Tej Bahadur Singh Sisodiya vs Home Department
2023 Latest Caselaw 18754 MP

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                                                       W.P. No. 7466/2014



        IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
           HON'BLE SHRI JUSTICE VIVEK RUSIA

                WRIT PETITION No. 7466 of 2014

BETWEEN:-
TEJ BAHADUR SINGH SISODIYA, S/O SHRI TAKHTA SINGH
SISODIYA, AGED ABOUT 29 YEARS,R/O. P.N.T. COLONY MEERA
KUTI, RATLAM (MADHYA PRADESH)
                                                    .....PETITIONER
(MS. SANGITA PARSAI, LEARNED COUNSEL FOR THE PETITIONER.)

AND
   STATE OF M.P. THROUGH PRINCIPAL SECRETARY, HOME
1.
   DEPARTMENT, VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)
   ADDL. D.G.P. (SELECTION AND RECRUITMENT) P.H.Q. BHOPAL
2.
   (MADHYA PRADESH)
3. SUPERINTENDENT OF POLICE, MANDSAUR (MADHYA PRADESH)
                                                 .....RESPONDENTS
(SHRI KUSHAL GOYAL, LEARNED DY. ADVOCATE GENERAL FOR THE
RESPONDENTS/STATE.)



Reserved on             :     31.10.2023
Pronounced on           :     07.11.2023
      This petition having been heard and reserved for order, coming
up for pronouncement this day, this Court pronounced the following:
                              ORDER

The petitioner has filed the present petition being aggrieved by the order dated 16.9.2014 whereby respondent No.3, Superintendent of Police, Mandsaur has deleted his name from the selection list of Constable Recruitment Examination 2013 being found unfit for the

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police services.

1. That on 11.10.2012 the petitioner being a Home-guard was deputed to control the traffic along with other Home-guards at Sailana Bus Stand Square. He apprehended one auto-rickshaw bearing Registration No. MP-43-K-0813 driven by Aslam, and demanded him Rs. 100 a illegal gratification for not imposing the traffic challan. Aslam lodged the FIR u/s. 384 of the IPC against the petitioner which was registered at Crime No. 421/2012 Police Station, Industrial Area, Ratlam. The charge-sheet was filed against the petitioner and he was tried in Cr. Case No. 2682/2012 by Judicial Magistrate First Class . However, vide judgment dated 22.2.2013 he was acquitted as the prosecution failed to prove the sole charge beyond reasonable doubt.

2. The M.P. Professional Examination Board, Bhopal conducted Constable Recruitment Examination 2013 in which the petitioner participated for the post prima facie constable (GD). The result was declared in which the petitioner secured 81th rank in merit. He submitted the form in which he disclosed about his acquittal from the charge u/s. 384 vide judgment dated 22.2.2013. He was called upon for document verification on 30.8.2014. After examination of the judgment and other documents the matter was placed before the Screening Committee and the petitioner was called upon to submit his explanation. The Screening Committee did not find the petitioner fit for police services relying on Para 64 of the M.P. Police Regulations. As per the opinion of of the respondents the offence u/s. 384 I.P.C. is of moral turpitude and is of serious nature and, therefore, the petitioner is unfit for police services. Vide impugned order dated 16.9.2014 the

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Superintendent of Police, Mandsaur has deleted the name of the petitioner from the selection list, hence the present petition before this Court.

3. Ms. Sangita Parsai, learned counsel for the petitioner submitted that when the petitioner had been acquitted from the charge u/s. 384 of the IPC, therefore, it cannot be a stigma on his career. He has duly cleared the examination with qualifying marks. It is not the case of the respondents that the petitioner concilled about the criminal case registered against him in the verification form. The authority has wrongly treated that the petitioner was acquitted by giving benefit of doubt, but from perusal of the judgment it is clear that he was acquitted as the prosecution has failed to prove the charge beyond reasonable doubt. Therefore, in view of the judgment of the apex Court in the case of Commissioner of Police & others V/s. Sandeep Kumar : (2011) 4 SCC 644 the petitioner is liable to be appointed on the post of Constable. It is further submitted that in the case Avtar Singh V/s. Union of India : (2016) 8 SCC 471 the apex Court has considered the effect of acquittal before or after in the services.

