IMTIYAZ AHMAD MALLA vs. THE STATE OF JAMMU AND KASHMIR

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (C) NO. 678 OF 2021 IMTIYAZ AHMAD MALLA .... PETITIONER VERSUS THE STATE OF JAMMU AND KASHMIR AND OTHERS .... RESPONDENTS J U D G M E N T BELA M. TRIVEDI, J. 1. The instant special leave petition is directed against the Judgment and Order dated 09.08.2019 passed by the High Court of Jammu and Kashmir at Srinagar in LPASW No. 71 of 2018, whereby the High Court has dismissed the appeal filed by the petitioner- appellant and confirmed the order dated 14.05.2018 passed by the Single Bench dismissing the SWP No. 1766 of 2017. 2. Briefly stated, the petitioner had successfully participated in the selection process conducted in 2008-2009 for the post of constable in the Jammu and Kashmir Executive Police, and he Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2023.02.28 16:01:20 IST Reason: was issued an appointment letter dated 20.08.2009. The petitioner thereafter was deputed to the Police Training School, Manigam for 1 undergoing the nine months BRTC course. It appears that thereafter the search slips of the ten newly recruited constables including the petitioner, were sent to the Director, Finger Print Bureau (CPPB) and NCRB East, New Delhi, for record and reference purpose, and the said Bureau vide the letter dated 07.12.2009 responded that the petitioner was involved in a case registered as FIR No. 52/2007 under Section 379 of Ranbir Penal Code (RPC) and Section 6 of Forest Act, at the Police Station, Kralgund. The said case was stated to be pending before the Chief Judicial Magistrate, Handwara. The matter was taken up with the Deputy Inspector General of Police, NKR, Baramulla, by the Police District Headquarter, Handwara, for cancellation of the selection of the petitioner. During the course of inquiry, a summary of allegations and charge-sheet were served to the petitioner. It was alleged that in the said criminal case, the petitioner was released on bail after four days of his arrest, and therefore the petitioner had good knowledge of his involvement in the criminal case and that he had consciously concealed the said information. It was also found during the course of inquiry that the petitioner had shown his residence at village Gundchobotra instead of Pakhribal in order to get a clean chit at the time of police verification. Under the 2 circumstances, the appointment order dated 20.08.2009 of the petitioner was cancelled by the order dated 01.03.2010. 3. The petitioner challenged the said order of cancellation of his appointment by filing the writ petition being SWP No. 2616 of 2011 in the High Court. In the meantime, the petitioner was tried and acquitted in the criminal case by the Court of Chief Judicial Magistrate, Handwara vide the Judgment dated 26.04.2011. The said petition therefore came to be disposed of vide the order dated 18.05.2016 whereby the impugned order dated 01.03.2010 was set aside by the High Court. It was directed to the concerned respondent to take further action in view of the communication dated 27.02.2012 which in respect of the other persons similarly situated as the petitioner. On the reconsideration, the Director General of Police, Jammu and Kashmir, Srinagar, passed the order dated 31.07.2017 stating inter alia that in view of the criminal background of the petitioner, he was found unsuitable for the post of constable in the disciplined force. 4. Being aggrieved by the said order dated 31.07.2017, the petitioner filed the writ petition being SWP No. 1766 of 2017 seeking reinstatement with consequential benefits. The said writ petition came to be dismissed by the Single Bench vide the judgment and order dated 14.05.2018, whereby the Single Bench placing reliance on the decision of Union Territory, Chandigarh 3 1 Administration And Others Vs. Pradeep Kumar And Another , held that the decision of the Director General of Police, the highest functionary in the hierarchy of police department, to consider the suitability of the appellant for induction into police force, could not be called into question. The aggrieved petitioner therefore filed the LPA, which came to be dismissed by the Division Bench vide the impugned order. 5. Though the matter was argued at length by the learned counsels for the parties, the precise question that falls for consideration before this Court is whether the Director General of Police, Jammu & Kashmir, Srinagar, who after examining the record of the petitioner had come to the conclusion that the petitioner was not a fit person to hold the post into the police force in view of his criminal background, could be compelled to reinstate the petitioner on his acquittal in the criminal case. 6. It was sought to be submitted by the learned counsel for the petitioner that in the criminal trial proceeded against the petitioner, the prosecution had failed to examine the investigating officer and also failed to bring home the charges levelled against him, and therefore his acquittal in the said case was required to be treated as an honorable acquittal. He further submitted that the very basis for presuming that the petitioner had a criminal background was no 1 (2018) 1 SCC 797 4 more available to the respondents, on his having been acquitted by the competent criminal court. 7. In order to appreciate the said submission made by the learned counsel for the petitioner, it would be relevant to reproduce the relevant part of the judgment dated 26.04.2011 passed by the Court of Chief Judicial Magistrate, Handwara, whereby the petitioner was acquitted from the charges levelled against him. “That the I.O. has not been produced and examined which is legal infirmity in the prosecution case as material contradictions have not been answered nor the site plan has been proved. Further, the seizure of timber has not been proved by the witnesses. None of witnesses has deposed that accused committed theft in the forest and willow trees were found in possession of the accused persons. On the basis of contradictory evidence accused cannot be convicted, as benefit of doubt goes to the accused. Prosecution has miserably failed to fulfill the ingredients of section 379 RPC, 6 F.Act against the accused persons. So, prosecution case fails. Challan is dismissed. Accused are acquitted of the charges for the commission of offence under section 379 RPC 6 F.Act. Accused are on bail. Their bail bonds and personal bonds stand discharged. Since the confiscation proceedings were initiated by the Forest department, timber has been disposed of. Challan be consigned to records after due completion.” 8. Apart from the fact that the phrase “honourable acquittal” has not been defined anywhere in the Criminal Procedure Code, as transpiring from the afore-stated order passed in the criminal case for which the petitioner was tried, the petitioner was afforded a benefit of doubt in view of the contradictory evidence which had 5 come on record, also as the investigating officer was not examined by the prosecution. 9. In case of Commissioner of Police, New Delhi and Another Vs. 2 Mehar Singh , this Court on similar issues as involved in the

