THE STATE OF RAJASTHAN & ORS. versus LOVE KUSH MEENA on 24 March 2021

1. The moot point which arises for consideration is whether abenefit of doubt resulting in acquittal of the respondent in a case chargedDunder Sections 302, 323, 341/34 of the Indian Penal Code [IPC] cancreate an opportunity for the respondent to join as a constable in theRajasthan Police service.

2. The respondent and three others were charged with theaforesaid provisions of the Indian Penal Code and tried before theEAdditional Sessions Judge (Fast Track), Laxman Garh, District Alwar,Rajasthan. The incident relates to 6.10.2008 at about 6 p.m. when, asper the complainant Babulal, one Jagdish and Dayaram came in a tractorfor tilling a disputed field in jungle Patan. Tofli, mausi of Babulal forbadethem to till the land and apparently stayed back in the field. At that time,Fthe tractor driver Jagdish drove the tractor and ran over Tofli. Thecomplainant Babulal along with one Raju, Om Prakash and Dinesh rushedto her side but were beaten up and knife injuries were inflicted uponthem by Dayaram, Love Kush (respondent), Bodan and Jagdish. Tofliwas taken in a Buggi to the hospital where the doctor declared herbrought dead. On the basis of the said report, PS Khedli registered CaseGNo.255 of 2008 under Sections 302, 341, 323, 34 of the IPC andcommenced the investigation. Upon completion of the investigation, thecharge sheet against all the accused persons vide No.1/2009 was filedin the Court of Judicial Magistrate, Kathumar from where it wascommitted to the Court of the Additional Sessions Judge, Laxman Garh.The charges were framed and all the accused denied the charges.H

3. It is relevant to note that during the trial injured persons, Babulal,Om Prakash and Raju alias Rajesh obtained permission of the Court andfiled a compromise in favour of accused persons under Sections 341,323of IPC which was approved but naturally, there could not have been anycompromise qua the offences under Section 302/34 IPC. In those chargesthe trial continued and it is quite obvious that in view of the compromise,all the prosecution witnesses, including those injured, turned hostile. Onthe basis of the case of the prosecution, the learned Judge opined interms of the judgment dated 01.05.2009 that “the prosecution had failedto prove the case against the accused persons beyond reasonabledoubt”.

4. A notification for recruitment of constable was issued on14.07.2013 under the provisions contained in part III of the RajasthanPolice Subordinate Service Regulations, 1989 for 12178 posts of constablessetting out the procedure for making the application. Para (ix) of theadvertisement provided for disqualification for appointment. The relevantclause (ix) reads as under- “(ix) As per judgment of Hon’ble Supreme Court in Civil AppealNo.782/2004 State Government and others v. Mohd. Salim Dated10.12.2009, Director General Police, Rajasthan Circular No.1687dt.29.4.1995 is held legal. In compliance with the said judgment,only those candidates shall be qualified to appear in recruitmentfor Rajasthan police who- have not been convicted for offence ofmoral turpitude, violent activities and not honourably acquitted byCourt.”

5. The aforesaid would show that the disqualification wouldoperate qua conviction and “not honourably acquitted by Court” foroffences of moral turpitude and violent activities. The respondent hereinparticipated in the same and it appears was successful in the recruitmentprocess. However, a letter dated 04.08.2015 was issued to him on thebasis of character antecedent verifications carried out by the PoliceSuperintendent. District Alwar, Dy. Inspector General Police, Security,Rajasthan, Jaipur, whereupon the aspect of the aforesaid case was lookedinto (it is an accepted position that the respondent had disclosed this factand there was no concealment). The respondent was found not eligiblein view of the aforesaid. The operative portion reads as under:

“Due to serious criminal offence against you, police headquarterin reference to circular No.1687 dated 29.4.1995 and also in A

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1196SUPREME COURT REPORTS

Acompliance with the orders of Hon’ble Supreme Court in CivilAppeal No.782/04, you are not being appointed as not foundeligible”.

