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Banti Sahariya vs The State Of Madhya Pradesh on 23 January, 2020

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The High Court of Madhya Pradesh
WP 22192 of 2019
[Banti Sahariya vs. State of MP and Ors.]
Gwalior, dtd. 23/01/2020
Shri JP Rathore, counsel for the petitioner.

Shri Pawan Singh Raghuvanshi, Government Advocate for the

respondents/ State.

This petition under Article 226 of the Constitution of India has been filed

seeking the following reliefs:-

”7(i). That, the respondents may kindly be directed to make
appointment of the petitioner on the post of Constable in
Department of Madhya Pradesh Police.

(ii) That, Any other writ order and direction, which is found
just, suitable and proper in favour of the petitioner, may kindly be
granted to the petitioner.

(ii-a) That, the order Annexure P/9 may kindly be set aside.”

(2) The necessary facts for disposal of the present petition in short are that in

the year 2017-18 an advertisement was issued by the respondents for appointment

on the post of Police Constables. The said Special Recruitment Drive was for the

members of primitive scheduled tribes. The petitioner also participated in the

Special Recruitment Drive and by the merit list (Annexure P3), the petitioner was

declared selected and accordingly, the Assistant Inspector General of Police,

Special Branch, PHQ Bhopal, by letter dated 02/11/2018 (Annexure P5), directed

the petitioner for his appearance before the Special Branch, PHQ Bhopal on

16/11/2018 for verification of his character. It is submitted that on 12/03/2017,

Crime No.75/2017 was registered by Police Station Raghogarh, District Guna

against the petitioner for offence u/S. 363 of IPC. Later on, charge-sheet for

offence under Sections 363, 366, 376(1) of IPC and Section 3 /4 of Protection of
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Children from Sexual Offences Act, 2012 [in short ” POCSO Act”] was filed. The

petitioner was acquitted by judgment dated 19/01/2019 passed by Special Judge

(POCSO Act)/Second Additional Sessions Judge, District Guna passed in Special

Sessions Trial No.25/2017. Thereafter, by letter dated 22/04/2019 (Annexure P9),

the petitioner has been informed that the Scrutiny Committee by its order dated

08/03/2019 has held that the petitioner is unfit for his appointment on the post of

Constable. Although the copy of the order dated 08/03/2019 passed by the

respondent No.3 has not been placed on record but by IA 6041/2019, the petition

was amended seeking quashment of the order dated 08/03/2019.

(3) Considered the submissions made by the counsel for the petitioner.

(4) In the entire writ petition, the petitioner has not disclosed as to whether

any pendency of criminal case was disclosed in his character verification form or

not? However, one thing is clear that the allegations against the petitioner were of

kidnapping a minor girl and committing rape on her. Mere acquittal of a

candidate in a criminal case would not ipso facto make him entitled for his

recruitment, but the employer is well -within his right to consider the effect of

registration of criminal case.

(5) 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 dtd. 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
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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.”

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
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good character, integrity and clean antecedents. In Commissioner of
Police, New Delhi and Another Vs 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

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
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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.”

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
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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.”

(6) Considering the facts and circumstances of the case as well as the

considering the fact that a criminal case of kidnapping a minor girl and

committing rape on her was registered against the petitioner, this Court is of the

considered opinion that his acquittal in the Special Sessions Trial would not be

sufficient for setting aside the decision of the Scrutiny Committee by which the

petitioner was found unfit for his appointment on the post of Police Constable.

(7) Accordingly, this petition fails and is hereby dismissed.

(G.S.Ahluwalia)
Judge

MKB

MAHENDRA
KUMAR BARIK
2020.01.27
10:54:07 +05’30’
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07’00’

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