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10. It was further observed therein that if the Screening Committee’s decision was not mala fide or actuated by extraneous

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11. The expression “honourable acquittal” had also come up for consideration in other cases namely, Management of Reserve 3 Bank of India, New Delhi Vs. Bhopal Singh Panchal ; and in 4 R.P. Kapur Vs. Union of India and Another whereby it was held inter alia that the mere acquittal does not entitle an employee to the reinstatement in service. The acquittal, it was held, has to be honourable. As such, the expressions “honourable acquittal”, “acquitted of blame”, “fully exonerated” are unknown to the Code of Criminal Procedure or the Penal Code, and it is difficult to define precisely what is meant by expressions “honourable acquittal”. 12. In Pradeep Kumar’s case (supra) also it was reiterated that if a person is acquitted or discharged, it cannot obviously be inferred that he was falsely involved, or he had no criminal antecedents. The precise observations made therein are re-produced hereunder: “ 10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the post concerned. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Inspector General of Police v. S. Samuthiram [ Inspector General of Police v. S. 3 (1994) 1 SCC 541 4 AIR 1964 SC 787 9

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13. As regards the suppression of relevant information or false information with regard to the criminal prosecution, arrest or pendency of criminal case against the candidate, a three-judge Bench of this Court in Avtar Singh Vs. Union of India and 5 Others has laid down the precise guidelines. Para 38.5 thereof

14. In all the above cases, the requirement of integrity and high standard of conduct in police force has been highly emphasised. The High Court in the impugned judgement has also elaborately dealt with each and every aspect of the issues involved, while upholding the order of the Single Bench to the effect that the Director General being the highest functionary in the police hierarchy, was the best judge to consider the suitability of the petitioner for induction into the police force. The impugned order being just and proper, we are not inclined to interfere with the 5 (2016) 8 SCC 471 11 same in exercise of our jurisdiction under Article 136 of the Constitution of India. 15. It is well settled position of law that though the scope of Article 136 of Constitution of India is very wide, the power conferred thereunder being a very special and extraordinary power, it has to be exercised in rare and exceptional cases. Since, we do not find any infirmity or illegality in the impugned order passed by the High Court, the present petition deserves to be dismissed and is accordingly dismissed. . .………………………. J. [AJAY RASTOGI] …..................................J. [BELA M. TRIVEDI] NEW DELHI; 28.02.2023 12