No.9562 of 2011

J.Kasinathan

... Petitioner

vs.

The Director General of Police Dr.Radhakrishnan Salai, Mylapore, Chennai.

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The Superintendent of Police Madurai District, Madurai. ... Respondents

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Writ petition filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus for the relief as sought for in the writ petition.

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For Petitioner ... Mr.S.Chellapandian For Respondents ... Mr.B.Pugalendhi, Spl.G.P.

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ORDER

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This writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of certiorarified mandamus, calling for the records pertaining to the impugned order, dated 29.06.2011 made in Na.Ka.No.193/029692/epakdk;1(2)/ 2011 on the file of the first respondent and quash the same and consequently, direct the respondents to appoint the petitioner as Police Constable Gr.II in the year 2009-10 batch.

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The petitioner herein was selected by the second respondent for the post of police constable Gr.II in the year 2009-10. After conducting physical fitness test on 05.10.2010, the petitioner was called for verification of the certificates on 03.12.2010 and was asked to fill up the conduct verification form, wherein a questionnaire was put to him regarding pendency of criminal cases. The petitioner submitted that two criminal cases were foisted against him in Cr.No.130 of 2009 under Sections 323 and 341 IPC and Cr.No.365 of 2009 under Sections 147, 148, 427 and 506 IPC respectively, by Usilampatti Town and Taluk police station.

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The allegation as per the Cr.No.130 of 2009 was that the petitioner along with accused No.1, way laided a college clerical staff and threatened him to immediately release the scholarship amount allotted https://hcservices.ecourts.gov.in/hcservices/ to him and his friend / A1 and the allegation in Cr.No.365 of 2009 was that due to water litigation, enmity arose between petitioner's family

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and the family of the defacto-complainant in the case. As per the complaint, the petitioner and his family members had allegedly tresspassed into the house of the defacto-complainant and scolded the defacto-complainant and his family members with filthy language and threatened them of dare consequences. In both the cases, charge sheets were laid down against the petitioner before the Judicial Magistrate, Usilampatti and the Judicial Magistrate, took cognizance of the matter in C.C.No.212 of 2009 and C.C.No.219 of 2009 respectively, conducted full fledged trial and acquitted the petitioner and his family members from all the charges on 02.11.2010 in C.C.No.219 of 2009. In C.C.No.212 of 2009, since the alleged offence was bailable and compoundable in nature, the Judicial Magistrate acquitted the petitioner, on the ground of compromise arrived at between the petitioner and the defacto-complainant on 03.11.2010 and no other criminal case was pending against the petitioner. However, the petitioner was denied appointment in view of the pendency of the aforesaid cases.

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It was communicated in the order of rejection, that the petitioner was not eligible for the post of Police Constable, Gr.II, as per the provisions of rules 14 (b) and 14 (b) (iv) of Tamil Nadu Special Police Service Rules, 1978, aggrieved by which, this writ petition has been filed.

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Learned counsel appearing for the petitioner submitted that only after conducting full trial, the petitioner was acquitted, as there was no evidence available against him and in the other case, since the alleged offence was compoundable in nature, the same was compounded by the parties. In the aforesaid circumstances, based on the pendency of the aforesaid cases, referring rules 14 (b) and 14 (b) (iv) of Tamil Nadu Special Police Service Rules, 1978, the respondents could not have denied appointment to the petitioner, which is against law, hence, the writ petition has been filed. According to the learned counsel for the petitioner, the rejection order passed by the respondents is not sustainable in law. In support of his contention, the learned counsel relied on the following decisions :

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Commr. of Police v. Sandeep Kumar, (2011) 4 SCC 644

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Manikandan v. Chairman, T.N. Uniformed Services Recruitment Board, 2008(2) CTC 97

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Per contra, learned Special Government Pleader appearing for the respondents submitted that while the petitioner was studying at Pasumpon Muthuramalinga Thevar college, Usilampatti, there was a wordy altercation between the petitioner and a clerical staff of the college with regard to the delayed disbursement of scholarship amount on 06.04.2010. Pursuant to the same, a complaint was given by the clerk, stating that the petitioner had waylaid him, abused and assaulted him, based on which, a criminal case was registered. The other case in Cr.No.365 of 2009 was registered under Sections 147, 148, 425 and 506 IPC, wherein the petitioner was arrayed as A3. As per the complaint given, the writ petitioner along with 7 others went to the house of the defacto-complainant and committed offence punishable under the aforesaid sections of the Indian Penal Code. However, the respondents have not disputed that both the cases were ended in acquittal in favour of the https://hcservices.ecourts.gov.in/hcservices/ petitioner herein.