6. The aforesaid order was assailed before the Rajasthan HighCourt in S.B. Civil Writ Petition No.2391/2016 and the Writ Petition wasBallowed in terms of the judgment dated 11.11.2016, remitting the matterback to the respondent- Superintendent of Police, Udaipur for passing afresh appropriate order with regard to the candidature of the respondentin accordance with law within a period of three months from the date ofreceipt of the order and consequences would follow.

C7. Accordingly, fresh orders were passed by the District PoliceSuperintendent, Udaipur on 23.05.2017. It was opined that the chargesagainst the respondent were not of a trivial nature but were seriousoffences and the candidate was not acquitted by the Court honourably.In view of the circular in question, once again the respondent was heldineligible.D

8. The second round began with assailing of the aforesaid orderdated 23.05.2017 in S.B. Civil Writ Petition No.8323/2017. In terms ofthe order of the learned Single Judge dated 14.05.2018, it was opinedthat the Court was not convinced that the authority had applied its mindin accordance with the directions given by the Court vide order datedE11.11.2016. In this behalf, reliance was placed on a circular dated28.03.2017 and it was found that the respondent is falling in the firstcategory.

9. We may notice that the circular is undisputedly post therecruitment process. Be that as it may, the relevant portion of the circularFreads as under:

“Subject: Regarding the candidates deprived of appointment dueto concealment of facts of criminal cases/being involved in criminalcases.

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GOnly those candidates of the following category are found to beeligible to be appointed, who have mentioned the criminal case inthe application form or character verification form (both or one ofthem):-

1. Found not guilty of criminal case after investigation, Final/Hclosure Report submitted for approval.

2. Acquitted by the Court (including by giving benefit of doubt orwant 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 onany impunity/no adverse effect on state service/future life).

5. Convicted and given benefit of Section 15(1)(a) of JuvenileJustice Act.”

10. It is the say of the learned counsel for the respondent that theaforesaid circular is applicable and in terms of the said circular evencases where the acquittal is by giving benefit of doubt would not disqualifya candidate.

11. The appellant/State aggrieved by the aforesaid order preferredan D.B.Special Appeal Writ No.373/2019 before the Division Bench.The Division Bench opined that since no cogent evidence connectingthe accused person to commission of offence was found, the respondentwas not disentitled for appointment to the post of a constable,notwithstanding his involvement in a criminal case. It further opined thatsince the benefit of doubt was given to the respondent and that aspectwas considered in the earlier judgment of the learned single Judge dated11.11.2016, the said aspect cannot be looked into. With this, the appealstood dismissed.

12. In the present appeal post issuance of notice, leave was grantedon 27.11.2020 and the interim order passed on 03.02.2020 staying theoperation of the impugned order was made absolute. Learned counselfor the parties have taken us through the aforesaid factual matrix asalready penned down by us. The question which arises is whether in theaforesaid factual matrix and taking into consideration various judicialpronouncements of this Court, would the respondent be disentitled toappointment i.e. whether the subsequent speaking order passed by theappellant authority dated 23.05.2017 is liable to be interfered with or not.

13. Learned counsel for the appellant has referred to the seminaljudgment in Avtar Singh v. Union of India & Ors.[1]where a threeJudge Bench of this Court has in detail dealt with the aspects arisingfrom such cases and laid down various parameters. Conclusions aresummarized in para 38.

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A14. It would suffice to reproduce the relevant summarizedconclusion as under:

“38.xxx xxx xxx

38.3. The employer shall take into consideration the governmentorders/instructions/rules, applicable to the employee, at the timeBof taking the decision.

38.4.3. If acquittal had already been recorded in a case involvingmoral turpitude or offence of heinous/serious nature, on technicalground and it is not a case of clean acquittal, or benefit ofreasonable doubt has been given, the employer may consider allCrelevant facts available as to antecedents, and may take appropriatedecision as to the continuance of the employee.”

