BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 02.09.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.(MD)No.9954 of 2010 and M.P.(MD).No.1 of 2010 Lakshmanaperumal ..Petitioner versus 1.State represented by the Chairman, Tamil Nadu Uniformed Service Recruitment Board, Chennai - 600 002.
2.State represented by Director General of Police, Chennai..Respondents Prayer Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, to call for the records in Pa.Ma.Ka.No.175200/Niyamanam 1(2)/2009-3, on the file of the respondent No.2, dated 02.12.2009 and quash the same and further to direct the respondent No.2 to select the petitioner as Grade II Police Constable.
!For Petitioner : Mr.V.Kathirvelu, Senior Counsel For respondents : Mr.V.Muruganandan, Government Advocate :ORDER
This is an unfortunate case.
The petitioner, an youth, at his twenties made an application to participate in the selection process for the post of Grade II Police Constable.
The petitioner was successful in the written examination, physical fitness test and all the other related examinations.
However, the second respondent by his proceedings, dated 02.12.2009, rejected his candidature on the ground that he was involved in a criminal case and he was arrested and remanded to Judicial custody.
It is also stated that the petitioner had suppressed his involvement in the case in the police verification form.
Challenging the said order, the petitioner is before this Court with this writ petition.
2.I have heard Mr.V.Kathirvelu, learned senior counsel appearing for the petitioner and the learned Government Advocate appearing for the respondents.
I have also perused the records carefully.
3.For deciding the issue involved in this writ petition, certain dates and events are very important, which I venture to narrate.
The petitioner submitted his application seeking to participate in the selection process in the month of May, 2007.
He received a call letter on 23.07.2007.
The written examination was held on 29.07.2007.
While he was awaiting for the results, there was an alleged occurrence on 04.10.2007 alleging the commission of certain crimes, involving few people.
However, case was registered by the Sub Inspector of Police, Panakudi Police Station, in Tirunelveli District, in Crime No.368 of 2007, under Sections 147, 294(b) & 323 IPC.
The name of the petitioner was not arrayed as accused in the FIR.
On completing the investigation, a charge sheet was laid by the Inspector of Police, Panakudi Police Station.
The learned Judicial Magistrate, Valliyoor, took cognizance of the offences on the final report filed by the Police on 03.07.2009.
The petitioner was, thereafter, summoned to the Court.
He was never arrested by the Police, neither was he remanded to Judicial custody.
The petitioner participated in the trial.
He denied the accusation against him.
Finally the learned Judicial Magistrate by judgment dated 29.09.2009, acquitted the petitioner honourably.
4.In the meanwhile, the results of the selection process for the post of Grade II Police Constable was published, in which the petitioner became successful.
The Police verification was, therefore, ordered to verify as to whether he has got any involvement in any criminal case, as dealt with in Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules 1978.
The petitioner submitted a verification form in which in column 15, 16 & 18 he had stated that he was not involved in any criminal case, though the fact remains that the criminal case in STC.No.1678 of 2009, referred to above, was then pending.
The Superintendent of Police, Tirunelveli, after verifying the antecedents of the petitioner submitted a report to the second respondent stating that the petitioner was involved in STC.No.1678 of 2009 and that he was arrested on 15.01.2008 and remanded to judicial custody.
Based on the said report and the fact that the petitioner was involved in a criminal case in Crime No.1678 of 2009, the second respondent passed the impugned order rejecting his candidature.
5.The learned senior counsel appearing for the petitioner would submit that a reading of the judgment of the learned Magistrate would go to show that the acquittal is honourable.
But, the learned Government Advocate would submit that the acquittal is on benefit of doubt.
In order to resolve this issue, I have carefully gone through the entire judgment.
In paragraph No.13 of the judgment, after having discussed the entire evidence let in in the case, the learned Magistrate has held that ?.for the reasons aforesaid, the Court holds on the point that the accused are not guilty under Section 147, 294(b) & 323 IPC".This conclusion of the learned Magistrate would go to show that the learned Magistrate had not acquitted the accused for want of evidence, but he has acquitted accused by giving a positive finding that the petitioner and other accused are not guilty.
6.Section 3 of the Indian Evidence Act deals with three expressions, viz., proved, disproved and not proved.
In a criminal case, if the Court holds that the facts leading to the offence have not been proved.
It means the Court has found no sufficient evidence to prove.
In other words, the offence is neither proved nor disproved.
If the Court holds that the involvement of the accused is proved, then the accused is to be punished.
On the contrary, if the Court holds that the involvement of the accused is disproved, then the Court will hold positively that the accused is not guilty.
Here, in this case, the learned Magistrate has very cautiously used the language that the accused are ".not guilty".
which means the involvement of the petitioner has been disproved.
Therefore, it cannot be held that it is a case falling within the expression ".not proved".It is a definite case falling with the expression 'disproved'.