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Learned counsel appearing for the petitioner submits that so far as the petitioner is concerned, it was a case foisted against him and there was no evidence adduced against him and no adverse remarks made against the petitioner by the Judicial Magistrate, while recording acquittal in favour of the petitioner. Hence, the respondents cannot reject the legitimate claim of the petitioner in getting the appointment of Police Constable, Gr.II, after the selection.

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Mr.B.Pugalendhi, learned Special Government Pleader has not disputed that the cases registered against the petitioner in C.C.No.212 of 2009 and C.C.No.219 of 2009 were ended in acquittal. However, it was argued that there was suppression of fact before the authorities, the respondents herein. Hence, as per rule 14 (b) (ii) & (iv) of Tamil Nadu Special Police Subordinate Service Rules (herein after referred to as the Rules), the petitioner was not eligible to be appointed to the service, by way of direct recruitment.

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As per rule 14 (b) (ii) & (iv) of the Rules, no person shall be eligible for appointment to the service by direct recruitment, unless he satisfied the appointing authority

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(iii) that his character and antecedents are such as to qualify him for such services.

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(iv) that he has not involved in any criminal case before police verification.

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Learned Special Government Pleader further submitted that as per the explanation No.1, a person who was acquitted or discharged on benefit of doubt or due to the fact that the defacto-complainant had turned hostile, be treated as a person involved in a criminal case and as per explanation No.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 for appointment only by participating in the next recruitment, for which, he relied on the averments made in para number 8 of the counter filed by the respondents.

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The respondents herein have stated that the petitioner did not disclose the fact of his involvement in the criminal case, neither in the application nor in the verification form, hence, his candidature for selection to the post of Gr.II PC could not be considered and accordingly, he was not given appointment.

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Learned counsel for the petitioner submitted that the aforesaid two cases were foisted against the petitioner, though he was an innocent person and he is nothing to do with the alleged offence. However, the petitioner has got honourable acquittal in one case and the other case was compoundable in nature, wherein the defacto-complainant himself has not pressed the case, hence, the same was compounded. Hence, both the cases were ended in acquittal. The explanations available in para number 8 of the counter shows that the person, who is acquitted or discharged on account of benefit of doubt or due to the fact that the complainant turned hostile, shall be treated as a person involved in a https://hcservices.ecourts.gov.in/hcservices/ criminal case. An accused could be discharged, based on benefit of doubt, after the trial and when there is no criminal charge made out against the

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accused, the Court is empowered to record discharge of the accused. Therefore, recording acquittal on the ground of benefit of doubt does not arise and if there is no prima facie case and for proceeding the case, if there is no ground available, the Court shall discharge the accused. When a criminal case is not supported by any evidence, the alleged offence is compoundable in nature or not pressed by the defacto-complainant, the same, has to be construed only as honourable acquittal, as there is no case made out or no prima facie evidence available against the accused. Hence, in the case of honourable acquittal, there could be no stigma against the petitioner.

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Learned counsel appearing for the petitioner submits that there was enmity between the petitioner's family and the family of the defacto-complainant, due to some water dispute and hence, the defactocomplainant had filed a complaint against the family members of the petitioner, including the petitioner, before Usilampatti Taluk police station, so as to attract Sections 147, 148, 427 and 506 IPC, on account of the same, the case was registered in Cr.No.365/2009 on the file of the said police station. It was argued that merely the petitioner was a member of the family, against whom the defacto-complainant lodged complaint, the petitioner was also wantonly arrayed as A3, apart from 7 other persons. The petitioner was arrayed as one of the accused, in view of the fact that he was also a member of the family against whom the complaint was given by the defacto-complainant, hence, it cannot be said that he had involved in a criminal case and not eligible to join in police service, after the case was compounded by both the parties.

