Delhi High Court

Commissioner Of Police vs Sunil Chandra on 3 September, 2012

Author: Siddharth Mridul

               THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment reserved on   : 31.07.2012
                                           Judgment pronounced on : 03.09.2012

+       W.P.(C) 4490/2012

COMMISSIONER OF POLICE                                ... Petitioner


                                         versus


SUNIL CHANDRA                                         ... Respondent

Advocates who appeared in this case:
For the Petitioners          : Mr V.K. Tandon
For the Respondent           : Mr Ajesh Luthra


CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                       JUDGMENT

SIDDHARTH MRIDUL, J.

1. The instant writ petition assails the order dated 07.03.2012 rendered

by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A.

No.3548/2011. By the said order dated 07.03.2012 the Tribunal allowed the

application of the respondent herein thereby directing the petitioner herein to

consider the respondent for appointment to the post of SI (Exe.) Male in

Delhi Police.

2. Pursuant to an advertisement published by Delhi Police in the year

2009, respondent Sunil Chandra had applied for the post of SI (Exe.) Male

against SC category. The respondent was provisionally selected for the said

post subject to verification of his character, antecedents and medical fitness

etc.

3. It is an admitted position that the respondent while filling the

application form as well as the attestation form had disclosed about his

alleged involvement in a criminal case registered vide FIR No.345/1999

under Sections 392/394/34 of the Indian Penal Code, 1860 (hereinafter

referred to as the IPC). The allegations which resulted in registration of the

said FIR stated that on 05.04.1999 one Praveen @ Bittoo along with the

respondent committed robbery of `500/- and some papers from the

complainant Vijay Malik and also caused him hurt during the commission of

such robbery.

4. Since the respondent had disclosed about his alleged involvement in a

criminal case while applying for the post of SI (Exe.) Male in Delhi police,

his case was duly forwarded to the Screening Committee for evaluating his

suitability for the said appointment. The Screening Committee found the

respondent unsuitable for appointment to the post in view of his alleged

involvement in the criminal case, despite the fact that the respondent had

been acquitted of the criminal charges by the Court concerned.

5. In view of the decision arrived at by the Screening Committee, the

petitioner herein issued a Show Cause Notice dated 25.04.2011 asking the

respondent to explain as to why his candidature to the post be not cancelled.

The respondent vide reply dated 06.05.2011 stated before the petitioner

herein that the former had not suppressed any material facts regarding his

alleged involvement in a criminal case. The respondent further submitted

that he was falsely implicated in the said FIR and had no active role to play

in commission of the crime. The respondent also stated that the criminal

case was pending against him for a period of 10 years for the reason that the

prosecution could not even produce the complainant before the Trial Court.

The respondent further stated that he had been acquitted of all the criminal

charges by the concerned Trial Court by virtue of judgment dated

07.09.2010.

6. Not satisfied by the reply of the respondent, the Deputy

Commissioner, Delhi Police rejected the same and, consequently, cancelled

the candidature of the respondent by an order dated 16.06.2011 with

immediate effect. It is relevant to note here that the concerned authority

cancelled the candidature of the respondent solely on the fact that the name

of the respondent had figured in the FIR No.345/1999 which related to

commission of robbery and the fact that the respondent was prosecuted for

the same. In fact the order cancelling the candidature of the respondent

specifies that the respondent was allegedly involved in criminal case

registered under Sections 394/411/34 IPC, whereas the judgment dated

07.09.2010, by virtue of which the respondent was acquitted, shows clearly

that the respondent was being prosecuted under Sections 392/394/34 IPC and

the charge of receiving stolen property, that is, Section 411 IPC was not even

levelled against him.

7. It is pertinent to observe here that there was no independent enquiry or

any other material before the concerned authority on the basis of which the

cancellation had been made. The relevant portion of the order dated

16.06.2011 is reproduced below:-

"The plea(s) put forth in the reply to Show Cause Notice have been considered in detail and found that the candidate was involved in a serious crime of robbery. He was caught almost red handed by the efforts of police and recovery was also effected from him. The Hon'ble Court of law has also

mentioned the testimony of the Sub-Inspector in the court of law regarding recovery of looted money/ documents from the accused persons. However, he was acquitted giving benefit of doubt, since the main complainant himself turned hostile. This is not a honourable acquittal and there was enough material on record to show that the candidate had played an active role in committing robbery........"

