and the downtrodden are hardly given the opportunity to sharpen their
intellect thereby diminishing the ability of their consciousness to act as a
mirror to their acts and actions, it is high time that the executive brings into
place a policy where summary/ordinary conviction should not be treated as a
conviction for entry or retention in government service.
33. Till then, it would be the duty of the Court to interpret the law by
harmonizing human sufferings and human wants, delinquencies and criminal
tendencies; conscious of the fact that passengers on Spaceship Earth are the
rich and the poor, the needy and the well-off, the hungry and the well-fed,
the educated and the uneducated. The need of the hour is to understand that
criminals are not born and are not irredeemable brutes. Crime may be a
disease but not the criminal, who are a kind of psychic patients and to
understand, that anti-social maladies are mostly the result of social
imbalances. It must be remembered that on the one hand, social stresses, for
various reasons, explosively mount in the real world’s hard environs and the
harsh remedy of heartless incarceration and ouster from society deepens the
criminality. The swing of the pendulum to the humanist side requires
respect for the worth of personhood and the right of every man and woman
in its residual human essence.
34. We have discussed hereinabove the necessity to harmonize the
various social imbalances and in particular in favour of those who have been
denied the opportunity of developing their consciousness and thereby being
deprived of their conscious acting as a mirror to their acts. We have
highlighted as to how in various jurisdictions abroad the issue is dealt with.
We have discussed hereinabove the deliberations at the ‘All India Seminar
on Correctional Service’ where emphasis for re-habilitation of ex-convicts,
committing minor offences, by induction in public service was accorded
primacy in the deliberations.
A criminal record is a record of a person's criminal history, generally
used by potential employers to assess the candidate’s trustworthiness. The
information included in a criminal record varies between countries and even
between jurisdictions within a country. In most cases it lists all nonexpunged
criminal offenses and may also include traffic offenses such as
speeding and drunk-driving. In some countries the record is limited to actual
convictions (where the individual has pleaded guilty or been declared guilty
by a qualified court) while in others it also includes arrests, charges
dismissed, charges pending and even charges of which the individual has
been acquitted. The latter policy is often argued to be a human
rights violation since it works contrary to the presumption of innocence by
exposing people to discrimination on the basis of unproven allegations.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Delivered on : July 15, 2016
W.P.(C) 11979/2015
MANOJ
v
UOI & ORS
CORAM:
HON’BLE MR. JUSTICE PRADEEP NANDRAJOG
HON’BLE MS. JUSTICE PRATIBHA RANI
1. Charge sheeted before a criminal court but finally acquitted, whether
by way of benefit of doubt or honourably – would it be a relevant
consideration in appraising the suitability of a candidate who successfully
clears the selection process to be appointed to an armed force of the Union,
is the question which arises for consideration in the instant writ petition.
2. Successfully clearing the selection process to be appointed as a
Constable (GD) in a Central Armed Police Force, as per marks obtained by
him and keeping in view his preference, the petitioner was offered
appointment as a Constable (GD) in CISF and was called upon to fill the
enrolment form. In the column applicable where the candidates had to
disclose whether they were an accused in any criminal case, the petitioner
dutifully informed that the was a co-accused in FIR No.2011 dated July 05,
2008 registered with PS Narnaund (Hissar) for offences punishable under
Section 323/324/307/120-B/34 IPC. He disclosed that he had been acquitted
by the learned Additional Sessions Judge vide judgment dated December 19,
2008.
3. It is thus not a case of concealment.
4. On February 23, 2015 the offer of appointment was withdrawn. It
was based on the report by the Screening Committee which opined that on
account of the petitioner being an accused in the FIR aforenoted,
notwithstanding he being acquitted, his character antecedents did not justify
petitioner’s appointment as a Constable in an armed force of the Union.