Therefore, I have no hesitation to hold that the acquittal of the petitioner in the case is honourable.
7.The learned Government Advocate would refer to paragraph No.14 of the judgment of the learned Magistrate, wherein he has stated that the offences have not been proved beyond reasonable doubt.
This, in my considered opinion, is only a passing remark for which no important could be attached.
In order to find out whether the acquittal is honourable or not, the entire judgment is to be read.
In this case, a plain reading of the judgment of the learned Magistrate would go to show that, as rightly held by him in paragraph No.13, the acquittal is only honourable.
8.Now turning to Rule 14(b)(iv) of the Tamil Nadu Special Police Subordinate Service Rules, it reads as follows; ".14(b) No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the Appointing Authority,- (i)..(ii)...(iii)..(iv) That he has not involved in any Criminal case before Police verification.".
9.Explanation (2) of the said Rules reads as follows; Explanation (2).A person involved in a criminal case at the time of Police verification and the case yet to be disposed of and subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a Criminal Case and he can claim right for appointment only by participating in the next recruitment.".
10.Going by the Explanation (2).which explains Rule 14(b)(iv) of the Rules, in the instant case, it has to be held that as on the date of police verification, since the case in STC No.1678 of 2009 was pending against the petitioner, he is not eligible for appointment in the instant selection process.
But, as per the Explanation II appended to Rule 14(b).since the acquittal of the petitioner on 29.09.2009 is a honourable acquittal, he is entitled for appointment by participating in the next recruitment.
I am hopeful that this clarification will help the petitioner to participate in the next selection process for the post of Grade II Police Constable.
11.The learned senior counsel for the petitioner appearing for the petitioner would submit that the constitutionality of the Explanation II is doubtful.
This argument is, though attractive, I am not in a position to examine the said doubt raised by the learned senior counsel, in view of the larger bench judgment of this Court in J.Alex Ponseelan versus The Director General of Police, Chennai, reported in 2014 (2) L.W.1, wherein a majority of four Honourable Judges of this Court have held that the Explanation II appended to Rule 14(b)(iv) is constitutional, though the minority has held the same as unconstitutional.
As I am bound by the Larger Bench judgment, I cannot express any opinion on this issue.
It is for the petitioner to work out his remedy in the manner known to law.
12.Now, turning to the impugned order, the observation of the second respondent in the impugned order that the petitioner was arrested on 15.01.2008 and he was remanded to judicial custody is incorrect.
The present Sub Inspector of Police, Panakudi Police Station is present before this Court, along with the Case Diary.
On verification of the same, the learned Government Advocate would submit that the petitioner was not at all arrested and remanded to custody.
Therefore, the impugned order cannot be sustained on this ground.
But, it needs to be sustained on the ground that the petitioner was involved in a criminal case before the date of police verification.
It is on this ground I have to dismiss the writ petition.
13.Before parting with this case, I would like to remind the people in helm of affairs that one of the salutary aims of the criminal law is to reform the individuals who have shown deviance from law and to restore them to the mainstream, so as to make them as useful citizens of this Country.
If an individual's future could be doomed by mere inclusion of his name as an accused in a petty case, the result would certainly be disastrous.
It is not uncommon in the present day context that complaints are made out of animosity or enmity.
Later on, it may turn out that the said case is false.
For the simple inclusion of the name of an individual as an accused in a false FIR, he cannot be shown the doors when he seeks employment.
It all depends upon the gravity of the offence in which one is involved and his fate in respect of the employment cannot be decided in a blind manner that he is involved in a petty case.
Though, the Larger Bench of this Court has upheld the validity of Rule 14(b)(iv) of the Tamil Nadu Special Police Subordinate Service Rules, 1978, the Government may consider whether the said rule requires amendment in the light of the Delhi Police Service Rules, where a Screening Committee has been constituted to go into the antecedents of an individual and then to decide whether he is fit for appointment as a police constable.
I am only hopeful that the Government would take this suggestion, seriously.
14.In the result, the writ petition fails and the same is accordingly dismissed, however, with clarification that the petitioner shall be entitled to participate in the next selection process and his involvement in STC No.1678 of 2009 on the file of the Judicial Magistrate, Valliyoor shall not be a disqualification for him to participate in any other selection process in future.
Consequently, connected miscellaneous petition is also dismissed.
No costs.
15.The Registry is directed to forward copies of this order to the Secretary to Government, Home (Police) Department; Secretary to Government, Law Department and the State Law Commission.
02.09.2014 Index : Yes Internet : Yes gcg To 1.The Chairman, Tamil Nadu Uniformed Service Recruitment Board, Chennai - 600 002.
2.The Director General of Police, Chennai.
S.NAGAMUTHU, J.
gcg W.P.(MD)No.9954 of 2010 02.09.2014