Devendra Singh Gurjar vs State Of M.P. & Others

The instant intra-court appeal preferred u/S.2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005

assails the final order passed by the learned Single Judge on 05.11.2019 exercising writ jurisdiction of this Court under Article 226 of Constitution

dismissing the petition in question by which challenge was made to the rejection of candidature of petitioner for appointment to the post of Constable

(Driver) in Police Force on the ground that petitioner had antecedents of Crime No.144/2014 registered at Police Station Antri, District Gwalior

alleging offences punishable u/Ss.147, 148, 149, 307, 323, 324 and 341 of IPC, out of which petitioner was acquitted by compounding by order dated

23.09.2015 as regards Secs.323, 323/149, 325, 325/149 and was further acquitted by judgment dated 23.09.2015 in S.T. No.167/2015 qua the offences

punishable u/Ss.307, 307/149, 324, 324/149, 143 and 148 of IPC by the Second ASJ Dabra, District Gwalior by invoking provision of Sec.232 of

Cr.P.C

Learned counsel for the rival parties are heard on the question of admission.

Bare facts giving rise to the present case are that petitioner in 2017 participated in the recruitment process for appointment to the post of Constable

(Driver) in police force. Petitioner was found suitable and thus selected for the said post and was directed to be posted at 36 S.I.R.B. Balaghat. Prior

to his posting, his antecedents were scrutinized. In the verification form filled by the petitioner, disclosure of one offence bearing Crime No.144/2014

(supra) was made. It was also revealed in the verification form that petitioner had been acquitted by judgment dated 23.09.2015 on merits.

It is pertinent to mention here that Crime No.144/2014 arose out of the alleged incident dated 31.10.2014 where petitioner alongwith six other

accused was said to have assaulted injured Gajendra (PW-1), Gandarbh (PW-2), Kuber (PW-3) and Dashrath (PW-4). After the investigation was

over, charge-sheet was put up alleging the petitioner as one of the 7 accused in S.T. No.167/2015. Rival parties deciding to bury their hatchet, sought

and were granted permission to compound the offences punishable u/Ss.323, 323/149, 325, 325/149 under Section 320 of Cr.P.C. leading to acquittal

of petitioner of the charges qua the said offences. As regards remaining offences u/Ss.307, 307/149, 324, 324/149, 143 and 148 of IPC, statements of

injured PWs- 1, 2, 3 and 4 (supra) were recorded. All the said four injured witnesses on 23.09.2015 testified that there was argument and altercation

between the rival parties but the injuries sustained by them were due to falling down on the ground during the course of argument and not due to overt

act of any of the accused including the petitioner. Thus, the witnesses in unison testified that accused was not armed with any weapon as alleged by

the prosecution and police did not record any statement of witnesses u/S.161 of Cr.P.C. On being declared hostile by the government pleader, all the

said four witnesses further revealed that their statements recorded by the police u/S.161 of Cr.P.C. as Exs.P/2, P/3, P/4 and P/5 respectively are not

their statements and they express their ignorance as to how such statements were recorded by the police. Thus, all the four injured witnesses not only

denied the genesis of the prosecution story but also its every detail leading to a situation that there was no material or evidence worth its name for the

learned trial Judge to form even a prima facie opinion that the accused had committed offences or was involved in charge. As such in the face of total

absence of prosecution evidence, the need for accused to enter upon his defence stood obviated. Thus, the trial Court invoking Sec.323 of Cr.P.C.

truncated the proceedings by acquitting the petitioner.

However, the appointing authority vide Anneuxre P/1 was of the view that the acquittal was not honourable/clean but merely technical and was

based on compounding and also that since offence u/S.307 of IPC involved moral turpitude, the candidature of petitioner suffered dismissal.

After hearing learned counsel for rival parties, the questions that beg for answer are as follows:-

(i) Whether despite acquittal rendered by learned trial Judge for the offences punishable u/Ss.307 and 324 IPC the petitioner continues to face the

stigma of moral turpitude.

(ii) As to whether acquittal vide judgment dated 23.09.2015 in S.T. No.167/2015 was honourable/ clean or not?

6.1 If the answer to the second question is in the affirmative then the need to dwell upon question No.1 gets obviated. Thus, this Court deems it

appropriate to first dwell upon question No.2.

6.2 For the purpose of question No.2, certain provisions of Cr.P.C. need to be reproduced:-

“228. Framing of charge.

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence

which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial

Magistrate, and thereupon

the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant- cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked

whether he pleads guilty of the offence charged or claims to be tried.