5. The petitioner has filed the instant petition and relies upon a recent
judgment of the Supreme Court reported as (2015) 2 SCC 377 Jogender
Singh Vs. UT of Chandigarh & Ors. wherein Jogender Singh who was
acquitted at a criminal trial for an offence of constituting an unlawful
assembly and causing simple and grievous hurt to persons as also attempting
to murder a person was held entitled to be appointed as a Constable in the
Union Territory of Delhi. The decision shows that the acquittal was on
account of the fact that the witnesses could not identify the assailants and
stated that their signatures were obtained on a blank sheet of paper by the
Investigating Officer. Even the injured eye witnesses did not support the
case of the prosecution. With reference to the decision reported as 2013 (1)
SCC 598 Insp.General of Police Vs. S.Samuthiram the Supreme Court held
that an acquittal would be ‘honourable’ in every sense when the prosecution
leads full evidence but miserably fails to prove the charge. The decision of
the Punjab and Haryana High Court dismissing writ petition filed by
Jogender Singh against the decision to deny him employment as a Constable
was reversed. The Supreme Court held that the past alleged conduct of
Jogender Singh was irrelevant.
6. Learned counsel for the respondents heavily relied upon the decision
of another Division Bench of the Supreme Court reported as (2013) 7 SCC
685 Commissioner of Police New Delhi Vs. Mehar Singh where a decision
of this Court in favour of Mehar Singh who was likewise charged for a
criminal offence but acquitted at the trial but was denied employment as a
constable in Delhi Police was reversed by the Supreme Court in which
opinion in paragraph 26 and 35 the Supreme Court observed as under:-
“26. In light of above, we are of the opinion that since the
purpose of departmental proceedings is to keep persons, who
are guilty of serious misconduct or dereliction of duty or who
are guilty of grave cases of moral turpitude, out of the
department, if found necessary, because they pollute the
department, surely the above principles will apply with more
vigour at the point of entry of a person in the police department
i.e. at the time of recruitment. If it is found by the Screening
Committee that the person against whom a serious case
involving moral turpitude is registered is discharged on
technical grounds or is acquitted of the same charge but the
acquittal is not honourable, the Screening Committee would be
entitled to cancel his candidature. Stricter norms need to be
applied while appointing persons in a disciplinary force
because public interest is involved in it.
x x x
35. The police force is a disciplined force. It shoulders the
great responsibility of maintaining law and order and public
order in the society. People repose great faith and confidence
in it. It must be worthy of that confidence. A candidate wishing
to join the police force must be a person of utmost rectitude. He
must have impeccable character and integrity. A person having
criminal antecedents will not fit in this category. Even if he is
acquitted or discharged in the criminal case, that acquittal or
discharge order will have to be examined to see whether he has
been completely exonerated in the case because even a
possibility of his taking to the life of crimes poses a threat to the
discipline of the police force. The Standing Order, therefore,
has entrusted the task of taking decisions in these matters to the
Screening Committee. The decision of the Screening Committee
must be taken as final unless it is mala fide. In recent times, the
image of the police force is tarnished. Instances of police
personnel behaving in a wayward manner by misusing power
are in public domain and are a matter of concern. The
reputation of the police force has taken a beating. In such a
situation, we would not like to dilute the importance and
efficacy of a mechanism like the Screening Committee created
by the Delhi Police to ensure that persons who are likely to
erode its credibility do not enter the police force. At the same
time, the Screening Committee must be alive to the importance
of trust reposed in it and must treat all candidates with even
hand.”
7. Relevant would it be to highlight that in para 25 of the decision in
Mehar Singh’s case the Supreme Court referred to the concept of honourable
acquittal as was culled out by the Supreme Court in S.Samuthiram’s case
(supra).
8. The decision in S.Samuthiram’s case (supra) brings out that where
key witnesses were not examined and it was a cases of acquittal, the
acquittal would not be honourable because the prosecution did not lead its
best evidence. But where the prosecution leads its best evidence and its star
witnesses failed resulting in an acquittal, it would be a case of an honourable
acquittal.
9. Thus, we find no conflict between the decision of the Supreme Court
in Mehar Singh’s case and Jogender Singh’s case. The ratio is common.
Where the acquittal is not an honourable acquittal, in that, the prosecution
does not produce its material witnesses resulting in an acquittal, the factum
of acquittal would be irrelevant and the department would be justified in
appraising the character of a candidate with reference to his involvement in
a crime and look into such material which was gathered by the police during
investigation. But where the acquittal is after the prosecution has examined
all its witnesses it would be case of an honourable acquittal as was in the
case of Jogender Singh.
