IMTIYAZ AHMAD MALLA versus THE STATE OF JAMMU AND KASHMIR AND OTHERS on 28 February 2023

[2023] 3 S.C.R. 165

IMTIYAZ AHMAD MALLA

v.

THE STATE OF JAMMU AND KASHMIR AND OTHERS

(Special Leave Petition (Civil) No. 678 of 2021)

FEBRUARY 28, 2023

[AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]

Service Law: Reinstatement – Petitioner issued appointmentletter for the post of constable in the Jammu and Kashmir ExecutivePolice – He suppressed the information with regard to his involvementin the criminal case – In view thereof, his appointment ordercancelled – Later, the petitioner acquitted in the criminal casepending against him – High Court set aside the cancellation order– Respondent directed to take further action – On reconsideration,the Director General of Police in view of the criminal backgroundof the petitioner, found him unsuitable for the post – Writ petitionby the petitioner seeking reinstatement – However, the Single Benchas well as the Division Bench upheld the decision of the DirectorGeneral of Police – On appeal, held : Mere acquittal in a criminalcase does not entitle an employee to the reinstatement in service –In the police force there is a requirement of integrity and highstandard of conduct – Courts below rightly held that the DirectorGeneral being the highest functionary in the police hierarchy, wasthe best judge to consider the suitability of the petitioner forinduction into the police force – Thus, no illegality and infirmity inthe impugned order being just and proper – No interference calledfor in exercise of its jurisdiction u/Art. 136 – Constitution of India– Art. 136 – Ranbir Penal Code – s. 379 – Forest Act – s. 6 .

Constitution of India: Art. 136 – Special and extraordinarypower under – Scope of – Held: To be exercised in rare andexceptional cases.

Words and Phrases:”Honourable acquittal” – Meaning of.

Union Territory, Chandigarh Administration And Othersvs. Pradeep Kumar And Another (2018) 1 SCC 797 :[2018] 1 SCR 112; Commissioner of Police, New Delhiand Another vs. Mehar Singh (2013) 7 SCC 685 : [2013]

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A13 SCR 432; Management of Reserve Bank of India,New Delhi vs. Bhopal Singh Panchal (1994) 1 SCC541 : [1993] 3 Suppl. SCR 586; R. P. Kapur vs. Unionof India and Another AIR 1964 SC 787 : [1964] SCR431; Avtar Singh Vs. Union of India and Others (2016)8 SCC 471 : [2016] 7 SCR 445 – referred to.B

Case Law Reference

CIVIL APPELLATE JURISDICTION : Special Leave Petition(C) No.678 of 2021.D

From the Judgment and Order dated 09.08.2019 of the High Courtof Jammu & Kashmir and Ladakh at Srinagar in LPASW No.71 of2018.

Vikram Hegde, Chitwan Sharma, Advs. for the Petitioner.

EShailesh Madiyal, Parth Awasthi, Vaibhav Sabharwal, AkshayKumar, Advs. for the Respondents.

The Judgment of the Court was delivered by BELA M. TRIVEDI, J.

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F1. The instant special leave petition is directed against theJudgment and Order dated 09.08.2019 passed by the High Court ofJammu and Kashmir at Srinagar in LPASW No. 71 of 2018, wherebythe High Court has dismissed the appeal filed by the petitioner-appellantand confirmed the order dated 14.05.2018 passed by the Single Benchdismissing the SWP No. 1766 of 2017.G

2. Briefly stated, the petitioner had successfully participated inthe selection process conducted in 2008-2009 for the post of constablein theJammu and Kashmir Executive Police, and he was issued anappointment letter dated 20.08.2009. The petitioner thereafter wasdeputed to the Police Training School, Manigam for undergoing the nine H

months BRTC course. It appears that thereafter the search slips of theten newly recruited constables including the petitioner, were sent to theDirector, Finger Print Bureau (CPPB) and NCRB East, New Delhi, forrecord and reference purpose, and the said Bureau vide the letter dated07.12.2009 responded that the petitioner was involved in a case registeredas FIR No. 52/2007 under Section 379 of Ranbir Penal Code (RPC) andSection 6 of Forest Act, at the Police Station, Kralgund. The said casewas stated to be pending before the Chief Judicial Magistrate, Handwara.The matter was taken up with the Deputy Inspector General of Police,NKR, Baramulla, by the Police District Headquarter, Handwara, forcancellation of the selection of the petitioner. During the course ofinquiry,a summary of allegations and charge-sheet were served to thepetitioner. It was alleged that in the said criminal case, the petitioner wasreleased on bail after four days of his arrest,and therefore the petitionerhad good knowledge of his involvement in the criminal case and that hehad consciously concealed the said information. It was also found duringthe course of inquiry that the petitioner had shown his residence at villageGundchobotra instead of Pakhribal in order to get a clean chit at the timeof police verification. Under the circumstances, the appointment orderdated 20.08.2009 of the petitioner was cancelled by the order dated01.03.2010.

