Madhya Pradesh High Court
Bhanu Pratap Singh Kushwah vs The State Of Madhya Pradesh on 12 March, 2025
Author: Milind Ramesh Phadke
Bench: Anand Pathak, Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:6687
1 WA-590-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 12th OF MARCH, 2025
WRIT APPEAL No. 590 of 2025
BHANU PRATAP SINGH KUSHWAH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prashant Sharma, learned counsel for the appellant.
Shri Ankur Mody, learned Additional Advocate General for the
respondents/State.
ORDER
Per: Justice Milind Ramesh Phadke:
The present writ appeal under Section 2(1) of Madhya Pradesh Uchch
Nyayalay (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 is directed against
the order dated 06.02.2025passed in writ petition No.16859/2020, whereby the
order dated 31.08.2020, by which the present appellant was denied appointment
on the post of Naib Tehsildar, relying on the Rule 9(4) of Madhya Pradesh Junior
Administrative Service (Recruitment and Service Conditions) Rule, 2011 alleging
that since a criminal appeal is pending against the order of acquittal of appellant
tried under the provision of Corruption Act before the High Court the appellant is
not entitled for the appointment, was affirmed and petition was dismissed.
2. The genesis of the dispute is that the appellant, who was working as
Patwari, in the departmental examination for promotion to the post of Naib
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Tehsildar, which took place in the year 2018, got selected after clearing the exam
but even after passing of the said exam on the pretext that the appellant having
been tried for an offence under the Prevention of Corruption Act registered by
Lokayukt though was acquitted, but since had been challenged in appeal, which
is pending before this Court, in the wake of pendency of appeal the appointment
cannot be given to him.
3. Assailing the said order the appellant preferred the writ petition
No.16859/2020, which was dismissed by this Court vide order dated 06.02.2025.
Assailing the aforesaid order passed by the writ Court counsel for the appellant
submitted that the writ Court while deciding the petition had deviated itself from
the basic issue and while relying upon the judgment of Apex Court in the matter
of State of M.P. & Ors. Vs. Parvez Khan reported in (2015)2 SCC 591 has held
that even if a person is acquitted or discharged in a criminal case, that acquittal or
discharge order will have to be examined to see whether he has been completely
exonerated therein because even a possibility of his taking to the life of crimes
poses a threat to the aforesaid post of Executive Magistrate, as a candidate to be
recruited to the said post must be worthy of confidence and must be a person of
utmost rectitude and must have impeccable character and integrity, which is
wholly perverse as the aforesaid observation was not the reason for denying the
petitioner his appointment on the post of Naib Tehsildar in the impugned order,
which was under challenge before the writ Court but the writ Court had made it a
reason for dismissal of the writ petition.
4. It was further submitted that the order of acquittal of the petitioner was
prior to issuance of the advertisement issued by the respondent/authorities,
therefore, at the time when petitioner made an application in pursuance to the said
advertisement he was not charged with any offence and, therefore, a presumption
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of innocence got fortified in his favour but this fact has been ignored by the
Single Judge, which has rendered the order vulnerable, therefore, it is liable to be
set aside.
5. While referring to Rule 9(4) of M.P. Land Records and Settlements
Class III (Executive and Technical) Service Rules, 2012, it was argued that only
those candidates shall not be eligible for appointment of service, who has been
convicted for an offence or against whom a criminal case has been registered but
herein case though criminal case was registered against the appellant, he was
acquitted and in the light of definition of judicial proceedings as provided under
Section 2(4) of Madhya Pradesh Junior Administrative Service (Recruitment and
Service Conditions) Rule, 2011, preferment of an appeal against an acquittal,
cannot be regarded as the continuance of the trial and cannot be treated to be
pendency of judicial proceeding as the initial presumption of innocence gets re-
enforced by the orders of acquittal. To bolster his submissions, reliance was
placed in the matters of Surinder Kumar Vs. State of Himachal Pradesh & Anr.
reported in 1985(3) SLR 254, R.C. Dubey Vs. M.P. State Electricity Board
reported in 2013 SCC Online MP 1004 and in the matter of Balak Singh Thakur
Vs. State of Madhya Pradesh reported in 2014 SCC Online MP 1036 .
6. On the basis of the aforesaid arguments, it was submitted that the
impugned order of dismissal of the writ petition passed by learned Single Judge,
cannot be sustained and thus, be quashed.
7. On the other hand , learned counsel for the respondents/State while
supporting the impugned order submitted that the learned Single Judge, while
considering the cases of Apex Court in the matters of Avtar Singh Vs. Union of
India reported in (2016) 8 SCC 471 , State of Madhya Pradesh Vs. Parvez Khan
(Supra); has rightly held that since the post on which the appellant/petitioner had
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been selected i.e. of Naib Tehsildar shoulders a great responsibility for deciding
the revenue matters, in maintaining the law and public order in the society and as
people repose great faith and confidence in it, it must be worthy of that
confidence, thus, a candidate wishing to join the post of Naib Tehsildar, which is
also a post of Executive Magistrate must be a person of utmost rectitude and must
have impeccable character and integrity and a person having criminal antecedents
will not fit in this category.