10. In the instant case the decision by the learned Additional Sessions
Judge acquitting the petitioner and three co-accused, copy whereof has been
filed as Annexure P-6 with the writ petition would show that the FIR was
registered on the statement of one Rajpal in which he had named the
petitioner and three other co-accused stating that accused No.1 Ramphal
and accused No.4 Ved Prakash had animosity towards him because there
was an altercation between him and them during a marriage at Village Moth
on April 04, 2008 the said two persons along with the petitioner and one
Sandeep gave beating to his brother Rakesh using iron rods and lathis.
11. At the trial Rajpal appeared as PW-1 and stated that the police took
his signatures on blank papers. He denied having named any accused before
the police. The injured Rakesh Kumar appeared as PW-2, admitting being
injured he did not name the four accused as the ones who assaulted him.
The prosecution examined all its witnesses. All evidence was led. The
acquittal is thus honourable.
12. We need to highlight at this stage that when the incident took place
the petitioner was 18 years and 4 months of age. Coming from a rural
background where cast fraternity compels members of the society to act
under the pressures of elders, assuming for the sake of argument that the
petitioner did join in the assault to injure Rakesh, from the charge sheet laid
we find that the motive attributed was to Ramphal and Ved Prakash. It
would obviously be a case of the petitioner joining members of his fraternity
under patriarchal pressure, if at all the petitioner was involved.
13. It is no doubt true that police plays an essential role of enforcement of
law and order in modern societies. Without an efficient police force, a
society would become anarchic. To ensure that the police force of a state is
efficient, the state must ensure that each individual recruited to the police
force, at whatever level, must possess the following attributes:-
(a) Physical Strength and fitness/Free from medical diseases.
(b) Emotional maturity, and ability to remain calm in emotionally
charged situations.
(c) Ability to exercise initiative in their work.
(d) Good moral character and integrity.
(e) The ability to carry a great deal of responsibility in handling
difficult situations alone/ dependability.
(f) Good Judgment
14. Keeping in view the above attributes, which are the minimum
required of a person who becomes a member of the police force, it becomes
the duty of the State to carefully screen the candidates with reference to the
aforesaid attributes. But, what we find in India is that the only screening
done is with respect to the moral character and integrity, physical strength
and free from medical disease. Evidenced by the instant case, the first
attribute is sought to be verified by archaic means i.e. checking on the police
dossiers or relying upon information provided by the candidate himself and
the second, of physical strength, by subjecting the candidates to a physical
test, and of being free from medical disease by conducting the medical
examination. No evaluation pertaining to the emotional maturity, ability to
remain calm in emotionally charged situations, ability to handle difficult
situations and be responsive and the ability of initiative in work is
conducted.
15. We find that in some jurisdictions abroad, such as United States of
America, Canada, Philippines, to name a few, a psychological test is
conducted to ascertain the suitability of candidates commensurate to the
nature of job they are being inducted to. At times a polygraph test is also
conducted to check the deceiving tendencies of candidates. Because so much
public trust is placed in peace officers, candidates for these positions are
carefully screened to rule out emotional instability, poor judgment, lack of
dependability, or other problems which might negatively affect their law
enforcement work.
16. A criminal record is a record of a person's criminal history, generally
used by potential employers to assess the candidate’s trustworthiness. The
information included in a criminal record varies between countries and even
between jurisdictions within a country. In most cases it lists all nonexpunged
criminal offenses and may also include traffic offenses such as
speeding and drunk-driving. In some countries the record is limited to actual
convictions (where the individual has pleaded guilty or been declared guilty
by a qualified court) while in others it also includes arrests, charges
dismissed, charges pending and even charges of which the individual has
been acquitted. The latter policy is often argued to be a human
rights violation since it works contrary to the presumption of innocence by
exposing people to discrimination on the basis of unproven allegations.
17. It is unfortunate that in India we are not marching ahead in the comity
of nations and prefer to be governed by the recruitment processes which are
a legacy of the British era; ignoring that the purpose of governance then was
to rule and the purpose of governance now is to serve.