15. It is pointed out that various nuances arising in this judgmenthas been considering even in the subsequent judgments. In UnionTerritory, Chandigarh Administration & Ors. v. Pradeep Kumar &DAnr.[2] a two Judge Bench of this Court dealt with the expression“honourable acquittal”. It was opined that acquittal in a criminal casewas not conclusive for suitability of the candidate concerned and it couldnot always be inferred from an acquittal or discharge that the personwas falsely involved or has no criminal antecedents. Thus, unless it is anEhonourable acquittal, the candidate cannot claim the benefit of the case.No doubt, it was mentioned by relying on the earlier judgment of thisCourt in Inspector General of Police v. S. Samuthiram[3] that while itwas difficult to define precisely what is meant by the expression“honourable acquittal”, an accused who is acquitted after fullconsideration of the prosecution evidence and prosecution has miserablyFfailed to prove the charges levelled against the accused, it can possiblybe said that the accused was honourably acquitted. In this context, it hasbeen specifically noticed by this Court that entry into the police servicerequired a candidate to be of good character, integrity and cleanantecedents. Finally, it was opined that the acquittal in a criminal caseGdoes not automatically entitle a candidate for appointment to the post, asa person having criminal antecedents will not fit in this category.

16. In a similar factual scenario to the extent of recruitment to theposts of Subedars, Platoon Commandants and Inspectors of Police in 2 (2018) 1 SCC 797H3 (2013) 1 SCC 598

pursuance to an advertisement and disqualification of one of thecandidates being assailed resulted in a judgment of this Court in State ofMadhya Pradesh & Ors. v. Abhijit Singh Pawar[4] by a two JudgeBench. Suffice to say, in the factual context, a case registered in theyear 2006 was pending on the date when affidavit was tendered andwithin four days the compromise was entered into between the originalcomplainant and the respondent. An application for compounding wasfiled. The compounding was found to be permissible as it dealt withoffences under Sections 294, 325/34, 323, 506 Part II of the IPC and ondiscussion of the legal principle enunciated in the earlier judgments, itwas opined that the earlier judgment in the case of Commissioner ofPolice v Mehar Singh[5] it was opined that there is no doubt about theproposition that even after the disclosure is made by a candidate, theemployer would be well within his rights to consider the antecedent andsuitability of the candidate. In this context, it was held, the employer isentitled to take into account the job profile for which the selection isundertaken, the severity of the charge levelled against the candidate andwhether acquittal in question was an honourable acquittal or was merelyon the ground of benefit of doubt as a result of composition. We mayalso add that one aspect which was noticed which is common with thepresent case is the absence of any suggestion that the decision wasactuated by malafide or suffered on other accounts except the issueraised of the subsequent circular applicable.

17. A reference was also made to Anil Bharadwaj v. High Courtof Madhya Pradesh & Ors.[6] where once again a two Judge Bench ofthis Court found that a criminal case against the candidate under Sections498A, 406, 34 of the IPC was pending consideration on a complaint filedby the wife and thus, the rejection of candidature could not be said to beunsustainable. While saying so, the Court also opined that the plea thatthe deletion of the name would result in stigma against the candidatewas not sustainable since the candidate already stood acquitted.

18. On the other hand, learned counsel for the respondent soughtto distinguish some of the judgments on the factual matrix while alsoreferring to certain other pronouncements. In this behalf, she referred tothe judgment in Inspector General of Police v. S. Samuthiram (supra)

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Aexpounding as to what is meant by “honourable acquittal” in para 24to contend that it is difficult to define precisely what is meant by theexpression “honourable acquittal”. Counsel also sought to make areference to a judgment in Joginder Singh v. State (UT of Chandigarh& Ors.)[7]. The charges against the candidate in this case were underSections 148, 149, 323, 325 and 307 of IPC where it was held by theBTrial Court that the prosecution had miserably failed to prove chargeslevelled against him since the complainant as well as injured eyewitnessesfailed to identify the assailants. It was opined to be a case of honourableacquittal and thus, relief was granted to the candidate.