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In Commr. of Police v. Sandeep Kumar, reported in (2011) 4 SCC 644 , it has been held by the Hon'ble Supreme Court that wherein respondent candidature for his promotion as Headconstable was cancelled, on the ground that he had concealed his involvement in criminal case under Sections 325 r/w 34 IPC, when he was aged about 20 years. It was further held by the Hon'ble Supreme Court as follows:

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"12. It is true that in the application form, the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably, he did not mention this out of fear that if he did so, he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter."

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In the printed application form, in Sl.No.12-a, it was stated as follows : Have you ever been arrested, prosecuted kept under detention or bound down / fined, convicted by a court of law for any offence, debarred / disqualified by any Public Service Commission from appearing at its examination / selection or debarred from any examination, rusticated by any university or any other education authority / institution. Against that column, the respondent, Sandeep Kumar therein, wrote "No".

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It was alleged by the authorities that the said answer "No" made by the respondent therein was false, as a criminal case was registered against the respondent therein and some of his family members stating that they were involved in a criminal case as FIR No.362, under Sections 325 read with 34 IPC. The said case was admittedly compromised https://hcservices.ecourts.gov.in/hcservices/ between the parties on 18.01.1998 and the respondent and his family members were acquitted on 18.01.1998, however, suppressing the fact, the

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respondent therein answered "No" in his statement. Hence, the Commissioner of Police, decided that the respondent therein was not eligible for consideration. However, the Hon'ble Apex Court has held that modern approach should be to reform a person, instead of branding him as a criminal throughout in his life and rendered the decision against the view of the Commissioner of Police and others, appellants therein and dismissed the appeal, confirming the order passed by the High Court, in favour of the police personnel.

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It is also relevant to refer the decision rendered by a Full Bench of this Court in Manikandan v. Chairman, T.N.Uniformed Services Recruitment Board , reported in 2008 (2) CTC 97 , wherein this Court held that failure by applicant to disclose his involvement in a criminal case at earliest point of time, when application was filled up would be incurable and fatal, in view of rule 14 (b), Explanation 1 and 2 of Tamil Nadu Special Police Subordinate Service Rules, 1978. It was further held that the applicant therein cannot cure it, by way of subsequent disclosure, as it will bring the case within ambit of Explanation 2 and he would ineligible for the current selection and for all future selections depending on whether acquittal is honourable or otherwise.

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It is not in dispute that the Full Bench of this Court in Manikandan v. Chairman, T.N.Uniformed Services Recruitment Board , reported in 2008 (2) CTC 97 has upheld rule 14 (b) of the Tamil Nadu Special Police Subordinate Service Rules valid, wherein the Full Bench has held as follows :

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"40. Therefore, in conclusion, we hold that the amended Rule 14(b) of the Special Rules for Tamil Nadu Police Subordinate Services is not ultra vires or unconstitutional. We also hold that the non selection of the writ petitioners or the rejection of their candidatures, by the respondents, either on the basis of their involvement in criminal case or on the basis of the suppression of their involvement, is perfectly valid and justified. In answer to the reference made to the Full Bench, we hold -

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(a) that by virtue of Explanation to Clause (iv) of Rule 14 (b) of the Tamil Nadu Special Police Subordinate Service Rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified; and

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(b) That the failure of a person to disclose in the Application form, either his involvement in a criminal case or the pendency of a criminal case against him, would entitle the Appointing Authority to reject his application on the ground of concealment of a material fact, irrespective of the ultimate outcome of the criminal case."

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As per explanation 1 to rule 14 (b) of the Rules, a person acquitted on the ground of benefit of doubt or discharged in a criminal case, that would still be considered as disqualified for the selection of the police service to the State. In the counter filed by the respondents, it is stated that a person, who is acquitted or discharged on benefit of doubt or due to the fact that the defacto-complainant turned hostile, https://hcservices.ecourts.gov.in/hcservices/ which shall be treated as a person involved in a criminal case. Explanation 2 reads that a person involved in a criminal case at the time of police verification and the case was yet to be disposed of and

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subsequently, ended in honourable acquittal or treated as mistake of fact, such candidate shall be treated as not involved in a criminal case and he can claim for appointment only by participating in the next recruitment.