18. Now, a man can be booked for the offence of over-speeding and
perhaps may be convicted for parking his motor vehicle in a non-parking
area. Would this man be of a character, compelling in public interest and for
public good, not to induct him in public service? The answer would be in
the negative. As against that, a man has committed murder or has broken
into a departmental store and stolen cash. Would this man be of a character,
compelling in public interest and for public good, not to induct him in public
service. The answer would be in the affirmative.
19. Not to induct persons with a criminal background in public service, is
based on the premise that considerations of public policy, concern for public
interest, regard for public good would justify a prohibition. Thus, the
primary consideration is, whether public interest and public good would be
jeopardized if a person with a criminal background is inducted in public
service. And this takes us straight to the core of the issue, whether brush
with penal law would justify the eyes to be closed against the offender or
only such brush with penal law which is of a higher degree of criminality. If
the answer is in the negative, the further question: what should be the higher
degree of criminality which would justify the eyes being shut to such person
needs to be addressed.
20. With respect to the first two examples given by us in para 18 above,
none would argue that for such trivial offences the eyes must be shut against
the offender, and with regard to the next two, everybody would agree that
the eyes should be shut to such a person who has to be ignored. We concede
that the examples are in the extreme, but they certainly help us in
understanding as to the process of reasoning required to be adopted to
decide as to on which side of the border-line a case would fall.
21. A look at the penal laws in India would show that most of the penal
offences can be categorized under two broad categories i.e. felony and
misdemeanour. A further look at the sections stipulating penalties would
show that felonies are treated as more grave vis-à-vis misdemeanours.
Further, by classifying offences as cognizable and non-cognizable, higher
and lower degrees of criminality to the offences can be discerned. Further,
by classifying offences as bailable and non-bailable, the degree of
criminality can be further discerned.
22. The civil concept of an offence being of a depraving character is to
look at whether the act complained of suffers from the tag of a moral
turpitude or not.
23. We do not intend to make a catalogue of reported decisions as to what
misdemeanours should normally attract the penalty of removal or dismissal
from service. We may simply state that with respect to conviction for grave
and serious offences alone, on the anvil of public interest and for public
good, Courts have held that the offender has rendered himself unfit to
continue in office and in extreme cases summary dismissal or removal from
service by invoking Article 311 of the Constitution is also held justified.
24. Thus, we have a guideline of serious and grave offences being the
touchstone in case of the door being shown to the government servant.
25. Looking through the prism of case law pertaining to when can the
door be shown to a government servant and by doing reverse engineering we
can safely say that what is good for the door to be shown, is good for
prohibiting entry through the door, and thus while denying public
employment with respect to the offence committed by a person, it can be
said, and we say so, that it may be a serious violation of the constitutional
right of a citizen to be fairly treated in the matter of public employment if
trivial offences committed by the citizen would justify the State shutting its
eyes and denying employment.
26. We have a clue; of offences being grave, serious and involving a
moral turpitude justifying public employment not being given. These would
certainly not justify the offender being inducted into public service. None
would disagree that convicted and fined for parking a car in a no-parking
area or convicted for over-speeding would attract the de minimis principle,
but the problem would be in cases closer to the borderline. For therein
would lie the problem as to in which side of the boundary line should they
be categorized.
27. It is unfortunate that in India, the Government does not come out with
white papers of the deliberations at various seminars, but we find a reference
made to the ‘All India Seminar on Correctional Service’ held at New Delhi
in March 1969, to consider and lay guidelines pertaining to the problem of
rehabilitation of ex-convicts, with emphasis on the need for their
employment under the government. Vide OM dated 2.2.1973, No.6857-
GSI-72-2755, the State of Haryana has listed the penal offences which have
been treated as grave, serious and involving moral turpitude. The said OM
lists the under-noted penal offences as grave, serious and involving moral
turpitude, disentitling the convict to public employment; the offences are:-
Sections 120-A, 121-A, 122 to 124, 161, 161-1A, 165, 167, 181, 182, 193 to
201, 205, 209, 293, 302, 304, 307, 354, 359, 362, 363 to 366, 366-A, 366-B,
367 to 373, 376, 377, 379, 380, 391, 392, 398 to 400, 403, 404, 406 to 409,
417 to 421, 449, 450, 453 to 458, 465 to 468, 471 to 476, 477-A, 489-A,
489-B, 489-C, 489-D, 489-E, 493 to 498 of the Penal Code.