3. The petitioner challenged the said order of cancellation of hisappointment by filing the writ petition being SWP No. 2616 of 2011 inthe High Court. In the meantime, the petitioner was tried and acquittedin the criminal case by the Court of Chief Judicial Magistrate, Handwaravide the Judgment dated 26.04.2011. The said petition therefore came tobe disposed of vide the order dated 18.05.2016 whereby the impugnedorder dated 01.03.2010 was set aside by the High Court. It was directedto the concerned respondent to take further action in view of thecommunication dated 27.02.2012 which in respect of the other personssimilarly situated as the petitioner. On the reconsideration, the DirectorGeneral of Police, Jammu and Kashmir, Srinagar, passed the order dated31.07.2017 stating inter alia that in view of the criminal background ofthe petitioner, he was found unsuitable for the post of constable in thedisciplined force.

4. Being aggrieved by the said order dated 31.07.2017, the petitionerfiled the writ petition being SWP No. 1766 of 2017 seeking reinstatementwith consequential benefits. The said writ petition came to be dismissed AB

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Aby the Single Bench vide the judgment and order dated 14.05.2018,whereby the Single Bench placing reliance on the decision of UnionTerritory, Chandigarh Administration And Others Vs. PradeepKumar And Another[1], held that the decision of the Director General ofPolice, the highest functionary in the hierarchy of police department, toconsider the suitability of the appellant for induction into police force,Bcould not be called into question. The aggrieved petitioner therefore filedthe LPA, which came to be dismissed by the Division Bench vide theimpugned order.

5. Though the matter was argued at length by the learned counselsfor the parties, the precise question that falls for consideration beforeCthis Court is whether the Director General of Police, Jammu & Kashmir,Srinagar, who after examining the record of the petitioner had come tothe conclusion that the petitioner was not a fit person to hold the postinto the police force in view of his criminal background, could be compelledto reinstate the petitioner on his acquittal in the criminal case.D6. It was sought to be submitted by the learned counsel for thepetitioner that in the criminal trial proceeded against the petitioner, theprosecution had failed to examine the investigating officer and also failedto bringhome the charges levelled against him, and therefore his acquittalin the said case was required to be treated as an honorable acquittal. HeEfurther submitted that the very basis for presuming that the petitionerhad a criminal background was no more available to the respondents, onhis having been acquitted by the competent criminal court.

7. In order to appreciate the said submission made by the learnedcounsel for the petitioner, it would be relevant to reproduce the relevantFpart of the judgment dated 26.04.2011 passed by the Court of ChiefJudicial Magistrate, Handwara, whereby the petitioner was acquittedfrom the charges levelled against him.

“That the I.O. has not been produced and examined which islegal infirmity in the prosecution case as material contradictionsGhave not been answered nor the site plan has been proved. Further,the seizure of timber has not been proved by the witnesses. Noneof witnesses has deposed that accused committed theft in theforest and willow trees were found in possession of the accusedpersons. On the basis of contradictory evidence accused cannot IMTIYAZ AHMAD MALLA v. THE STATE OF JAMMU ANDKASHMIR AND OTHERS [BELA M. TRIVEDI, J.]

be convicted, as benefit of doubt goes to the accused. Prosecutionhas miserably failed to fulfill the ingredients of section 379 RPC,6 F.Act against the accused persons. So, prosecution case fails.Challan is dismissed. Accused are acquitted of the charges forthe commission of offence under section 379 RPC 6 F.Act.Accused are on bail. Their bail bonds and personal bonds standdischarged. Since the confiscation proceedings were initiated bythe Forest department, timber has been disposed of. Challan beconsigned to records after due completion.”

8. Apart from the fact that the phrase “honourable acquittal” hasnot been defined anywhere in the Criminal Procedure Code, as transpiringfrom the afore-stated order passed in the criminal case for which thepetitioner was tried, the petitioner was afforded a benefit of doubt inview of the contradictory evidence which had come on record, also asthe investigating officer was not examined by the prosecution.

