Madhya Pradesh High Court
Deepak Vishnoi vs The State Of Madhya Pradesh on 22 August, 2023
Author: Gurpal Singh Ahluwalia
1 W.P. No.20686/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 22nd OF AUGUST, 2023
WRIT PETITION No. 20686 of 2023
BETWEEN:-
DEEPAK VISHNOI S/O SHRI MAHESH
VISHNOI, AGED ABOUT 30 YEARS,
OCCUPATION: STUDENT R/O WARD NO
2, VISHNOI MOHALLA, JHADPA
NIMGAON, DISTRICT HARDA (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI AJAY MISHRA - SENIOR ADVOCATE WITH SHRI GAURAV
TIWARI - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
THROUGH SECRETARY HOME
VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. THE DIRECTOR GENERAL OF
POLICE HEAD QUARTERS, BHOPAL
BHOPAL (MADHYA PRADESH)
3. ASSTT. INSPECTOR GENERAL OF
POLICE SPECIAL BRANCH
(SECURITY) MADHYA PRADESH
(MADHYA PRADESH)
4. SUPERINTENDENT OF POLICE,
DISTRICT HARDA (MADHYA
PRADESH)
5. COMMANDANT 23 BATTALION SAF
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI G.P. SINGH - GOVERNMENT ADVOCATE )
............................................................................................................................................
2 W.P. No.20686/2023
This petition coming on for admission this day, the court passed the
following:
ORDER
This Petition Article 226 of Constitution of India has been filed
against order dated 16.03.2023 passed by Commandant, 23rd Battalion
SAF, Bhopal in file No.23rd Battalion/SAF/Estt./P.741-A/2023 by which
candidature of petitioner for the post of Constable has been rejected.
2. The facts necessary for disposal of present petition in short are
that an advertisement was issued in the year 2017 for recruitment to the
post of Constable in 23rd Battalion SAF, Bhopal. Petitioner appeared in
said examination and was declared successful and accordingly,
petitioner was allocated to 23rd Battalion SAF. In Character Verification
Form, petitioner had specifically pointed out criminal cases, which were
registered against him i.e. Criminal Case No.1368/2011 and Criminal
Case No.713/2013 for offence under Sections 294, 452, 323, 325/34,
427, 506 Part-II of IPC, which was pending in the Court of JMFC
Harda. Thereafter, by order dated 29.11.2018, petitioner was declared
disqualified from Police Services. Accordingly, petitioner preferred
W.P. No.2651/2019 before this Court and after considering submissions
made by counsel for the parties, this Court passed an order dated
22.09.2022 thereby directing respondents to decide representation. In
compliance of order passed by this Court, petitioner submitted a detailed
representation. However, by impugned order dated 16.03.2023,
representation has been rejected and as consequence thereof,
candidature of petitioner for the post of Constable in SAF has been
rejected.
3. It is submitted by counsel for petitioner that Apex Court in the
case of Pramod Singh Kirar Vs. State of Madhya Pradesh and Ors.
decided on 02.12.2022 in Civil Appeal No.8934-8935/2022 has held
that since settlement had taken place between the parties, which resulted
in acquittal of candidate, therefore, he cannot be denied appointment
only on the ground that earlier he was prosecuted for offence under
Section 498-A of IPC. It is further submitted that once petitioner has
been acquitted, therefore, there cannot be any hurdle in appointment of
petitioner specifically when there is a scarcity of government jobs.
Merely because petitioner was prosecuted in two different criminal
cases, same may not be hurdle for denying a government Job.
4. Per contra, petition is vehemently opposed by counsel for State. It
is submitted that Supreme Court in the case of Avtar Singh Vs. Union
of India and others reported in (2016) 8 SCC 471 has also held that the
employer can consider antecedents and cannot be compelled to appoint
the candidate. It is submitted that for appointment in police force, a
person of an impeccable character and utmost honesty is required. Two
criminal cases were registered against petitioner and both the criminal
cases resulted in acquittal only on the ground that in both criminal cases,
complainant had decided to enter into a compromise. Therefore, it is
clear that acquittal of petitioner was not honourable.
5. Heard learned counsel for the parties.
6. The moot question for consideration is that whether acquittal of
petitioner on the basis of compromise can be said to be an honourable
acquittal or not?
7. The case in hand is squarely covered by the judgment passed by
the Supreme Court in the case of State of Rajasthan and Others Vs.
Love Kush Meena reported in (2021) 8 SCC 774, wherein it has been
held as under:-
"24. 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.
25. 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 Sections
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.
26. The judgment in Avtar Singh case [Avtar
Singh v. Union of India, (2016) 8 SCC 471 :
(2016) 2 SCC (L&S) 425] 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."
