State Of Rajasthan vs Bhawani Shankar Moorh
2023 Latest Caselaw 1685 Raj

[2023/RJJD/002510]                      (1 of 6)                           [SAW-816/2022]


      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     D.B. Spl. Appl. Writ No. 816/2022

1.       State     Of   Rajasthan,        Through         The       Secretary,   Home
         Department,         (Group-I)         Government             Of    Rajasthan,
         Secretariat, Jaipur.
2.       The Director General Of Police, Police Head Quarters,
         Rajasthan, Jaipur.
3.       The Inspector General Of Police (Recruitment), Rajasthan,
         Jaipur.
4.       Commandant 1St Battalion Rac, Jodhpur.
                                                                        ----Appellants
                                       Versus
Bhawani Shankar Moorh S/o Shri Prabhu Dan Moorh, Aged About
25 Years, R/o New Karni Nagar Police Quarter B 22 Bikaner Raj
                                                                      ----Respondent


For Appellant(s)             :     Mr. Sandeep Shah, Senior Advocate-
                                   cum-AAG, assited by Mr. Nishant
                                   Bafna
For Respondent(s)            :     Mr. Praveen Vyas



            HON'BLE MR. JUSTICE SANDEEP MEHTA
     HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT

                                    Judgment

Date of pronouncement : 13/02/2023

Judgment reserved on : 25/01/2023

BY THE COURT : PER HON'BLE MEHTA, J.

The instant intra court writ appeal is preferred by the

State of Rajasthan questioning legality and validity of the order

dated 09.02.2022 passed by the learned Single Bench, whereby

the writ petition filed by the respondent was accepted and the

communication dated 18.12.2018, whereby the candidature of the

respondent for the post of Constable pursuant to the notification

[2023/RJJD/002510] (2 of 6) [SAW-816/2022]

dated 25.05.2018 was rejected on the ground that a criminal case

was pending against him, which fact came to light during police

verification. The rejection of the candidature of the respondent

writ petition was assailed on the ground that the criminal case,

which was registered against him, was of the year 2011, at which

point of time, he was a juvenile within the meaning of the Juvenile

Justice (Care and Protection of Children) Act, 2000 (for short,

hereinafter referred to as "the Act of 2000") and as such, by virtue

of the mandate of Section 24 of the Juvenile Justice (Care and

Protection of Children) Act, 2015 (for short, hereinafter referred to

as "the Act of 2015"), the writ petitioner was entitled to protective

umbrella against use of criminal antecedents in any future

recruitment process. A ground was also put forth in the writ court

that on the date of passing of the impugned order, the case was

under trial and the writ petitioner was not convicted for any

offence. Additionally, it was contended that even in a case of

conviction, protection of Section 24 of the Act of 2015 was

required to be extended to the writ petitioner as the factum of

conviction could not act as a disqualification as per the clear

language of Section 24 of the Act of 2015.

The respondents (appellants herein) contested the writ

petition on the ground that the respondent writ petitioner was

later on, convicted for the offence punishable under Section 302

IPC amongst others, which being a crime of heinous nature, he

could not have been considered for appointment on the sensitive

post of Police Constable.

[2023/RJJD/002510] (3 of 6) [SAW-816/2022]

Learned Single Bench considered the entirety of the facts

and circumstances; prevailing legal position and held that Section

24 of the Act of 2015 includes in its ambit, the cases of juveniles,

who have been convicted and protects such juveniles from any

disqualification and thus, a juvenile, who is facing trial, stands on

a better footing and would definitely be entitled to protective

umbrella of Section 24 of the Act of 2015. The learned Single

Bench applied the ratio of the judgment rendered by Hon'ble

Supreme Court in the case of Avtar Singh Vs. Union of India

[(2016) 8 SCC 471] to the facts of the case and held that the

respondent writ petitioner was entitled to protection of Section 24

of the Act of 2015 and as such, rejection of his candidature in

subject selection process on the ground of the registration and

proceedings of the criminal case was invalid. The writ petition was

allowed with these observations by the order dated 09.02.2022,

which is assailed in this intra court appeal.

