Sunil Kumar Vs. Govt. of Nct of Delhi Through Commissioner of Police, Police Head Quarters, Ip Estate, New Delhi and Another - Court Judgment

Dr. Dharam Paul Sharma, Member (J):

1. This Application assails show-cause notice (for short ‘SCN’) dated 14.3.2011 and order dated 11.4.2011 with regard to cancellation of the applicant’s candidature for the post of Constable (Executive) Male (in short ‘C(E)M’) and seeks directions to the respondents to issue letter of appointment to the applicant for the said post with all consequential benefits.

2. The applicant successfully cleared the selection process and was provisionally selected as C(E)M in Delhi Police during the recruitment process in the year 2009 but appointment was deferred pending character and antecedents verification. The applicant has already revealed in his application form his involvement in the criminal case being FIR No.118/2009 under Section 363/366 IPC in which he has been acquitted vide judgment dated 9.11.2009. The judgment reveals that the applicant was charged under Section 363/366 IPC along with one Arvind Kumar charged under Section 363/366/376 IPC on the complaint of one Shri Suva Lal S/o Shri Ram Karan that on 21.7.2009 at 8/8.30 P.M. her daughter Mintu aged 15 years had gone to ease along with her elder sister Lali. Four or five boys came on three motor cycles and put the girl Mintu on motor cycle forcibly. Lali Identified one of the accused as Ravinder S/o Billu Ahir. Later on, Mintu gave her statement under Section 164 Cr.P.C. stating therein that the applicant herein along with Arvind Kumar forcibly took her and raped. During the trial of the case, PWs, more particularly, the complainant and his victim daughter resiled from their earlier statements and turned hostile. In the result, the accused including the applicant were acquitted due to lack of evidence. The applicant’s case was referred to the Screening Committee for consideration in the light of the attending circumstances which led to the commission of offence, its nature, the grounds of acquittal, role of candidate and the court’s judgment to advise upon the applicant’s suitability for appointment in Delhi Police. The applicant’s case was not recommended by the Screening Committee, as in the opinion of the said Committee, the conduct of the applicant shows that he has no regard for law and fearlessly indulged in a shameful act, in view of which he was not found suitable for appointment in the disciplined force like Delhi Police. As per the directions issued vide PHQ’s UO Note dated 9.2.2011 in this regard, the applicant was issued a show-cause notice on 14.3.2011 proposing cancellation of the applicant’s candidature for appointment to the post of C(E)M for the reasons mentioned therein. He has submitted his reply on 28.3.2011, a copy of which is at Anexure A/3. The reply did not find favour with the respondents. Accordingly, the candidature of the applicant was cancelled vide order dated 11.5.2011 holding that he has not been found suitable for appointment to the post of C(E)M in Delhi Police upon consideration of the entire material on record and observations of the Screening Committee and contents of FIR and the role attributed to the candidate, the applicant herein.

3. The question that arises for consideration is whether the show cause notice is sustainable or, to put in other way, whether the applicant is entitled for appointment and serve Delhi Police as a C(E)M?

4. In his reply to the show cause notice, the applicant has taken as many as 27 grounds opposing the proposed cancellation. The same very grounds have been reiterated by the applicant in Para 5 of the present Application. It has thus been contended that the respondents exceeded their jurisdiction by sitting over the decision of the trial court. The respondents have selected the applicant in spite of the fact that he has already revealed his involvement in the criminal case. To deny the applicant appointment now stating that he is unfit for police force would be a violation of the applicant’s fundamental right to life. Apart from the said criminal case, there is nothing to show that the character and antecedents of the applicant are such which rendered him unfit for appointment in Delhi Police. Cancellation of the candidature would amount to a premium to the persons and authorities who illegally booked the applicant falsely for committing such crime that the applicant had never committed. The applicant has then referred to a large number of cases in support of his claim showing that a number of persons have been given appointment in Delhi Police having been involved in criminal case in which they were acquitted. Copies of some of these judgments are at Annexures A/4 to A/10.