8. The Supreme Court in the case of Avtar Singh (supra) has held
as under:-
"38.1 Information given to the employer by
a candidate as to conviction, acquittal or arrest, or
pendency of a criminal case, whether before or
after entering into service must be true and there
should be no suppression or false mention of
required information.
38.2. While passing order of termination of
services or cancellation of candidature for giving
false information, the employer may take notice
of special circumstances of the case, if any, while
giving such information.
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. In case there is suppression or false
information of involvement in a criminal case
where conviction or acquittal had already been
recorded before filling of the application/
verification form and such fact later comes to
knowledge of employer, any of the following
recourse appropriate to the case may be adopted:
38.4.1. In a case trivial in nature in which
conviction had been recorded, such as shouting
slogans at young age or for a petty offence which
if disclosed would not have rendered an
incumbent unfit for post in question, the employer
may, in its discretion, ignore such suppression of
fact or false information by condoning the lapse.
38.4.2 Where conviction has been recorded
in case which is not trivial in nature, employer
may cancel candidature or terminate services of
the employee.
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.
38.5. In a case where the employee has
made declaration truthfully of a concluded
criminal case, the employer still has the right to
consider antecedents, and cannot be compelled to
appoint the candidate.
38.6. In case when fact has been truthfully
declared in character verification form regarding
pendency of a criminal case of trivial nature,
employer, in facts and circumstances of the case,
in its discretion may appoint the candidate subject
to decision of such case.
38.7. In a case of deliberate suppression of
fact with respect to multiple pending cases such
false information by itself will assume
significance and an employer may pass
appropriate order cancelling candidature or
terminating services as appointment of a person
against whom multiple criminal cases were
pending may not be proper.
38.8. If criminal case was pending but not
known to the candidate at the time of filling the
form, still it may have adverse impact and the
appointing authority would take decision after
considering the seriousness of the crime.
38.9. In case the employee is confirmed in
service, holding Departmental enquiry would be
necessary before passing order of
termination/removal or dismissal on the ground of
suppression or submitting false information in
verification form.
38.10. For determining suppression or false
information attestation/verification form has to be
specific, not vague. Only such information which
was required to be specifically mentioned has to
be disclosed. If information not asked for but is
relevant comes to knowledge of the employer the
same can be considered in an objective manner
while addressing the question of fitness. However,
in such cases action cannot be taken on basis of
suppression or submitting false information as to a
fact which was not even asked for.
38.11. Before a person is held guilty of
suppressio veri or suggestio falsi, knowledge of
the fact must be attributable to him."
9. The Supreme Court in the case of State of Madhya Pradesh and
Others vs. Abhijit Singh Pawar, passed in Civil Appeal No. 11356 of
2018 (Arising out of SLP (c) No.17404 of 2016) by judgment dated
26th November, 2018 has observed as under:-
''14. In Avtar Singh (supra), though this Court was
principally concerned with the question as to non-
disclosure or wrong disclosure of information, it
was observed in paragraph 38.5 that even in cases
where a truthful disclosure about a concluded case
was made, the employer would still have a right to
consider antecedents of the candidate and could
not be compelled to appoint such candidate.
15. In the present case, as on the date when the
respondent had applied, a criminal case was
pending against him. Compromise was entered
into only after an affidavit disclosing such
pendency was filed. On the issue of compounding
of offences and the effect of acquittal under
Section 320(8) of Cr.P.C., the law declared by this
Court in Mehar Singh (supra), specially in
paragraphs 34 and 35 completely concludes the
issue. Even after the disclosure is made by a
candidate, the employer would be well within his
rights to consider the antecedents and the
suitability of the candidate. While so considering,
the employer can certainly take into account the
job profile for which the selection is undertaken,
the severity of the charges levelled against the
candidate and whether the acquittal in question
was an honourable acquittal or was merely on the
ground of benefit of doubt or as a result of
composition.
16. The reliance placed by Mr. Dave, learned
Amicus Curiae on the decision of this Court in
Mohammed Imran (supra) is not quite correct and
said decision cannot be of any assistance to the
respondent. In para 5 of said decision, this Court
had found that the only allegation against the
appellant therein was that he was travelling in an
auto-rickshaw which was following the auto-
rickshaw in which the prime accused, who was
charged under Section 376 IPC, was travelling
with the prosecutrix in question and that all the
accused were acquitted as the prosecutrix did not
support the allegation. The decision in
Mohammed Imran (supra) thus turned on
individual facts and cannot in any way be said to
have departed from the line of decisions rendered
by this Court in Mehar Singh (supra), Parvez
Khan (supra) and Pradeep Kumar (supra).
