In Re: Dastagir and ors. - Court Judgment

Excerpt:
criminal procedure code (act v of 1898), section 162 - granting copies--court must satisfy itself that contradictions exist--court's duty to grant them subject to proviso 2. - t.n. district police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the constitution. but it is well settled that if a rule passes the twin tests of (i) being founded on an intelligible differentia, and (ii) such differentia having a nexus with the object sought to be achieved, it cannot be said to be violative of articles 14 and 16 of the constitution. the impugned rule creates a classification of persons, who were not involved in criminal cases and persons, who were involved in criminal cases. the object of creating such a classification is to ensure that only those persons, whose character and antecedents were beyond and shadow of doubt alone, are permitted entry into the police service of the state. the rule is only a reflection of the intention of the government to maintain purity of administration. the rule merely provides a check post or a filter point, to ensure that only those, who had a clean record of personal life, are admitted into the system. that the existing system, has already come under heavy dose of criticism, cannot be swept under the carpet. therefore, as an employer, the government is entitled to prescribe, especially in a disciplined force like the police force, such a restriction at the entry level. there cannot be a dispute about the proposition that an employer has the right to prescribe any qualifications for appointment to a post. if that be so, an employer has a concomitant right even to prescribe disqualifications when it comes appointment to a post. persons who were never involved in criminal cases, need not be treated as equals to or on par with persons who were involved in criminal cases merely because they are acquitted later, especially in the matter of selection to the police service of the state. the classification made between them, is not only reason able but also has a nexus with the object sought to be achieved. the employer does have the right to choose a person untainted with any allegations. the attempt made to assail the impugned rules on the ground of violation of articles 14 and 16 of the constitution is fragile. the impugned rules themselves appear to be a product of the application of the right to equality. a person, who was never involved in any criminal case, cannot be equated to a person, who was involved in a criminal case, merely because he is acquitted later, at least insofar as matters of public employment are concerned. therefore, the challenge to the impugned rule on the ground of infringement of articles. 14 and 16 of the constitution must fail. -- section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); appointment - state police service - disqualification of a person acquitted on benefit of doubt or discharged in a criminal case - validity? held, by virtue of explanation 1 to clause (iv) of rule 14(b) of the t.n. special police subordinate service rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the state and that the same cannot be termed as disqualified for selection to the police service of the state and that the same cannot be termed as illegal or unjustified. the reason as to why cr.p.c. does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tried for a second time for the same offence for which he is tried and convicted or acquitted once. what is provided under section 300(1) of cr.p.c. is only a reassurance of the constitutional right guaranteed under article 20(2). the principle behind this prescription under section 300 of cr.p.c. is to avoid double jeopardy to a person. if the code recognizes such a distinction, it may make inroads into this concept of double jeopardy. but the concept of double jeopardy, to some extent, is allergic to service law. in many cases the supreme court has made it clear - (i) that the imposition of a punishment and the denial of promotion did not amount to double jeopardy, and (ii) that the conviction by a criminal court and the disciplinary proceedings initiated either on the basis of conduct which let to the conviction or on pure questions of misconduct, did not amount to double jeopardy. since the concept of acquittal is an acquittal, is an off shoot of the principle of double jeopardy underlying section 300(1) of the code, it cannot be imported into service law, where the principle of double jeopardy itself is looked down upon. therefore, the explanation 1 to rule 14(b) of the impugned rules, treating a person acquitted on benefit of doubt, as a person involved in a criminal case, is only in tune with well settled principles applicable to service jurisprudence. a person discharged does not even have protection under section 300 of cr.p.c. and hence such a person cannot assail the explanation 1 to the impugned rule 14(b). -- section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); - appointment to state police service - failure of a person to disclose in the application form, either his involvement in a criminal case or pendency of a criminal case against him - effect? - held, the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. his subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. in any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the two explanations under clause (iv) of rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honourable or otherwise. -- t.n. district police act, 1859. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the constitution. but it is well settled that if a rule passes the twin tests of (i) being founded on an intelligible differentia, and (ii) such differentia having a nexus with the object sought to be achieved, it cannot be said to be violative of articles 14 and 16 of the constitution. the impugned rule creates a classification of persons, who were not involved in criminal cases and persons, who were involved in criminal cases. the object of creating such a classification is to ensure that only those persons, whose character and antecedents were beyond and shadow of doubt alone, are permitted entry into the police service of the state. the rule is only a reflection of the intention of the government to maintain purity of administration. the rule merely provides a check post or a filter point, to ensure that only those, who had a clean record of personal life, are admitted into the system. that the existing system, has already come under heavy dose of criticism, cannot be swept under the carpet. therefore, as an employer, the government is entitled to prescribe, especially in a disciplined force like the police force, such a restriction at the entry level. there cannot be a dispute about the proposition that an employer has the right to prescribe any qualifications for appointment to a post. if that be so, an employer has a concomitant right even to prescribe disqualifications when it comes appointment to a post. persons who were never involved in criminal cases, need not be treated as equals to or on par with persons who were involved in criminal cases merely because they are acquitted later, especially in the matter of selection to the police service of the state. the classification made between them, is not only reason able but also has a nexus with the object sought to be achieved. the employer does have the right to choose a person untainted with any allegations. the attempt made to assail the impugned rules on the ground of violation of articles 14 and 16 of the constitution is fragile. the impugned rules themselves appear to be a product of the application of the right to equality. a person, who was never involved in any criminal case, cannot be equated to a person, who was involved in a criminal case, merely because he is acquitted later, at least insofar as matters of public employment are concerned. therefore, the challenge to the impugned rule on the ground of infringement of articles. 