5. Per contra, the respondents have stated in their counter reply that the cancellation of the candidature of the applicant is not merely because of his involvement in the criminal case but the case of the applicant has been examined by the Screening Committee as a part of process of verification of character and antecedents of the applicant as to his suitability for induction in the disciplined force as Delhi Police. The action of the respondents finds supports in the judgment of the Hon’ble Supreme Court in the case of DAD vs. Sushil Kumar in Civil Appeal No.13231 of 1996 decided on 4.10.1996, wherein the Hon’ble Court has observed that ‘Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though, he was physically found fit, passed the written test and interview and was provisionally selected, on account of his antecedents record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted’. ‘Though, he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of a candidate to be appointed to a service and not actual result thereof. If the actual result happened to be a particular way, the law will take care of the consequences.’ The Screening Committee observed that the applicant was involved in a case of kidnapping and rape though he was acquitted due to lack of ample evidence but his conduct shows that he has no regard for law and fearlessly indulged in a shameful act and as such, not recommended his case for appointment to the post of C(E)M in Delhi Police. The action taken by the respondents is legal and justified in the facts and circumstances of the case.

6. The applicant has filed his rejoinder wherein the averments made in the OA are reiterated besides stating that there was no charge of rape against the applicant which has wrongly been taken into consideration by the respondents.

7. At the hearing, learned counsel for the applicant strongly contended that the case foisted upon the applicant was a false one. He has been acquitted in the said case. Therefore, the applicant’s conduct cannot be blamed on account of the said case in which he was acquitted. It needs to be noted that the basic offence was alleged against someone else who was the main accused. The cases relied upon by the respondents, particularly, the one of Shri Sushil Kumar, are not relevant. The case of Shri Sushil Kumar is of concealment whereas the applicant has voluntarily disclosed the criminal case pending against him. On the other hand, there are a number of cases as has been stated by the applicant wherein the persons having been acquitted in criminal cases have been given appointments. The learned counsel for the applicant mentioned that coordinate Bench of this Tribunal in Court No.1 pronounced orders in 17 of such cases on 7th March, 2012 in which such appointments are directed to be given. The applicant’s counsel submitted copy of three of such cases. One such case is that of Shaukat Ali vs. Commissioner of Police and another (OA No.1052 of 2011). The learned counsel specifically referred to para 3 of the order dated 7.3.2012 in the case Shaukat Ali (supra) to the following extent:-

“3. As in every case, so also in this, the respondents even though may have mentioned that the case has to be examined in view of the gravity of the offence, judgment of the court, grounds of acquittal, as well as the judgment of the Hon’ble Supreme Court dated 04.10.1996 in Civil appeal No.13231 of 1996 (arising out of SLP(C) No.5340 of 1996) DAD v Sushil Kumar, but while giving reasons, nothing in that regard has been even remotely mentioned. All that has been done is that basic part of the prosecution story has been mentioned, the same has been taken as gospel truth, and on the basis of recommendations of the screening committee, the applicant has been shown the exit door”

8. It has further been submitted by the applicant’s counsel that the respondents have not considered all the relevant facts. Even the basic fact of FIR was not correct since, as a matter of fact, the victim was not a minor as stated by the complainant even kidnapping of a girl on a motorcycle is not feasible.

9. The learned counsel for the respondents on the other hand states that the case of the applicant has been considered by the Screening Committee on whose recommendations his candidature has been cancelled. The Screening Committee has considered a number of cases along with the case of the applicant and depending upon the facts of each case made recommendations for appointment in some and not in other cases. Thus consideration of the candidature of the applicant has not merely because of his involvement in a criminal case but on verification of his character and antecedents by the Screening Committee from established procedure in this regard by the respondents. The learned counsel referred to in this regard to case of Commissioner of Police vs. Ranvir Singh in Writ Petition (Civil) No.6518/2011 decided on 20.12.2011 wherein the Hon’ble High Court of Delhi, inter alia, observed that ‘a candidate whom the experts in the Screening Committee have found unfit for serving in the police cannot be thrust on the police and the same if done may not only instill a false feeling of bravado and confidence in respondent, detrimental to his functioning in the police but may also affect the morale of the police department. No undue weightage can be given to the factum of the respondent being acquitted of the criminal charge. Just like such acquittal has been held not to impact the departmental inquiry proceedings on the same charge, for the reason of test of proof being different in the two proceedings, similarly in the matter of employment also, an acquittal of a criminal charge cannot be allowed to wash away the said charge or to place a person in the same position as if never had been charged.’ The Hon’ble High Court further held that the petitioner, the Commissioner of Police, was thus fully entitled to consider the factum of the charge against the respondent even though ultimately acquitted thereof in assessing suitability of the respondent for induction in the police force. The learned counsel for the respondents submitted File No.XII/39/10 R.Cell/PHQ AC-VII pertaining to the case of the applicant for our perusal. He submitted that minutes of the Screening Committee would reveal that a large number of cases of candidates provisionally selected but involved in criminal cases and acquitted have been considered. The fact that the Screening Committee recommended some of them for appointments and not others indicates application of mind by the Screening Committee to the facts of each case before making its recommendations in the matter. The applicant has thus been considered and found unfit for induction in the service of the police force based on the result of the verification of his character and antecedents. The same is within the competence of the respondents and OA is, therefore, liable to be dismissed as such.

10. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case.

11. A large number of cases have been cited by both the parties in support of their respective stand for and against the cancellation of the candidature of the applicant. A perusal of all these cases reveal that whereas on the one hand appointments have been given by Delhi Police either on their own or under the directions of the Court to persons/candidates involved in criminal case in which they were acquitted and on the other hand, the candidatures of a number of persons provisionally selected, involved in criminal cases in which they were acquitted were cancelled by the respondents ‘Delhi Police in legitimate exercise of their power to assess the suitability of the candidates upon verification of their character and antecedents and the same have been duly upheld by the courts when challenged. The question of acquittal in a criminal case is thus not decisive of the question as to whether a person so acquitted is entitled as a matter of right to have appointment based on such acquittal. Even after his acquittal in a criminal case, the rights of the respondents’ Delhi Police is not taken away to assess the suitability of a candidate for induction in its service based on the result of the verification of the candidate’s character and antecedents. Where the respondents ‘Delhi Police erred in exercising this right properly and correctly, the same is amenable to correction in exercise of power of judicial review by the courts. Nevertheless, the right to assess the suitability of a person having regard to his character and antecedents remains vested in Delhi Police. In Vinod Kumar vs. Commissioner of Police in Writ Petition (Civil) No.8752/2011 decided on 16.11.2011, the Delhi High Court held that the Court cannot interfere in the assessment made by the Delhi Police as employer, as to who is suitable and who is not for serving in the force which is required to constantly interact and render assistance to public’. Though the Courts have dealt with various dimensions of the subject under consideration and related issues and made observations in the context thereof with regard to the principles of law in respect thereof, yet, in the ultimate analysis, the decision in a given case turned out to be on the facts and circumstances of each case. It is, therefore, difficult to cull out any principle having uniform application de hors the facts and circumstances of a given case. Tendencies exhibited by an individual by his conduct are of prime importance in assessing his suitability for induction in the service of Delhi Police entrusted with the responsibility of enforcing the law and order in the society. If a person without having the authority of law and the State power has shown inclination to flout the law, he may play havoc when entrusted with wide powers of State and law, demeaning the public image of the police as a law enforcement agency and shaking the public faith and trust in established institution of the disciplined force. Such matters may, therefore, be dealt with due care and caution for induction of an unsuitable person in the force may have widespread repercussion. All relevant facts need to be given due consideration. Acquittal in a criminal case is one such factor. However, it is not the sole factor decisive of the issue. There are lot of many other factors that ought to be given due consideration while making assessment with regard to suitability of a person for induction in Delhi Police, i.e., the nature and gravity of offence alleged to have been committed, facts and circumstances of the case, the order of acquittal, the age, character, antecedents, tendency and attitude exhibited in his conduct etc. If upon fair consideration of all such relevant factors, the administrative authorities have come to the conclusion as to the suitability of a candidate for induction in the service of Delhi Police, the same should be accorded the respect which it deserves, though, of course, subject to its judicial review like any other administrative decisions. With a view to avoid an element of arbitrariness on the one hand and to provide transparency in such cases on the other, the Delhi Police has now framed Policy for Deciding the Cases for Candidates Provisionally Selected in Delhi Police, Involved in Criminal cases (Facing Trial or Acquitted) vide Standing Order No.398/2010 dated 23.11.2010. The said Policy provides for reference of such candidates to the Screening Committee to assess suitability for appointment. It may thus be seen that such candidates are merely not rejected for being involved in a criminal case in which they are ultimately acquitted. In spite of such involvement in a criminal case, a mechanism has been set up to asses their suitability for taking into consideration all the relevant facts by a body of experts so as to inculcate an element of trust and faith in its impartial and independent working.