17. We must observe at this stage that there is
nothing on record to suggest that the decision
taken by the concerned authorities in rejecting the
candidature of the respondent was in any way
actuated by mala fides or suffered on any other
count. The decision on the question of suitability
of the respondent, in our considered view, was
absolutely correct and did not call for any
interference. We, therefore, allow this appeal, set
aside the decisions rendered by the Single Judge
as well as by the Division Bench and dismiss Writ
Petition No.9412 of 2013 preferred by the
respondent. No costs.''
10. The Supreme Court in the case of Mohammed Imran Vs. State
of Maharashtra and others passed in C.A. No. 10571 of 2018, by
order dated 12-10-2018 has held as under :-
''6. Employment opportunities is a scarce
commodity in our country. Every advertisement
invites a large number of aspirants for limited
number of vacancies. But that may not suffice to
invoke sympathy for grant of relief where the
credentials of the candidate may raise serious
questions regarding suitability, irrespective of
eligibility. Undoubtedly, judicial service is very
different from other services and the yardstick of
suitability that my apply to other services, may
not be the same for a judicial service. But there
cannot be any mechanical or rhetorical incantation
of moral turpitude, to deny appointment in
judicial service simplicitor. Much will depend on
the facts of a case. Every individual deserves an
opportunity to improve, learn from the past and
move ahead in life by self-improvement. To make
past conduct, irrespective of all considerations,
albatross around the neck of the candidate, may
not always constitute justice. Much will, however,
depend on the fact situation of a case."
11. The Supreme Court in the case of Union of Territory,
Chandigarh Administration and Ors. vs. Pradeep Kumar and
Another, reported in (2018) 1 SCC 797 has held as under:-
''11. Entering into the police service required a
candidate to be of good character, integrity and
clean antecedents. In Commissioner of Police,
New Delhi and Another v. Mehar Singh (2013) 7
SCC 685, the respondent was acquitted based on
the compromise. This Court held that even though
acquittal was based on compromise, it is still open
to the Screening Committee to examine the
suitability of the candidate and take a
decision.......
12. While considering the question of suppression
of relevant information or false information in
regard to criminal prosecution, arrest or pendency
of criminal case(s) against the candidate, in Avtar
Singh v. Union of India and Others(2016) 8 SCC
471, three-Judges Bench of this Court
summarized the conclusion in para (38). As per
the said decision in para (38.5), (SCC p. 508)
''38.5. In a case where the employee
has made declaration truthfully of a
concluded criminal case, the
employer still has the right to
consider antecedents, and cannot be
compelled to appoint the candidate."
13. It is thus well settled that acquittal in a
criminal case does not automatically entitle him
for appointment to the post. Still it is open to the
employer to consider the antecedents and examine
whether he is suitable for appointment to the post.
From the observations of this Court in Mehar
Singh and Parvez Khan cases, it is clear that a
candidate to be recruited to the police service
must be of impeccable character and integrity. A
person having criminal antecedents will not fit in
this category. Even if he is acquitted or
discharged, it cannot be presumed that he was
honourably acquitted/completely exonerated. The
decision of the Screening Committee must be
taken as final unless it is shown to be mala fide.
The Screening Committee also must be alive to
the importance of the trust repose in it and must
examine the candidate with utmost character.
* * *
17. In a catena of judgments, the importance of
integrity and high standard of conduct in police
force has been emphasized. As held in Mehar
Singh case, the decision of the Screening
Committee must be taken as final unless it is mala
fide. In the case in hand, there is nothing to
suggest that the decision of the Screening
Committee is mala fide. The decision of the
Screening Committee that the respondents are not
suitable for being appointed to the post of
Constable does not call for interference. The
Tribunal and the High Court, in our view, erred in
setting aside the decision of the Screening
Committee and the impugned judgment is liable
to be set aside.
12. The Supreme Court in the case of The State of M.P. and others
Vs. Bunty by order dated 14/3/2019 passed in Civil Appeal
No.3046/2019 has held as under:-
"13. The law laid down in the aforesaid decisions
makes it clear that in case of acquittal in a
criminal case is based on the benefit of the doubt
or any other technical reason. The employer can
take into consideration all relevant facts to take an
appropriate decision as to the fitness of an
incumbent for appointment/continuance in
service. The decision taken by the Screening
Committee in the instant case could not have been
faulted by the Division Bench."