14 and 16 of the constitution must fail - section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); appointment - state police service - disqualification of a person acquitted on benefit of doubt or discharged in a criminal case - validity? held, by virtue of explanation 1 to clause (iv) of rule 14(b) of the t.n. special police subordinate service rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the state and that the same cannot be termed as disqualified for selection to the police service of the state and that the same cannot be termed as illegal or unjustified. the reason as to why cr.p.c. does not make a distinction between an acquittal on benefit of doubt and an honourable acquittal, is to ensure that no person shall be tried for a second time for the same offence for which he is tried and convicted or acquitted once. what is provided under section 300(1) of cr.p.c. is only a reassurance of the constitutional right guaranteed under article 20(2). the principle behind this prescription under section 300 of cr.p.c. is to avoid double jeopardy to a person. if the code recognizes such a distinction, it may make inroads into this concept of double jeopardy. but the concept of double jeopardy, to some extent, is allergic to service law. in many cases the supreme court has made it clear - (i) that the imposition of a punishment and the denial of promotion did not amount to double jeopardy, and (ii) that the conviction by a criminal court and the disciplinary proceedings initiated either on the basis of conduct which let to the conviction or on pure questions of misconduct, did not amount to double jeopardy. since the concept of acquittal is an acquittal, is an off shoot of the principle of double jeopardy underlying section 300(1) of the code, it cannot be imported into service law, where the principle of double jeopardy itself is looked down upon. therefore, the explanation 1 to rule 14(b) of the impugned rules, treating a person acquitted on benefit of doubt, as a person involved in a criminal case, is only in tune with well settled principles applicable to service jurisprudence. a person discharged does not even have protection under section 300 of cr.p.c. and hence such a person cannot assail the explanation 1 to the impugned rule 14(b). - section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explantion (1); - appointment to state police service - failure of a person to disclose in the application form, either his involvement in a criminal case or pendency of a criminal case against him - effect? - held, the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. his subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. in any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the two explanations under clause (iv) of rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honourable or otherwise.orderking, j.1. the petitioners in this case are charged with murder and the preliminary enquiry into the alleged offence is in progress before the learned third presidency magistrate. prosecution witness no. 1 has been examined-in-chief, and one question has been put to him in cross-examination. at that stage petitioners' pleader applied under section 162, criminal procedure code, for a copy of p.w. no. 1's statement to the police. the learned magistrate reduced to grant it. hence this application in revision. it is little difficult to understand the precise reason for the refusal. the magistrate begins by pointing out that the one answer given by the witness in cross-examination does not establish any contradiction, but if he means by that the accused's pleader must either establish an actual instance of contradiction or lay a foundation for the belief that such a contradiction will be found if the police record is referred to, he is asking the accused's pleader to perform an impossible task : tahal saithwar v. emperor : air1931 all34 ; public prosecutor, madras v. vedi : air1930 mad185 and babar ali sardar v. emperor : air1929 cal182 .2. from what the magistrate goes on to say, however, it seems to me that he must also have refused to grant the copy because he did not himself on examining the statement perceive in it anything which contradicted the witness's evidence in court, though be does not specifically say this. this raises the question whether under section 162, criminal procedure code, it is the duty of the court to satisfy itself that a contradiction exists before granting a copy. there are two cases in which this question has considered which have been brought to my attention. one is that reported in jhari gope v. emperor : air1929 pat268 there it is clearly laid down that section 162, criminal ' procedure code, does not require the court so to satisfy itself and that subject to the provisions of the second proviso regarding any part of the statement the court must grant the copy and it is for the accused's counsel to examine it after it is granted to discover whatever contradictions may exist. the other is a full bench ruling of the rongoon high court emperor v. nga lun thaung a.i.r. 1935 rang. 370 : 158 ind. cas. 784 : (1935) cr. cas. 1088 : 36 cr.l.j. 1487 : 13 r. 570 : 8 r. rang. 202 which in a brief paragraph confirms the view that whether the court itself finds any contradiction or not in the statement, it must nevertheless grant a copy of it. the magistrate relies upon an unreported judgment of my learned brother burn, j. in criminal revision case no. 44 of 1936. it was not necessary in that case to decide this point and though, burn, j. may perhaps have given an indication of this view, he has not definitely said that a court can refuse to grant a copy if it sees no contradiction itself.3. following with respect the patna and rangoon decisions referred to above, i hold that the learned magistrate was wrong in refusing to grant the copy, and subject, to anything which he may find under the second proviso, direct him to grant it and proceed with the enquiry.