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It is not in dispute that the petitioner has got honourable acquittal, since the case against the petitioner was not even supported by the defacto-complainant and other prosecution witness and hence, therefore, there is no stigma attached to the petitioner, who was arrayed as one of the accused. As per Explanation 2, the petitioner shall be treated as a person not involved in a criminal case, however, the explanation reads that such a person can claim for appointment only by participating in the next recruitment, which is not in dispute.

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In view of the Full Bench decision of this Court, referred to above, the petitioner herein cannot raise a plea that rule 14 (b) of the Rules is ultra vires and unconstitutional, as ultimately, the said provision of law was upheld by the Full Bench of this Court.

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As per the copy of the Judgment available in the typed set of papers, it is seen that C.C.No.212 of 2009 ended in acquittal on 02.11.2010 and C.C.No.219 of 2010 ended in acquittal on 03.11.2010. As the cases were ended in acquittal in favour of the petitioner, not based on the benefit of doubt given by the Court below, there is no stigma attached to the petitioner. Having gone through the findings of the Judicial Magistrate, in his Judgments, the same have to be construed only as honourable acquittal. Hence, in view of the Explanation 2, the same shall be treated as that the petitioner had not involved in any criminal case. Explanation 2 further reads that in such circumstance, such person can claim for appointment only by participating in the next recruitment.

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It cannot be disputed that Law is only the means and justice is the end. There are every possibilities to implicate any innocent person in a criminal case along with other accused, due to personal enmity of two groups. When there is honourable acquittal, there shall be no stigma attached to the person, for seeking Government appointment, on the ground that he was involved in a criminal case. Hence, a mechanical approach against a person, after the honourable acquittal, would not meet the ends of justice, in view of the landmark Judgment rendered by the Hon'ble Apex Court reported in (2011) 4 SCC 644 .

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In the instant case, verification of certificates was held on 03.12.2010, however, prior to the date, the petitioner got honourable acquittal and therefore, no stigma was attached to the petitioner. On 03.12.1010, the date of verification of certificates, admittedly, no criminal case was pending against the petitioner. On the aforesaid circumstances, to meet the ends of justice, it would not be proper to hold that he is eligible for participating only in the next recruitment, in view of Explanation 2.

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The decision rendered by the Hon'ble Supreme Court in Commr. of Police v. Sandeep Kumar reported in (2011) 4 SCC 644 , in a similar case, makes it clear that modern approach should be to reform a person https://hcservices.ecourts.gov.in/hcservices/ instead of branding him as a criminal for all his life, when there is honourable acquittal and no stigma is attached on the petitioner, prior

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to the date of verification of the certificates for the appointment.

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It cannot be disputed that as per Article 141 of the Constitution of India, any Judgment rendered or order passed by the Hon'ble Apex Court is binding on all Courts in the territory of India in its letter and spirit.

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Having considered the decision rendered by the Full Bench of this Court and the subsequent decision rendered by the Hon'ble Supreme Court reported in (2011) 4 SCC 644 , it is crystal clear that the petitioner is entitled to be appointed and his right cannot be denied on the ground that he had not disclosed the pendency of the two cases, that ended in honourable acquittal, prior to the verification of the certificates and accordingly, this writ petition has to be allowed.

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In the result, this writ petition is allowed and the impugned order passed by the first respondent, dated 29.06.2011 made in Na.Ka.No.193/029692/epakdk;1(2)/2011 is quashed and the respondents are directed to appoint the petitioner as police constable Gr.II for the year 2009-2010 Batch. He is ordered to be included as a last person in the Batch and he is also entitled to claim seniority. The direction in this writ petition shall be complied with by the respondents, within six weeks from the date of receipt of a copy of this order. No order as to costs.

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Tsvn Sd/Assistant Registrar[T&P]

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Sub Assistant Registrar

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