229.Conviction on plea of guilty. If the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon.

Date for prosecution evidence. If the accused refuses to plead, or does not plead, or claims to be tried or is not convicted under section 229, the Judge shall

fix a date for the examination of witnesses, and may, on the application of the prosecution, issue any process for compelling the attendance of any witness or the

production of any document or other thing.

Evidence for prosecution.

(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.

(2) The Judge may, in his discretion, permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined or recall

any witness for further cross-examination.

Acquittal. If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, theJudge

considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.

Entering upon defence.

(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support

thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall

issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of

vexation or delay or for defeating the ends of justice.

Arguments. When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his pleader

shall be entitled to reply: Provided that where any point of law is raised by the accused or his pleader, the prosecution may, with the permission of the Judge,

make his submissions with regard to such point of law.

Judgment of acquittal or conviction.

(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of section 360, hear the accused on the question of sentence,

and then pass sentence on him according to law.â€​

6.3 A close scrutiny of the aforesaid provisions of Cr.P.C. reveal that a trial starts from framing of charge u/S.228, whereafter the plea of

guilt/innocence is recorded. When the accused pleads innocence then evidence is produced by the prosecution in support of the prosecution case and

charge framed. This can be in the

nature of oral and so also documentary. Witnesses so produced by the prosecution are subjected to examination-in-chief, cross-

examination and further  examination. Thereafter, before the defence is called upon to adduce evidence, the trial Judge has to decide

u/S.232 as to whether in the face of prosecution evidence adduced and recorded is there a need to proceed further to call upon the defence. If

prosecution evidence recorded u/S.231 is insufficient to give an impression that the accused has committed the offence alleged after testing the same

on the anvil of proof beyond all reasonable doubts, the trial Judge is left with no option but to acquit the accused. Such an acquittal is invariably and

unquestionably a clean/honourable one with no element of benefit of doubt. The view of this Court is bolstered by the judicial pronouncement in

M.Cr.C. No.27101/2018 passed on 02.05.2019, the relevant extract of which is reproduced below for ready reference and convenience:-

“4. The criminal law in India does not recognize the concept of honourable, clean or technical acquittal. These sub-categories of acquittal are foreign to the

scheme of Cr.P.C. However, these subcategories assume relevance when used in the field of service jurisprudence. Section 232 of Cr.P.C. provides for acquittal

which is reproduced below for ready reference and inconvenience:-

Sec.232:-Acquittal. If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge

considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.

The aforesaid provision contemplates that after collecting the evidence for the prosecution, examining accused and hearing the prosecution and the defence,

the trial Court finds that there is no evidence that the accused has committed any offence alleged against him, the trial Court shall record an order of acquittal.

The term “acquittalâ€​ is neither defined in Cr.P.C. nor in I.P.C., therefore, resort will have made the dictionary meaning of the said expression.

Chambers-21st Century Dictionary-Publishing Director-Robert Allen

Acquittal:- A declaration in a court of law that someone is not guilty of the crime, etc of which they have been accused.

Concise Oxford English Disctionary, South Asia Edition. Editor:-Angus Stevenson, Maurice Waite.

Acquittal:-A judgement or verdict that a person is not guilty of a criminal charge.

The attention of this Court has already been invited to Para:- 24 of Dy. Inspector General of Police and Anr. Vs. S.Samuthiram, (2013) 1 SCC 598 which is

reproduced below:-

The meaning of the expression ‘honourable acquittal’ came up for consideration before this Court in Management of Reserve Bank of India, New Delhi

v. Bhopal Singh Panchal (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a

criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service,

the acquittal, it was held, has to be honourable. The expressions ‘honourable acquittal’, ‘acquitted of blame’, ‘fully exonerated’ are unknown

to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the

expression ‘honourably acquitted’. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably

failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

The aforesaid view of the Apex Court has been referred to with approval in Union Territory, Chandigarh Administration and Ors. Vs. Pradeep Kumar and Anr.,

(2018) 1 SCC 797.

From the reading of above enunciation and exposition of law, it is evident that an acquittal can be categorized as honorable when there is total absence of

evidence, in support of the charge alleged.â€​

Thus, the petitioner by judgment of acquittal dated 23.09.2015 in S.T. No.167/2015 was honourably acquitted of the charges alleged against him.