13. The Full Bench of this Court in the case of Ashutosh Pawar vs.
State of M.P. reported in 2018 (2) MPJR 178 has held as under:-
"Decision of Criminal Court on the basis of
compromise or an acquittal cannot be treated that
the candidate possesses good character, which
may make him eligible, as the criminal
proceedings are with the view to find culpability
of commission of offence whereas the
appointment to the civil post is in view of his
suitability to the post. The test for each of them is
based upon different parameters and therefore,
acquittal in a criminal case is not a certificate of
good conduct to a candidate. The competent
Authority has to take a decision in respect of the
suitability of candidate to discharge the functions
of a civil post and that mere acquittal in a criminal
case would not be sufficient to infer that the
candidate possesses good character. Division
Bench judgment of this Court in
W.P.No.5887/2016 (Arvind Gurjar vs. State of
M.P.) is overruled. Another Division Bench
judgment in W.A. No.367/2015 (Sandeep Pandey
vs. State of M.P. and others) is also overruled.
Jurisdiction of the High Court in a writ petition
under Art. 226 of the Constitution of India is to
examine the decision-making process than to act
as Court of appeal to substitute its own decision.
In appropriate case, if the Court finds decision-
making process is arbitrary or illegal, the Court
will direct the Authority for reconsideration rather
than to substitute the decision of the competent
Authority with that of its own.
The expectations from a Judicial Officer are of
much higher standard. There cannot be any
compromise in respect of rectitude, honesty and
integrity of a candidate who seeks appointment as
Civil Judge. The personal conduct of a candidate
to be appointed as Judicial Officer has to be free
from any taint. The standard of conduct in the
case of Judicial Officer is higher than that
expected of an ordinary citizen and also higher
than that expected of a professional in law as well.
The same must be in tune with the highest
standard of propriety and probity."
14. This Court in the case of Anil Kumar Balmik vs. State of M.P.
and others by order dated 02.09.2020 passed in W.P.No.23104/2019(s)
has held has under:-
"Compounding of offence" is nothing but an
undertaking by the victim to give up the
prosecution of the offender.
15. This Court in the case of Bhagwat Singh Vs. State of M.P. and
others decided on 08/12/2021 in Writ Petition No.26996/2021 has held
as under:-
"8. Although it is the case of the petitioner that he
had not suppressed the factum of registration of
criminal case and acquittal of the petitioner on the
basis of compromise, but it appears that the
screening committee after considering the case,
found that the petitioner is not fit for police service.
9. By the impugned order, the candidature of the
petitioner has been once again rejected on the
ground that since the petitioner has been acquitted
on the basis of compromise, therefore, it cannot be
said to be an honourable acquittal. As already held
by the Full Bench of this Court in the case of
Ashutosh Pawar (supra), an acquittal on the basis
of compromise cannot be treated that the candidate
possesses good character, which may make him
eligible, as the criminal proceedings are with a view
to find culpability of commission of offence
whereas the appointment to the civil post is in view
of his suitability to the post. Further, the Supreme
Court in the case of Pradeep Kumar (supra) has
held that entering into the police service requires
good character, integrity and clean antecedents.
10. Undisputely, it is for the employer to consider
the suitability of a candidate. Eligibility and
suitability are to different aspects and this Court
cannot substitute its finding by holding that the
candidate should be held to be suitable. This Court
in the case of Anil Kumar Balmik (supra) has
held as under:
"Suitability" cannot be confused with
"Eligibility". A coordinate Bench of this
Court in the case of Madhur Vs. State of
M.P. by order dated 17-4-2018 passed in
W.P. 21231 of 2017 has held as under :
The "suitability" cannot be confused
with eligibility". In the 'Major Law
Laxicon' by P. Ramanatha Iyer
about the word following view is
expressed-"the word 'suitable' does
not require a definition because any
man of experience would know who
is suitable. However, each case has
to be viewed in the context in which
the word "suitability" or "suitable"
is used, the object of the enactment
and the purpose sought to be
achieved." A constitution Bench of
Supreme Court in State of J & K vs.
Trilokinath Khosa (1974) 1 SCC 19
and another Bench in State of Orissa
vs. N.N. Swami (1977) 2 SCC 508
opined that eligibility must not be
confused with the suitability of the
candidate for appointment. These
judgments were considered 9 W.P.