9. In case of Commissioner of Police, New Delhi and AnotherVs. Mehar Singh[2], this Court on similar issues as involved in the presentcase observed as under:

“25. The expression “honourable acquittal” was consideredby this Court in S. Samuthiram [Inspector General ofPolice v. S. Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC (Cri)566 : (2013) 1 SCC (L&S) 229] . In that case this Court wasconcerned with a situation where disciplinary proceedings wereinitiated against a police officer. Criminal case was pending againsthim under Section 509 IPC and under Section 4 of the Eve-TeasingAct. He was acquitted in that case because of the non-examinationof key witnesses. There was a serious flaw in the conduct of thecriminal case. Two material witnesses turned hostile. Referringto the judgment of this Court in RBI v. Bhopal SinghPanchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26ATC 619] , where in somewhat similar fact situation, this Courtupheld a bank’s action of refusing to reinstate an employee inservice on the ground that in the criminal case he was acquittedby giving him benefit of doubt and, therefore, it was not anhonourable acquittal, this Court held that the High Court was notjustified in setting aside the punishment imposed in the departmentalproceedings. This Court observed that the expressions AB

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SUPREME COURT REPORTS

A“honourable acquittal”, “acquitted of blame” and “fullyexonerated” are unknown to the Criminal Procedure Code orthe Penal Code. They are coined by judicial pronouncements. Itis difficult to define what is meant by the expression “honourablyacquitted”. This Court expressed that when the accused isacquitted after full consideration of the prosecution case and theBprosecution miserably fails to prove the charges levelled againstthe accused, it can possibly be said that the accused was honourablyacquitted.

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26. In light of the above, we are of the opinion that since thepurpose of the departmental proceedings is to keep persons, whoCare guilty of serious misconduct or dereliction of duty or who areguilty of grave cases of moral turpitude, out of the department, iffound necessary, because they pollute the department, surely theabove principles will apply with more vigour at the point of entryof a person in the police department i.e. at the time of recruitment.DIf it is found by the Screening Committee that the person againstwhom a serious case involving moral turpitude is registered isdischarged on technical grounds or is acquitted of the same charge,but the acquittal is not honourable, the Screening Committee wouldbe entitled to cancel his candidature. Stricter norms need to beapplied while appointing persons in a disciplinary force becauseEpublic interest is involved in it.”10. It was further observed therein that if the ScreeningCommittee’s decision was not mala fide or actuated by extraneousconsiderations, then the same could not be questioned.

“35. The police force is a disciplined force. It shoulders the greatFresponsibility of maintaining law and order and public order in thesociety. People repose great faith and confidence in it. It must beworthy of that confidence. A candidate wishing to join the policeforce must be a person of utmost rectitude. He must haveimpeccable character and integrity. A person having criminalantecedents will not fit in this category. Even if he is acquitted orGdischarged in the criminal case, that acquittal or discharge orderwill have to be examined to see whether he has been completelyexonerated in the case because even a possibility of his taking tothe life of crimes poses a threat to the discipline of the policeforce. The Standing Order, therefore, has entrusted the task ofHtaking decisions in these matters to the Screening Committee.

IMTIYAZ AHMAD MALLA v. THE STATE OF JAMMU ANDKASHMIR AND OTHERS [BELA M. TRIVEDI, J.]

The decision of the Screening Committee must be taken as finalunless it is mala fide. In recent times, the image of the policeforce is tarnished. Instances of police personnel behaving in awayward manner by misusing power are in public domain andare a matter of concern. The reputation of the police force hastaken a beating. In such a situation, we would not like to dilute theimportance and efficacy of a mechanism like the ScreeningCommittee created by the Delhi Police to ensure that personswho are likely to erode its credibility do not enter the police force.At the same time, the Screening Committee must be alive to theimportance of the trust reposed in it and must treat all candidateswith an even hand.

36. The Screening Committee’s proceedings have been assailedas being arbitrary, unguided and unfettered. But, in the presentcases, we see no evidence of this. However, certain instanceshave been pointed out where allegedly persons involved in seriousoffences have been recommended for appointment by theScreening Committee. It is well settled that to such cases thedoctrine of equality enshrined in Article 14 of the Constitution ofIndia is not attracted. This doctrine does not envisage negativeequality (Fuljit Kaur [Fuljit Kaur v. State of Punjab, (2010) 11SCC 455] ). It is not meant to perpetuate illegality or fraud becauseit embodies a positive concept. If the Screening Committee whichis constituted to carry out the object of the comprehensive policyto ensure that people with doubtful background do not enter thepolice force, deviates from the policy, makes exception and allowsentry of undesirable persons, it is undoubtedly guilty of committingan act of grave disservice to the police force but we cannot allowthat illegality to be perpetuated by allowing the respondents torely on such cases. It is for the Commissioner of Police, Delhi toexamine whether the Screening Committee has compromised theinterest of the police force in any case and to take remedial actionif he finds that it has done so. Public interest demands an in-depthexamination of this allegation at the highest level. Perhaps, suchdeviations from the policy are responsible for the spurt in policeexcesses. We expect the Commissioner of Police, Delhi to lookinto the matter and if there is substance in the allegations to takenecessary steps forthwith so that policy incorporated in the StandingOrder is strictly implemented.”