28. We are a little surprised at the list as it excludes offences such as
promoting enmity or doing acts prejudicial to maintenance of harmony i.e.
offences punishable under Section 153-A IPC. It excludes offences
pertaining to mutiny and its abetment i.e. offences under Sections 131 to 136
IPC. But we do not comment. However, what we find is, the common
thread of including all offences against women and such offences which are
punishable with imprisonment for life as also imprisonment for a term
exceeding three years and above. We get a clue. Offences which do not
carry a mandatory sentence of imprisonment and it to be imprisoned the
term is less than 3 years and the offender can be let off with payment of fine,
are not included in the said list. It is an undisputed fact that there are no
rules to guide the authorities in Delhi Police as to in what cases despite
acquittal, the person can be kept out of service or can be deprived of
employment.
29. That apart, as generically understood, offences involving moral
turpitude can be classified with reference to the act being one which shocks
the moral conscience of the society in general and this can be determined
with reference to the motive of the offender i.e. whether the motive which
led to the act was a base one or alternatively whether on account of the act
having been committed the perpetrator could be considered to be of a
depraved character or a person who was to be looked down upon by the
society.
30. Today, with plea bargaining being a well-recognized facet of the
administration of criminal law and a part of criminal jurisprudence in India,
we do perceive a large number of cases involving thousands and thousands
throughout the country, appearing before the Summary Courts and paying
small amounts of fine, more often than not, as a measure of plea bargaining.
Foremost would be amongst them petty crimes committed mostly by the
young and/or the inexperienced. Some may even undergo a petty sentence
of imprisonment of a week or ten days. We may also notice that Section
302 Cr.P.C. prescribes for taking note of compoundable offences at the
instance of the complainant itself and there are cases where compounding
can take place with the permission of the Court.
31. Life is too precious to be staked over petty incidents and the cruel
result of conviction for petty offences being the end of the career, the future
and the present, of young and inexperienced persons cannot blast their life
and their dreams.
32. In a growing democracy, where the systems are failing and the weak
and the downtrodden are hardly given the opportunity to sharpen their
intellect thereby diminishing the ability of their consciousness to act as a
mirror to their acts and actions, it is high time that the executive brings into
place a policy where summary/ordinary conviction should not be treated as a
conviction for entry or retention in government service.
33. Till then, it would be the duty of the Court to interpret the law by
harmonizing human sufferings and human wants, delinquencies and criminal
tendencies; conscious of the fact that passengers on Spaceship Earth are the
rich and the poor, the needy and the well-off, the hungry and the well-fed,
the educated and the uneducated. The need of the hour is to understand that
criminals are not born and are not irredeemable brutes. Crime may be a
disease but not the criminal, who are a kind of psychic patients and to
understand, that anti-social maladies are mostly the result of social
imbalances. It must be remembered that on the one hand, social stresses, for
various reasons, explosively mount in the real world’s hard environs and the
harsh remedy of heartless incarceration and ouster from society deepens the
criminality. The swing of the pendulum to the humanist side requires
respect for the worth of personhood and the right of every man and woman
in its residual human essence.
34. We have discussed hereinabove the necessity to harmonize the
various social imbalances and in particular in favour of those who have been
denied the opportunity of developing their consciousness and thereby being
deprived of their conscious acting as a mirror to their acts. We have
highlighted as to how in various jurisdictions abroad the issue is dealt with.
We have discussed hereinabove the deliberations at the ‘All India Seminar
on Correctional Service’ where emphasis for re-habilitation of ex-convicts,
committing minor offences, by induction in public service was accorded
primacy in the deliberations.
35. It would be advisable for the petitioner to devise a selection procedure
by subjecting those who are desirous of seeking employment under the
Police to the various tests which we have noted in para 13 above and which
we have culled out from jurisprudence followed in matured democracies.
36. The writ petition is accordingly allowed.
37. The impugned order dated February 23, 2015 is set aside and a
direction is issued that the petitioner be inducted into service as a Constable
with CISF. The petitioner would be entitled to all benefits of seniority and
continuity into service with effect from the date the person immediately
beneath the petitioner in the empanelled list was made to join. Arrears of
salary need not be paid.
38. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
JULY 15, 2016
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