8. Aggrieved by the order dated 16.06.2011, the respondent approached

the Tribunal.

9. Before the Tribunal, the respondent submitted that the criminal case

pertaining to FIR No.345/1999 remained pending against him for a period of

10 years and that the prosecution despite availing several opportunities had

failed to produce the complainant to depose before the concerned Trial

Court. It was further stated that due to protracted pendency of the criminal

case, the respondent had approached the High Court under Section 482 of

the Criminal Procedure Code seeking quashing of the criminal case.

Consequently, the High Court vide order dated 03.08.2010 had issued a

direction to the prosecution to produce the complainant or close their

evidence. Thereafter, the complainant was produced before the concerned

Trial Court, but did not support the case of the prosecution, inasmuch as, he

denied remembering anything about the incident. Consequently, the

respondent was granted acquittal by virtue of judgment dated 07.09.2009

passed by the Metropolitan Magistrate. It is relevant to note that the Trial

Court after conducting a full-fledged trial, that is, after examining all the

witnesses produced by the prosecution came to the conclusion that the

respondent was not guilty.

10. The Tribunal vide impugned order dated 07.03.2012 directed the

concerned authority to reconsider the respondent for appointment to the post

of SI (Exe.) Male in Delhi Police and thereby quashed the order cancelling

the candidature of the respondent.

11. The petitioner has urged before us that in view of the alleged

involvement of the respondent in the criminal case, his candidature to the

post of SI (Exe.) Male has been rightly cancelled by the department.

12. In the present case, the Tribunal noted that Section 394 of the IPC

makes voluntarily causing hurt in committing robbery punishable with

imprisonment for life, or with rigorous imprisonment for a term which may

extend to 10 years. Section 411 of the said Code makes dishonestly

receiving stolen property an offence punishable with imprisonment up to 3

years. The Tribunal further observed that insofar as Section 394 is

concerned, it is indeed a serious offence, but the very label of the Section

could not be decisive. The facts constituting the offence, in their view, had

necessarily to be examined. The Tribunal, after perusing the records and the

judgment of the Trial Court dated 07.09.2010, acquitting the respondent,

stated that it shows that the respondent was put to trial along with one

Praveen @ Bittoo under Section 392/394/34 IPC. Section 392 makes

robbery punishable with 10 years imprisonment. The Tribunal stated that if,

however, the robbery is committed on the highway between sunset and

sunrise, the imprisonment may be extended to 14 years. The Tribunal,

however, noted that the allegations against the respondent and his co-

accused, briefly stated, were that on 05.04.1999 at about 10.00 a.m. at

District Park, Road No.30, Paschim Vihar, Delhi, Praveen @ Bittoo and the

respondent committed robbery of `500/- and some papers of complainant

Vijay Malik, and also caused hurt to the complainant. The Tribunal finally

noted that a firm finding had been recorded by the Trial Court, and the

prosecution could not establish the guilt of the applicant, even after

examination of the complainant and the other witnesses. It observed that the

complainant had himself stated that he could not remember anything about

the case and, therefore, the very foundation and the entire structure of the

prosecution case crumbled and nothing survives. The proceedings in the

criminal case clearly demonstrated that no witnesses were examined even to

prove that there was any injury on the person of the complainant and no

doctor, who might have, if at all, conducted the medico legal examination on

the complainant, was examined. Therefore, the Tribunal concluded that

even if, therefore, one was to go by the facts as given by the prosecution,

case under Section 394 IPC was not made out at all. Furthermore, the

Tribunal observed that insofar as the case under Section 392 was concerned,

the allegations was that the money had been recovered from pocket of the

trouser worn by Praveen @ Bittoo, the co-accused of the respondent and not

the respondent. Lastly, the Tribunal considered the fact that the respondent

was only 19 years of age at the time of the alleged commission of crime.