12. In the present case, the applicant’s case was considered by the Screening Committee in its meeting held on 7.1.2011. The Committee consisted of the Special CP (Administration) as its Chairman, besides Joint CP/Headquarters and Joint CP/Vigilance as Members. The said Committee considered 27 cases in all in its meeting. Out of these 27, 14 cases were recommended for appointments and in 13 cases, the Committee did not recommend appointment. The case of the applicant falls in later category. His case was at serial No.13. In the considered opinion of the Committee, though the applicant was acquitted for lack of ample evidence, his conduct shows that he has no regard for law and fearlessly indulged in a case which the society treats as a shameful act. The Committee therefore did not find him fit to be appointed in Delhi Police and accordingly had not recommended his case. The very fact that out of 27 candidates whose cases were examined by the Screening Committee, 14 have been recommended for appointments shows the application of mind by the Screening Committee.

13. The case of the applicant is comparable with the case of Mahesh Dahiya vs. Govt. of NCT of Delhi and anr., in Writ Petition (Civil) No.6145/2010 decided on 10.09.2010 by the Delhi High Court in material particulars. In that case, the petitioner’s counsel vehemently urged that since the petitioner has been acquitted in a criminal trial, he could not be deprived the employment. The Court did not concur for the reason, inter alia, that the acquittal of the petitioner was on account of principal players turning hostile. The Court observed that burden of proof in criminal case being one of beyond reasonable doubt would not mean that the evidence cannot be kept in mind for purposes of deciding the propensity, criminal tendencies etc. of a person. If there is enough residuary evidence which throws negative light upon the petitioner, it would be justifiable ground to deny him appointment in Delhi Police. That was the case where the petitioner, along with co-accused, was charged for kidnapping a minor girl for ransom. In that case also, the statement of witness was recorded under Section 164 Cr.P.C. in which she indicted the petitioner along with co-accused. However, in trial, she turned hostile. Firstly, the social stigma which unfortunately gets attached to a girl victim of a crime of being in the custody of a male for a couple of days before she was rescued may have led the family to re-think on the issue. Second reason could be that the witnesses might have been suborned. Without going in the reasons as to why the victim did not stand on her statement under Section 164 Cr.P.C. and why father and brother turned hostile, but keeping in view the quality and nature of residuary evidence, the High Court held that there were justifiable grounds to deny appointment to the petitioner as a Constable in Delhi Police. In the present case too, FIR No.118/09 dated 21.7.2009 under Section 363/366/376 IPC was registered on the complaint of one Suva Lal, who reported that on 21.7.2009 her daughter Mintu aged 15 years had gone to ease along with her elder sister Lali at 8/8.30 P.M., 4/5 boys came on three motor cycles and put the girl Mintu on motor cycle forcibly. The applicant was not named in the Fir. His name was revealed by the victim girl in her statement recorded under Section 164 Cr.P.C. After investigation of the case, the police filed final report recommended prosecution of the applicant along with co-accused under Section 363/366 of IPC. The co-accused was also charged under Section 376 of IPC. After hearing the parties, the applicant was charged along with the co-accused. However, both the victim girl and her father upon whose complaint, FIR was lodged turned hostile. The applicant was accordingly acquitted for lack of ample evidence. The fact that the principal witnesses turning hostile may be good enough for acquittal of the applicant as the standard of proof required in criminal case is one that beyond reasonable doubt. However, the facts and circumstances of the case may yet throw negative light upon the applicant. That may be relevant in determining the propensity and criminal tendency of a person. The nature and quality of evidence in a case may still be relevant for the respondents in determining if there are justifiable grounds to deny the applicant employment with the respondents. The case was registered on the complaint of a father of a victim girl alleging kidnapping and rape of his daughter. The involvement of the applicant would reveal by the victim girl in her statement recorded under Section 164 Cr.P.C. There is no explanation as to why the father lodged the complaint in the first instance and why the victim girl named the applicant for his involvement in the alleged offence in her statement recorded under Section 164 of Code of Criminal Procedure. Keeping in view the offence, its quality and nature and other relevant factors, the respondents upon due consideration found the applicant unsuitable for appointment in its force. We do not find any warrant to interfere with it.

14. In the facts and circumstances of the case and for the reasons stated above, we accordingly dismiss the application. No costs.