4. The respondents have filed the reply by submitting that the petitioner was acquitted from the charge u/s. 384 of the IPC as the complainant turned hostile, but Para 53C of the M.P. Police Regulations mandates that the police personnel should have a good moral, character and antecedents. The selection does not give any right to get an appointment. The Screening Committee has duly considered the entire facts and circumstances of the case and found that the petitioner is not fit for police services.

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5. Shri Kushal Goyal, learned Dy. Advocate General appearing for the respondents, has placed reliance on latest judgments of the Apex Court in the case of State of M.P. V/s. Bhupendra Yadav reported in 2023 INSC 837; and Imtiyaz Ahmad Malla V/s. State of Jammu and Kashmir reported in 2023 SCC OnLine 205 in which despite acquittal in criminal case the appointment has been denied on the ground that the standard of rectitude to be applied to any person seeking appointment in a Law Enforcement Agency must always be higher and more rigorous for the simple reason that possession of a higher moral conduct is one of the basic requirements for appointment to a post as sensitive as that in the police service and, hence, the acquittal in the criminal case would not automatically entitle him being declared fit for appointment to the subject post. The respondent/State Government has judicially exercised its discretion after taking the note of all relevant factors relating to the antecedents of the petitioner.

After having heard the learned counsel for the parties at length I have perused the material available on record.

6. In the present case, the facts are not in dispute that before selection in the Constable Recruitment Examination the petitioner was subjected to the proceedings in a criminal case u/s. 384 of the IPC. The allegation against him was that he while working as Home-guard in traffic duty demanded Rs.100/- for not making the challan. As per the judgment of the trial Court, the complainant and other witnesses turned hostile and denied that the auto-rickshaw was apprehended and Rs.100/- was demanded by the petitioner. The complainant did not identify the petitioner in the court, but the presence of the petitioner

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was found proved from the statement of another Home-guard posted at the same place along with him. Although the petitioner was honourably acquitted, but for the police services, much higher standard of morality is required. The apex Court in the case of Bhupendra Yadav (supra) has held in Para 16, 17, 18 & 19 as under :

"16. We are, however, unable to concur with the aforesaid view. Even though the respondent had truthfully declared that he was involved in a criminal case which was decided by the trial Court vide judgement 26th October, 2015, on perusing the facts of the said case as noted hereinabove and the observations made in the judgement, quite clearly, this was not a case of clean acquittal. It is evident from the facts narrated that after the chargesheet was filed, the respondent had arrived at a compromise with the complainant and filed an application under Section 320 of the CrPC, based on which the offence under Section 341 IPC was compounded. As for the remaining offences for which the respondent was charged i.e. Section 354(D) of the IPC and Section 11 (D)/12 of the POCSO Act, they were non compoundable and therefore, the matter was taken to trial. The respondent was acquitted by the trial Court primarily on account of the fact that the complainant did not support the case set up by the prosecution and the other prosecution witnesses had turned hostile. In such circumstances, the respondent's plea that he had been given a clean acquittal in the criminal case, is found to be devoid of merits.

17. This is a classic example of the situation contemplated in para 38.4.3 of Avatar Singh10 (supra) where the charges framed against the respondent herein involved moral turpitude and though he was acquitted on the prosecution witnesses having turned hostile, but given the facts and circumstances of the case which led to his acquittal, we are of the view that the appellant - State Government was well within its right to exercise its discretion against the respondent and terminate his services on the ground that he was unfit for appointment in the police department. Here was a case where the complainant had reneged from the statement made to the police in view of a settlement arrived at with the respondent. It is noteworthy that the incident, subject matter of the criminal case3 had occurred on 14th February, 2015, and judgement was pronounced by the trial

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Court on 26th October, 2015. In the very next year, when the appellant - State Government invited applications for appointment to the post of Constable, the respondent had submitted his application. Even though this is a case of candid disclosure of the criminal case3 on the part of the respondent, which had culminated in an acquittal, but having regard to the fact that the prosecution could not succeed in proving the case against the respondent for the reasons noted hereinabove and further, being mindful of the fact that the case involved moral turpitude and the respondent was charged with non-

compoundable offences of a serious nature, we are of the firm view that the judgment of the trial Court cannot be treated as a clean acquittal.