Shri Sandeep Shah, learned Senior Advocate-cum-AAG,

assisted by Shri Nishant Bafna, representing the appellants,

vehemently and fervently contended that the respondent writ

petitioner had applied for post of constable in the highly

disciplined Police Force and that the department has absolute

discretion to reject the candidature of a person having criminal

antecedents. It was his contention that the learned Single Bench

was not justified in applying the provisions of Section 24 of the Act

of 2015 because the criminal case against the respondent writ

petitioner was registered in the year 2011 and since the provisions

of the Act of 2015 are not retrospective, the benefit of Section 24

[2023/RJJD/002510] (4 of 6) [SAW-816/2022]

of the Act of 2015 could not have been extended to protect the

respondent against disqualification entailing from the pendency of

a criminal case for the heinous offence of murder. He further

submitted that after rejection of the candidature of the respondent

by order dated 18.12.2018, the Juvenile Justice Board concluded

the enquiry and held the respondent guilty of the offences

punishable under Section 302 & 201 IPC. The appeal too has

been rejected and as such, the learned Single Bench was not

justified in exercising the powers of judicial review so as to

interfere in the just and rightful decision of the employer in

rejecting the candidature of the writ petitioner. On these grounds,

Shri Shah implored the court to accept the appeal; reverse the

impugned order and affirm the decision of the employer to reject

the candidature of the respondent.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned order and the material placed on record.

At the outset, we may note here that the charge-sheet

was filed against the petitioner in the Juvenile Justice Board,

Bikaner on 12.09.2011 for the offences punishable under Section

302 and 201 IPC. The respondent herein was a young boy of

about 14 and half years on the date of the incident and thus,

enquiry was held against him in the Juvenile Justice Board

concerned as per the provisions of the Juvenile Justice Act, 2000.

A perusal of the judgment dated 07.02.2019, whereby the

Juvenile Justice Board held the respondent guilty, reflects that the

[2023/RJJD/002510] (5 of 6) [SAW-816/2022]

case of the prosecution was based purely on circumstantial

evidence. Though this court is not called upon to comment on the

merits of the criminal case registered against the respondent or

the judgment of the Juvenile Justice Board dated 07.02.2019

(Annex.5 to the writ petition), whereby he was held guilty, but still

we are compelled to make a brief reference thereto. A perusal of

the Board's judgment would reveal that the respondent herein was

held guilty of the charge purely on the basis of circumstantial

evidence and that too, the sole circumstance of his last seen.

However, the allegation of last seen together was not incorporated

in the first report of the incident given to the police, i.e. the

Missing Person Report (Ex.P/14), wherein it was alleged by the

complainant Deepdaan that his son Master 'H' left home on

22.05.2011 at about 12.30 p.m. saying that he was going out to

play, but did not return till lodging of the report. It is thus, an

admitted position that the allegation regarding the deceased being

lastly seen in the company of the respondent was not incorporated

in the Missing Person Report. Whether or not this significant

omission would invalidate the prosecution allegations, would be

for the competent court to consider, before which the judgment of

conviction is assailed, but we definitely are of the prima facie

opinion that this allegation has been incorporated in the

prosecution case through a sheer improvement.

Be that as it may. A perusal of the language of Section

24 of the Act of 2015 and the corresponding provision in the Act of

2000, i.e. Section 19, would make it clear that the record of

conviction of the child in conflict, cannot be preserved and has to

[2023/RJJD/002510] (6 of 6) [SAW-816/2022]

be destroyed. As a direct consequence, any disqualification

entailing from the conviction would have to be ignored and cannot

act to the detriment of the child in conflict with law in any manner,

which would include a selection process for public employment.

Consequently, in such a situation, the employer is

prohibited by law from referring to or taking in consideration the

judgment of conviction so as to deprive a successful candidate,

who was a child in conflict with law at some point of time from

being employed in Government service. The view taken by the

learned Single Bench, whereby rejection of the candidature of the

respondent by order dated 18.12.2018 was declared to be invalid

does not suffer from any infirmity warranting interference.

Hence, the appeal fails and is dismissed as being

devoid of merit.

No order as to costs.

                                   (YOGENDRA KUMAR PUROHIT),J                                    (SANDEEP MEHTA),J


                                    Pramod/-









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