13. In Commissioner of Police and Others v. Sandeep Kumar : (2011) 4

SCC 644 the respondent had applied for the post of Head Constable

(Ministerial) in 1999. The respondent had already been acquitted on

18.01.1998, pursuant to his compromise with the injured in the case which

was registered against the former under Section 325/34 IPC. The Supreme

Court made the following observation:-

"8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the Respondent must have been about 20 years of age. At that age young people often commit indiscretions,

and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives."

...........................

11. As already observed, youth often commit indiscretions, which are often condoned.

12. It is true that in the application form the Respondent did not mention that he was involved in a criminal case under Section 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."

14. In Devender Kumar Yadav v. Govt. Of NCT of Delhi & Anr :

W.P.(C) 8731/2011 decided on 30.03.2012 in which one of us, namely,

Badar Durrez Ahmed, J. was a member, it has been held that:-

"12. ...........Such acquittals, where the material witnesses are produced during trial, but, they do not support the case of the prosecution, to our mind cannot be said to be technical acquittals. We cannot accept the contention that only a case, where the accused is acquitted despite material witnesses supporting the case of the prosecution on merits, would be a case of acquittal other than technical acquittal. We cannot presume that a witness, who does not support the case of the prosecution is necessarily doing so in collusion with the accused, in order to save him from punishment, despite his actually having committed the offence, with the commission of which he is charged. It may be true in some cases, but

may not necessarily be so in each case. What has to be seen in such cases is as to whether the material witnesses were examined or not. If they are examined, but do not support the prosecution and consequently it is held that the charge against the accused does not stand proved, that would not be a case of technical acquittal. We would like to note here that no independent inquiry was held by the respondents to verify the truthfulness or otherwise of the allegations which were made against the petitioner in the FIRs that were registered against him.

The Screening Committee which considered the case of the petitioner had no material before it which could give rise to an inference that the petitioner had actually committed the offences for which he had been prosecuted. As noted earlier, there is a presumption of innocence attached to an accused in a criminal case and the onus is on the prosecution to prove the charges levelled against him. Acquittal of the accused, after trial, only strengthens and reinforces the statutory presumption, which is otherwise available to him. We, therefore, hold that the view taken by the Screening Committee was not based on some legally admissible material and therefore cannot be sustained in law.........."

15. In Delhi Police & Anr v. Omveer Yadav : W.P.(C) 12899/2009

decided on 19.04.2010, the Delhi Police sought to cancel the candidature of

the applicant therein on the ground that he was involved in a criminal case

registered under Section 392/34 IPC in which he was discharged by the

Magistrate. It was contended before this Court that a person who was

accused in a case of robbery, could not be permitted to work in Delhi Police.

This Court vide its judgment dated 19.04.2010 upheld the order of the

Tribunal directing the Delhi Police to consider the case of the applicant

therein for recruitment, for the reason that the applicant was not guilty of

suppression or concealment. The High Court observed as under:-

"Apparently, the petitioners had passed the orders mechanically and in the circumstances, the order of the Tribunal quashing the order dated 16th October, 2008, cancelling the candidature of the respondent and holding that he is not suitable for the post of constable is arbitrary and could not be sustained in law and therefore, the order of the Tribunal setting aside the same does not suffer from any illegality or such irrationality, which would require any interference by this Court."

16. In the present case, it is observed that the petitioner had not

suppressed or concealed the factum of his being involved in the concerned

FIR. Further, acquittals, such as the present one, where the material

witnesses are produced during trial, but they do not support the case of the

prosecution, cannot be said to be technical acquittals. We would like to note

here that no independent enquiry was held by the petitioners to verify the

truthfulness of the allegations which were made against the respondent in the

FIR that was registered against him. We also observe that the Screening

Committee which considered the case of the petitioner had no material

before it which could give rise to an inference that the petitioner had actually

committed the offence for which he had been prosecuted. It is also observed

that at the time of the alleged commission of the offence, the respondent was