8. It was further argued that the learned Single Judge has rightly concluded
that even if the candidate is acquitted or discharged in the criminal case, that
acquittal or discharge order will have to be examined to see whether he has been
completely exonerated in the case because even a possibility of his taking to the
life of crimes poses a threat to the discipline of aforesaid post of Executive
Magistrate, thus, it is submitted that no illegality has been committed by the
Single Judge and the present appeal being devoid of merits is liable to be
dismissed.
9. Heard learned counsel for the parties and perused the record.
10. The question which requires consideration is whether an appeal against
an acquittal can be said to be a continuance of criminal case. In the said regard
definition of Judicial proceedings as provided under Section 2(1) of Cr.P.C. is
required to be seen:-
Section 2 (i) of the Criminal Procedure Code, 1973 defines judicial proceeding,
which includes any proceedings in the course of which evidence is or may be legally
taken on oath."
11. The definition as apparent is not exhaustive. Therefore, before
proceeding can be held to be a judicial proceeding, it must be found that in the
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course of that proceeding evidence is or may be legally taken on oath. If evidence
could not be taken legally on oath it would not amount to a judicial proceeding.
Furthermore, a criminal proceeding is initiated when a criminal law is set at
motion against a person on the basis of an information to the police that a person
has committed a cognizable offence leading to an investigation into the
accusation against the person and filing of report under Section 173 of the
Cr.P.C., whereupon an accused is tried of an offence registered leading to the
conviction or the acquittal, as the case may be. With the acquittal the charges of
commission of offence gets washed of. A person so acquitted of the charges stand
at par with a person who is not being charged and was not subjected to a criminal
proceeding, thus, preferment of a criminal revision or an appeal against an
acquittal cannot be regarded as a continuance of the trial and cannot be treated to
be pendency of judicial proceeding as the initial presumption of innocence gets re-
enforced by the orders of acquittal. In the aforesaid regard the judgment of
Division Bench at Allahabad High Court in the matter of Sheo Raj vs State
reported in AIR 1964 ALLAHABAD 290 can be referred.
12. Similar view has been taken by the Division Bench of Himachal
Pradesh High Court in the matter of Surinder Kumar Vs. State of Himachal
Pradesh & Anr.(supra), wherein it has been held that the preferment of an appeal
against an acquittal cannot be regarded as a continuance of the trial. The trial have
concluded in the judgment of acquittal. Initial presumption of innocence would,
therefore, be regarded or gets re-enforced by the order of acquittal passed in
favour of the petitioner. Another Division Bench of Kolkata High Court in the
matter of State of West Bengal vs Hari Ramalu reported in (2000)3 LLN 638; has
held in paragraph 10 as under:-
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"Continuation of the proceedings must relate to investigation, enquiry or trial and
such investigation, enquiry or trial, if any, have come to an end with the judgment of
acquittal. The same being continuing in the instant case is misconceived, only on the
ground that an appeal there against is pending. If respondent is convicted by the
appeal Court for commission of a criminal offence, sub-rule (4) of rule 3 of the said
Rules would be attracted. Keeping in view the fact that different sub-rules of rule 3
operate in different fields, we are of the opinion that sub-rule (3) of rule 3 be held to
be operative only in the case namely, when an investigation, enquiry or trial remains
pending and not or when the employee person is acquitted. The situations obtaining
under different sub-rule being absolutely different, in our opinion, sub-rule (3) of
rule 3 must be given a restrictive interpretation."
13. Thus, it is clear that mere pendency of an appeal cannot be said to be
continuance of judicial proceedings and, therefore, the ground taken by the
competent authority in passing the order dated 31.08.2020 (Annexure P/1)
appended to the petition, which was under challenge before the writ Court passed
by invoking the provision 9(4) of the Rules, 2012 could not have been sustained.
However, as the Apex Court in the matter of State of M.P.& Ors. Vs. Parvez
Khan (Supra) has held that a candidate wishing to join the post of Naib Tehsildar,
which is also a post of Executive Magistrate must be a person of utmost rectitude
and must have impeccable character and integrity, therefore, a person having
criminal antecedents will not fit in this category and even if he is acquitted or
discharge in the criminal case, that acquittal or discharge order will have to be
examined to see whether he has been completely exonerated in the case because
even a possibility of his taking to the life of crimes poses a threat, to the aforesaid
post of Executive Magistrate, goes to imply that the employer is required to
examine the grounds of exoneration/acquittal and only thereafter had to come to a
conclusion whether the appellant was fit to be given appointment on the post of
Naib Tehsildar but from the order dated 31.08.2020 this Court doesn't find that
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the competent authority had considered the case of the petitioner in the light of the
aforesaid legal position and learned Single Judge though had quoted the excerpts
from the judgement of Apex Court in the matter of State of M.P.& Ors. Vs.
Parvez Khan (Supra), had not considered the case of the petitioner as aforesaid.
14. Accordingly, the order passed by learned Single Judge being not
sustainable is hereby set aside and the matter is remitted back to the competent
authority to consider the case of the petitioner for his appointment on the post of
Naib Tehsildar keeping in view of the dictum of the Apex Court as well as this
Court as referred above.
15. Hence, the present petition is allowed and disposed of.
16. Certified copy as per rules.
(ANAND PATHAK) (MILIND RAMESH PHADKE)
JUDGE JUDGE
neetu