19. The respondent also referred to a judgment of this Court inCMohammed Imran v. State of Maharashtra & Ors.[8] decided on12.10.2018 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 scarcecommodity in our country, with large numbers of aspirants applying, thereDcould not be any mechanical or rhetorical incantation of moral turpitudeto deny appointment in judicial service simplicitor but much would dependon the facts of a case.

20. In the instant case the aspect of there being a time lapsebetween the alleged offence and the recruitment process wasEemphasised to contend that the respondent herein was about 19 years ofage when the incident occurred and had now carried his life further bybeing successful in a competitive examination some years down theline.

21. A reference was also made in the counter affidavit to certainFjudgments of the Rajasthan High Court granting relief to the candidatesbased on acquittal obtained on benefit of doubt.

22. Lastly, a reference was made of an order passed by this Courtin SLP[C]No.15351/2020 dated 21.01.2020 wherein an SLP wasdismissed against a direction for appointment of a candidate where theGorder 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 judgmentand secondly, it has been clearly stated that the dismissal was “in thegiven facts and circumstances of the case”.

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23. Examining the controversy in the present case in theconspectus of the aforesaid legal position, what is important to note isthe fact that the view of this Court has depended on the nature of offencecharged and the result of the same. The mere fact of an acquittal wouldnot suffice but rather it would depend on whether it is a clean acquittalbased on total absence of evidence or in the criminal jurisprudencerequiring the case to be proved beyond reasonable doubt, that parameterhaving 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 thetractor over the deceased lady was one of the other co-accused but therole assigned to the others including the respondent herein was not of amere bystander or being present at site. The attack with knives wasalleged against all the other co-accused including the respondent.

24. We may also notice this is a clear case where the endeavourwas to settle the dispute, albeit not with the job in mind. This is obviousfrom the recital in the judgment of the Trial Court that the compoundableoffences were first compounded during trial but since the offence underSection 302/34 IPC could not be compounded, the Trial Court continuedand qua those offences the witnesses turned hostile. We are of theview that this can hardly fall under the category of a clean acquittal andthe Judge was thus right in using the terminology of benefit of doubt inrespect of such acquittal.

25. The judgment in Avtar Singh’s case (supra) on the relevantparameter extracted aforesaid clearly stipulates that where in respectof a heinous or serious nature of crime the acquittal is based on a benefitof reasonable doubt, that cannot make the candidate eligible.

26. We may also note the submission of learned counsel for therespondent that as per para 38.3 in Avtar Singh’s case (supra), theemployer has to take into consideration the Government orders/instructions/rules applicable to the employee at the time of taking adecision. It is her say that the issue whether the circular dated 28.03.2017would apply or not was res integra in view of the earlier order of thelearned Judge dated 14.05.2018. She has further contended that, in anycase, the circular had come into force and as per the judgment in AvtarSingh’s case (supra) para 38.4, it is the date of decision which is materialand as on the date of decision dated 23.05.2017, the said circular wasapplicable.

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A27. We may note here that the circular dated 28.03.2017 isundoubtedly very wide in its application. It seeks to give the benefit tocandidates including those acquitted by the Court by giving benefit ofdoubt. However, such circular has to be read in the context of the judicialpronouncements and when this Court has repeatedly opined that givingbenefit of doubt would not entitle candidate for appointment, despite theBcircular, the impugned decision of the competent authority dated23.05.2017 cannot be said to suffer from infirmity as being in violation ofthe 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 besustained and the appellants are well within their rights to have issuedCthe order dated 23.05.2017.

29. The consequence is that the appeal is allowed and the impugnedjudgment of the Division Bench dated 16.07.2019 and learned SingleJudge dated 14.05.2018 are set aside leaving the parties to bear theirown costs.

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Devika Gujral

Appeal allowed.

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