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A11. The expression “honourable acquittal” had also come up forconsideration in other cases namely, Management of Reserve Bank ofIndia, New Delhi Vs. Bhopal Singh Panchal[3]; and in R.P. Kapur Vs.Union of India and Another[4] whereby it was held interalia that themere acquittal does not entitle an employee to the reinstatement inservice.The acquittal, it was held, has to be honourable. As such, theBexpressions “honourable acquittal”,”acquitted of blame”, “fullyexonerated” are unknown to the Code of Criminal Procedure or thePenal Code, and it is difficult to define precisely what is meant byexpressions “honourable acquittal”.

12. In PradeepKumar’s case (supra) also it was reiterated thatCif a person is acquitted or discharged, it cannot obviously be inferred thathe was falsely involved, or he had no criminal antecedents. The preciseobservations made therein are re-produced hereunder:

“10. The acquittal in a criminal case is not conclusive of thesuitability of the candidates in the post concerned. If a person isDacquitted or discharged, it cannot always be inferred that he wasfalsely involved or he had no criminal antecedents. Unless it is anhonourable acquittal, the candidate cannot claim the benefit ofthe case. What is honourable acquittal, was considered by thisCourt in Inspector General of Police v. S. SamuthiramE[Inspector General of Police v. S. Samuthiram, (2013) 1 SCC598 : (2013) 1 SCC (Cri) 566 : (2013) 1 SCC (L&S) 229] , inwhich this Court held as under: (SCC p. 609, para 24)

“24. The meaning of the expression “honourable acquittal” cameup for consideration before this Court in RBI v. BhopalSinghFPanchal [RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541 :1994 SCC (L&S) 594] . In that case, this Court has consideredthe impact of Regulation 46(4) dealing with honourable acquittalby a criminal court on the disciplinary proceedings. In that context,this Court held that the mere acquittal does not entitle an employeeto reinstatement in service, the acquittal, it was held, has to beGhonourable. The expressions “honourable acquittal”, “acquittedof blame”, “fully exonerated” are unknown to the Code of CriminalProcedure or the Penal Code, which are coined by judicialpronouncements. It is difficult to define precisely what is meant 3(1994) 1 SCC 5414AIR 1964 SC 787H

by the expression “honourably acquitted”. When the accused isacquitted after full consideration of prosecution evidence and thatthe prosecution had miserably failed to prove the charges levelledagainst the accused, it can possibly be said that the accused washonourably acquitted.”

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13. It is thus well settled that acquittal in a criminal case does notautomatically entitle him for appointment to the post. Still, it isopen to the employer to consider the antecedents and examinewhether he is suitable for appointment to the post. From theobservations of this Court in Mehar Singh [Commr. ofPolice v. Mehar Singh, (2013) 7 SCC 685 : (2013) 3 SCC (Cri)669 : (2013) 2 SCC (L&S) 910] and Parvez Khan [State ofM.P. v. Parvez Khan, (2015) 2 SCC 591 : (2015) 1 SCC (L&S)544] cases, it is clear that a candidate to be recruited to the policeservice must be of impeccable character and integrity. A personhaving criminal antecedents will not fit in this category. Even if heis acquitted or discharged, it cannot be presumed that he washonourably acquitted/completely exonerated. The decision of theScreening Committee must be taken as final unless it is shown tobe mala fide. The Screening Committee also must be alive to theimportance of the trust reposed in it and must examine the candidatewith utmost character.”

13. As regards the suppression of relevant information or falseinformation with regard to the criminal prosecution, arrest or pendencyof criminal case against the candidate, a three-judge Bench of this Courtin Avtar Singh Vs. Union of India and Others[5] has laid down theprecise guidelines. Para 38.5 thereof reads as under:

“38.5. In a case where the employee has made declarationtruthfully of a concluded criminal case, the employer still has theright to consider antecedents, and cannot be compelled to appointthe candidate.”

14. In all the above cases, the requirement of integrity and highstandard of conduct in police force has been highly emphasised. The A

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AHigh Court in the impugned judgement has also elaborately dealt witheach andevery aspect of the issues involved, while upholding the orderofthe Single Bench to the effect that the Director General being the highestfunctionary in the police hierarchy, was the best judge to consider thesuitability of the petitioner for induction into the police force. The impugnedorder being just and proper, we are not inclined to interfere with theBsame in exercise of our jurisdiction under Article 136 of the Constitutionof India.

15. It is well settled position of law that though the scope of Article136 of Constitution of India is very wide, the power conferred thereunderbeing a very special and extraordinary power, it has to be exercised inCrare and exceptional cases. Since, we do not find any infirmity or illegalityin the impugned order passed by the High Court, the present petitiondeserves to be dismissed and is accordingly dismissed.

Nidhi Jain

D(Assisted by : Bhavyata Kapoor and Tamana, LCRAs)

SLP dismissed.

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