Judgment:
ORDER

King, J.

1. The petitioners in this case are charged with murder and the preliminary enquiry into the alleged offence is in progress before the learned Third Presidency Magistrate. Prosecution Witness No. 1 has been examined-in-chief, and one question has been put to him in cross-examination. At that stage petitioners' Pleader applied under Section 162, Criminal Procedure Code, for a copy of P.W. No. 1's statement to the Police. The learned Magistrate reduced to grant it. Hence this application in revision. It is little difficult to understand the precise reason for the refusal. The Magistrate begins by pointing out that the one answer given by the witness in cross-examination does not establish any contradiction, but if he means by that the accused's Pleader must either establish an actual instance of contradiction or lay a foundation for the belief that such a contradiction will be found if the Police record is referred to, he is asking the accused's Pleader to perform an impossible task : Tahal Saithwar v. Emperor : AIR1931 All34 ; Public Prosecutor, Madras v. Vedi : AIR1930 Mad185 and Babar Ali Sardar v. Emperor : AIR1929 Cal182 .

2. From what the Magistrate goes on to say, however, it seems to me that he must also have refused to grant the copy because he did not himself on examining the statement perceive in it anything which contradicted the witness's evidence in Court, though be does not specifically say this. This raises the question whether under Section 162, Criminal Procedure Code, it is the duty of the Court to satisfy itself that a contradiction exists before granting a copy. There are two cases in which this question has considered which have been brought to my attention. One is that reported in Jhari Gope v. Emperor : AIR1929 Pat268 There it is clearly laid down that Section 162, Criminal ' Procedure Code, does not require the Court so to satisfy itself and that subject to the provisions of the second proviso regarding any part of the statement the Court must grant the copy and it is for the accused's Counsel to examine it after it is granted to discover whatever contradictions may exist. The other is a Full Bench ruling of the Rongoon High Court Emperor v. Nga Lun Thaung A.I.R. 1935 Rang. 370 : 158 Ind. Cas. 784 : (1935) Cr. Cas. 1088 : 36 Cr.L.J. 1487 : 13 R. 570 : 8 R. Rang. 202 which in a brief paragraph confirms the view that whether the Court itself finds any contradiction or not in the statement, it must nevertheless grant a copy of it. The Magistrate relies upon an unreported judgment of my learned brother Burn, J. in Criminal Revision Case No. 44 of 1936. It was not necessary in that case to decide this point and though, Burn, J. may perhaps have given an indication of this view, he has not definitely said that a Court can refuse to grant a copy if it sees no contradiction itself.

3. Following with respect the Patna and Rangoon decisions referred to above, I hold that the learned Magistrate was wrong in refusing to grant the copy, and subject, to anything which he may find under the second proviso, direct him to grant it and proceed with the enquiry.