No.21231/2017 by Calcutta High
Court in 2013 SCC Online 22909
(All b. Ed. Degree Holders Welfare
Association vs. State of West Bengal
). In (2009) 8 SCC 273 (Mahesh
Chandra Gupta vs. Union of India) it
was again held that suitability of a
recommendee and the consultation
are not subject to judicial review but
the issue of lack of eligibility or an
effective consultation can be
scrutinized.. The Supreme Court in
(2014) 11 SCC 547 (High Court of
Madras vs. R. Gandhi) while dealing
with appointment on a constitutional
post opined that 'eligibility' is an
objective factor. When 'eligibility' is
put in question, it could fall within
the scope of judicial review. The
aspect of 'suitability' stands
excluded from the purview of
judicial review. At the cost of
repetition, the Apex Court opined
that 'eligibility' is a matter of fact
whereas 'suitability' is a matter of
opinion. In this view of the matter,
when Competent Authority has
examined the suitability in the teeth
of relevant enabling provision i.e.
Rule 6 (3) of Rules of 1961,
interference is totally unwarranted.
While exercising the power under Article 226 of
the Constitution of India cannot act as an Appellate
Authority and cannot substitute its own findings.
The Supreme Court in the case of UPSC v. M.
Sathiya Priya, reported in (2018) 15 SCC 796 has
held as under :
18........It is the settled legal position
that the courts have to show
deference and consideration to the
recommendations of an Expert
Committee consisting of members
with expertise in the field, if malice
or arbitrariness in the Committee's
decision is not forthcoming. The
doctrine of fairness, evolved in
administrative law, was not
supposed to convert tribunals and
courts into appellate authorities over
the decision of experts. The
constraints--selfimposed,
undoubtedly--of writ jurisdiction
still remain. Ignoring them would
lead to confusion and uncertainty.
The jurisdiction may become
rudderless.""
16. Petitioner has filed a copy of judgment passed in criminal cases,
which were registered against him. As per order dated 19.11.2011, it is
clear that a compromise application was filed and accordingly,
petitioner was acquitted for offence under Sections 294, 323/34 and
506-B of IPC. From judgment dated 27.02.2018, it is clear that
allegations against petitioner and co-accused were that on 06.04.2013 at
about 15.00 hours, petitioner as well as co-accused persons used filthy
language against complainant and forcibly entered inside the shop and
assaulted complainant Prashant by fists and blows, which resulted in
fracture as well as caused mischief by damaging shop. Thus, it is clear
that in Criminal Case No.713/2013, allegations were that petitioner and
co-accused persons were aggressors and they not only committed
trespass but also assaulted complaint Prashant and caused damage to the
property. Fracture was also caused to complainant Prashant. From
paragraph 7 of the judgment, it is clear that application for compromise
was filed and accordingly, petitioner was acquitted for offence under
Sections 294, 323, 325/34, 427 and 506 part-II of IPC and since offence
under Section 452 of IPC was not compoundable, therefore, evidence of
witnesses was recorded. Complainant Prashant Bhardwaj was declared
hostile for the purposes of offence under Section 452 of IPC. Similarly,
another witness Abhishek was also declared hostile for offence under
Section 452 of IPC. Under these circumstances, in paragraph 15 of the
judgment, it was specifically held by trial Court that since complaint and
witness Abhishek have compromised with petitioner and co-accused
persons and therefore, they have already been acquitted for offcence
under Sections 294, 323, 325/34, 427, 506 Part-II of IPC and so far as
offence under Section 452 of IPC is concerned, no evidence has come
on record, therefore, petitioner and other co-accused persons were
acquitted for offence under Section 452 of IPC. Complainant Prashant
Bhardwaj as well as Abhishek have compromised the matter with
petitioner and co-accused persons and since petitioner and other co-
accused persons were already acquitted for offence under Sections 294,
323, 325/34, 427 and 506 Part II of IPC, therefore, their evidence was
recorded only for purposes of offence under Section 452 of IPC.
Prashant Bhardwaj as well as Abhishek have specifically stated that
Prashant Bhardwaj was beaten by petitioner and other co-accused
persons but they turned hostile on the question of trespass and
accordingly, petitioner and co-accused person were acquitted for offence
under Section 452 of IPC. "Compromise" means complainant is not
interested to proceed further. Merely because complainant had decided
not to prosecute the accused would not mean that accused was being
prosecuted falsely.
17. Furthermore, in the present case, complainant Prashant as well as
witness Abhishek have specifically stated about assault was made by
petitioner and co-accused persons but they were acquitted only on the
ground that complainant as well as Abhishek had entered into a
compromise with petitioner and other co-accused persons. Under these
circumstances, this Court is of considered opinion that acquittal of
petitioner was not honourable at all and in fact allegations were
reiterated by witnesses before the Court and if respondents have held
that petitioner is not fit for appointment, then said conclusion drawn by
respondents cannot be said to be without any basis.
18. Accordingly, no case is made out warranting interference.
19. Petition fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
Shanu
Digitally signed by SHANU
RAIKWAR
Date: 2023.08.24 14:30:39 +05'30'