Moreso, a bare perusal of the statements of injured witnesses No.1, 2, 3 and 4 reveals that all the said four witnesses have denied the very

occurrence of the incident, except disclosing that there were arguments and altercations between the rival parties. The allegation of prosecution that

petitioner was wielding a weapon was out-rightly denied. Sustenance of injuries by the said witnesses was testified to be attributed to falling on the

ground by mistake and not to by any overt act of petitioner. These witnesses also denied the police to have recorded their statements u/S.161 Cr.P.C.

As such the entire prosecution story was denied in examination-in-chief itself. Thus, the prosecution case collapsed before cross-examination could

take place. Even in cross-examination, all the said four injured witnesses have reiterated their stands in examination-in-chief.

At this juncture, it would be appropriate to observe that merely because a PW is declared hostile to the prosecution case, does not per se lead to the

inference that he has been won over. It is not only inappropriate but also dangerous to draw such inference unless there is material on record to

reflect the element of winning over. Possibility cannot be ruled out that where PW denies the prosecution story in examination-in-chief, he is speaking

the truth. Similarly possibility of prosecution having falsely implicated the petitioner cannot be denied. Thus, by jumping to the conclusion that merely

because a PW has turned hostile, he or she is not speaking the truth, would lead to incongruous situation, where the Court would be assuming such a

witness to be a liar and in the same breath assuming the prosecution case to be a gospel truth.

In the background of above discussion, it is always appropriate and safe to consider certain other facts before concluding as to whether an

ultimate acquittal rendered is clean/honourable or not. This Court in one of its earlier decisions had an occasion to dwell upon some of the relevant

factors which ought to be taken into account by the appointing authority as guiding principles to ascertain the true nature of acquittal (clean/honourable

or not). The relevant extract of the said judgment dated 02.03.2020 passed in W.A. No.7/2020 is reproduced below for ready reference and

convenience:-

“12. Thus what comes out loud and clear from the above discussion is that appointing authority while assessing suitability of a candidate to enter public

employment has a heavy responsibility of considering lot many factors. Mere registration of offence which according to the appointing authority involves moral

turpitude especially when the Court of competent jurisdiction has not pronounced judgment on merits, is not per se good enough to declare a candidate unfit for

public employment.

12.1 Employer in discharge of this onerous responsibility is required to inter alia consider following factors:-

(i) The nature of allegations;

(ii) Overt act alleged against candidate;

(iii) Whether the allegations are solely against individual candidate or have been alleged with the aid of section 34/149 of IPC

(iv) The criminal antecedents of the candidate;

(v) Overall reputation of the candidate in his locality/society etc.

The aforesaid factors are illustrative and not exhaustive. There can be other relevant factors which Â

the Competent Authority can consider. The concern of this Court is that it is seen time and again that the appointing authorities are not discharging this onerous

duty while considering candidature of persons seeking public employment. The appointing authority often adopts cursory and perfunctory approach. The

appointing authority ought to remember that it is dealing with prospects of employment of a citizen of the country, which if not dealt with appropriately in

accordance with the rule of law, can jeopardize the entire future of a candidate and render her/him demoralized.â€​

In conspectus of above discussion what come out loud and clear and is vivid from the record that the trial Court while invoking Sec.232 of Cr.P.C.

did not find the offence adduced by the prosecution to be even sufficient to prima facie prove the charges. In other words, prosecution miserably

failed to even prove the genuineness of a case projected by it thereby impelling the learned trial Judge to return a finding of acquittal u/S.232 which is

an honourable and clean acquittal.

Consequently, it is obvious that while passing the impugned order dated 14.11.2018 (Annexure P/1), respondent No.3 while holding the petitioner to

be ineligible for appointment and thereby cancelling the candidature, failed to properly apply his mind to the aspect of acquittal being honourable.

Thereby rendering the impugned order dated 14.11.2018 vitiated in the eyes of law.

Accordingly, present appeal is allowed to the extent indicated below:-

(i) Impugned order dated 05.11.2019 passed in W.P. No.29034/2018 passed by the learned Single Judge is set aside.

(ii) Impugned order dated 14.11.2018 (Annexure P/1) passed by respondent No.3 is quashed for having been passed without application of mind.

(iii) Respondent No.3/competent authority is directed to reconsider the case of petitioner for appointment to the post of Constable (Driver) in Police

Force afresh by treating the acquittal dated 23.09.2015 to be clean and honourable and pass an appropriate speaking order in accordance with law.

(iv) The aforesaid exercise be completed within a period of 60 days from the date of receipt of copy of this order.

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