18. The aforesaid aspects were rightly factored in by the appellant - State Government while issuing the communication dated 24th August, 20178 and declaring that the respondent was unfit for appointment to the said post. The yardstick to be applied in cases where the appointment sought relates to a Law Enforcement Agency, ought to be much more stringent than those applied to a routine vacancy. One must be mindful of the fact that once appointed to such a post, a responsibility would be cast on the respondent of maintaining law and order in the society, enforcing the law, dealing with arms and ammunitions, apprehending suspected criminals and protecting the life and property of the public at large. Therefore, the standard of rectitude to be applied to any person seeking appointment in a Law Enforcement Agency must always be higher and more rigourous for the simple reason that possession of a higher moral conduct is one of the basic requirements for appointment to a post as sensitive as that in the police service.

19. We are, therefore, of the opinion that mere acquittal of the respondent in the criminal case3 would not automatically entitle him to being declared fit for appointment to the subject post. The appellant-State Government has judiciously exercised its discretion after taking note of all the relevant factors relating to the antecedents of the respondent. In such a case, even one criminal case faced by the respondent in which he was ultimately acquitted, apparently on the basis of being extended benefit of doubt, can make him unsuitable for appointment to the post of a Constable. The said decision taken by the appellant- State Government is not tainted by any malafides or arbitrariness for the High Court to have interfered therewith. As a result, the

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judgement dated 17th November, 2017, passed by the learned Single Judge is upheld while quashing and setting aside the impugned judgment dated 24th January, 2018, passed by the Division Bench of the High Court. The appeal is allowed. Parties are left to bear their own costs."

The apex Court in the case of Imtiyaz Ahmad Malla (supra) has held in Para 13, 14 & 15 as under :

"13. As regards the suppression of relevant information or false information with regard to the criminal prosecution, arrest or pendency of criminal case against the candidate, a three-judge Bench of this Court in Avtar Singh Vs. Union of India and Others5 has laid down the precise guidelines. Para 38.5 thereof reads as under:

"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."

14. In all the above cases, the requirement of integrity and high standard of conduct in police force has been highly emphasised. The High Court in the impugned judgement has also elaborately dealt with each and every aspect of the issues involved, while upholding the order of the Single Bench to the effect that the Director General being the highest functionary in the police hierarchy, was the best judge to consider the suitability of the petitioner for induction into the police force. The impugned order being just and proper, we are not inclined to interfere with the same in exercise of our jurisdiction under Article 136 of the Constitution of India.

15. It is well settled position of law that though the scope of Article 136 of Constitution of India is very wide, the power conferred thereunder being a very special and extraordinary power, it has to be exercised in rare and exceptional cases. Since, we do not find any infirmity or illegality in the impugned order passed by the High Court, the present petition deserves to be dismissed and is accordingly dismissed."

7. Admittedly, as per the circular dated 5.6.2003 issued by the Home Department of the State, offence under Section 384 of the IPC

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comes under the category of moral turpitude. In the case of Avtar Singh (supra), in paragraph 38.4.3 the Apex Court held that, where the charges framed against the respondent herein involved moral turpitude and though he was acquitted on the prosecution witnesses having turned hostile which led to his acquittal, the State Government is well within its right to exercise its discretion against the respondent and terminate his services on the ground that he was unfit for appointment in the police department. It is a matter of confidence of an employer on the employee who is either working or going to be appointed in the services. Unless the employer gains a confidence on the employee, that he is fit to be appointed or continued in the services. In the present case, even despite acquittal, but after examining the entire matter, the Screening Committee comprising of senior police officers did not recommend the name of the present petitioner for appointment. This court cannot examined the decision of the experts employer in the field as an appellate forum .

8. In view of the foregoing discussion, no interference is called for with the impugned decision taken by the respondent and the petition deserves to be and is hereby dismissed. No order as to costs.

( VIVEK RUSIA ) JUDGE Alok/-

Digitally signed by ALOK GARGAV Date: 2023.11.08 10:48:15 +05'30'