IMTIYAZ AHMAD MALLA VERSUS THE STATE OF JAMMU AND KASHMIR AND OTHERS

IMTIYAZ AHMAD MALLA VERSUS THE STATE OF JAMMU AND KASHMIR AND OTHERS 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



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 petitionerappellant 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
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
Administration And Others Vs. Pradeep Kumar And Another1
,
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.
Mehar Singh2
, this Court on similar issues as involved in the
present case observed as under:
“25. The expression “honourable acquittal”
was considered by this Court in S.
Samuthiram [Inspector General of Police v. S.
Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC
(Cri) 566 : (2013) 1 SCC (L&S) 229] . In that
case this Court was concerned with a situation
where disciplinary proceedings were initiated
against a police officer. Criminal case was
pending against him under Section 509 IPC
and under Section 4 of the Eve-Teasing Act.
He was acquitted in that case because of the
non-examination of key witnesses. There was
a serious flaw in the conduct of the criminal
case. Two material witnesses turned hostile.
Referring to the judgment of this Court
in RBI v. Bhopal Singh Panchal [(1994) 1 SCC
541 : 1994 SCC (L&S) 594 : (1994) 26 ATC
619] , where in somewhat similar fact situation,
this Court upheld a bank's action of refusing to
reinstate an employee in service on the ground
that in the criminal case he was acquitted by
giving him benefit of doubt and, therefore, it
was not an honourable acquittal, this Court
held that the High Court was not justified in
setting aside the punishment imposed in the
departmental proceedings. This Court
observed that the expressions “honourable
acquittal”, “acquitted of blame” and “fully
exonerated” are unknown to the Criminal
Procedure Code or the Penal Code. They are
coined by judicial pronouncements. It is difficult
to define what is meant by the expression
“honourably acquitted”. This Court expressed
that when the accused is acquitted after full
consideration of the prosecution case and the
prosecution miserably fails to prove the
charges levelled against the accused, it can
possibly be said that the accused was
honourably acquitted.
2 (2013) 7 SCC 685
6
26. In light of the above, we are of the opinion
that since the purpose of the 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.”
10. It was further observed therein that if the Screening Committee’s
decision was not mala fide or actuated by extraneous
considerations, then the same could not be questioned.
“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
7
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 the trust reposed in it and must
treat all candidates with an even hand.
36. The Screening Committee's proceedings
have been assailed as being arbitrary,
unguided and unfettered. But, in the present
cases, we see no evidence of this. However,
certain instances have been pointed out where
allegedly persons involved in serious offences
have been recommended for appointment by
the Screening Committee. It is well settled that
to such cases the doctrine of equality
enshrined in Article 14 of the Constitution of
India is not attracted. This doctrine does not
envisage negative equality (Fuljit Kaur [Fuljit
Kaur v. State of Punjab, (2010) 11 SCC 455] ).
It is not meant to perpetuate illegality or fraud
because it embodies a positive concept. If the
Screening Committee which is constituted to
carry out the object of the comprehensive
policy to ensure that people with doubtful
background do not enter the police force,
deviates from the policy, makes exception and
allows entry of undesirable persons, it is
undoubtedly guilty of committing an act of
grave disservice to the police force but we
cannot allow that illegality to be perpetuated by
allowing the respondents to rely on such
cases. It is for the Commissioner of Police,
Delhi to examine whether the Screening
Committee has compromised the interest of
the police force in any case and to take
remedial action if he finds that it has done so.
Public interest demands an in-depth
examination of this allegation at the highest
level. Perhaps, such deviations from the policy
are responsible for the spurt in police
excesses. We expect the Commissioner of
Police, Delhi to look into the matter and if there
is substance in the allegations to take
necessary steps forthwith so that policy
8
incorporated in the Standing Order is strictly
implemented.”
11. The expression “honourable acquittal” had also come up for
consideration in other cases namely, Management of Reserve
Bank of India, New Delhi Vs. Bhopal Singh Panchal3
; and in
R.P. Kapur Vs. Union of India and Another4
 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
Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC
(Cri) 566 : (2013) 1 SCC (L&S) 229] , in which
this Court held as under: (SCC p. 609, para 24)
“24. The meaning of the expression
“honourable acquittal” came up for
consideration before this Court in
RBI v. Bhopal Singh Panchal
[RBI v. Bhopal Singh Panchal, (1994) 1
SCC 541 : 1994 SCC (L&S) 594] . In
that case, this Court has considered the
impact of Regulation 46(4) dealing with
honourable acquittal by a criminal court
on the disciplinary proceedings. In that
context, this Court held that the mere
acquittal does not entitle an employee to
reinstatement in service, the acquittal, it
was held, has to be honourable. The
expressions “honourable acquittal”,
“acquitted of blame”, “fully exonerated”
are unknown to the Code of Criminal
Procedure or the Penal Code, which are
coined by judicial pronouncements. It is
difficult to define precisely what is meant
by the expression “honourably
acquitted”. When the accused is
acquitted after full consideration of
prosecution evidence and that the
prosecution had miserably failed to
prove the charges levelled against the
accused, it can possibly be said that the
accused was honourably acquitted.”
11. …….
12. …….
13. It is thus well settled that acquittal in a
criminal case does not automatically entitle him
for appointment to the post. Still, it is open to
the employer to consider the antecedents and
examine whether he is suitable for appointment
to the post. From the observations of this Court
in Mehar Singh [Commr. of Police v. Mehar
Singh, (2013) 7 SCC 685 : (2013) 3 SCC (Cri)
669 : (2013) 2 SCC (L&S) 910] and Parvez
Khan [State of M.P. v. Parvez Khan, (2015) 2
SCC 591 : (2015) 1 SCC (L&S) 544] cases, it
is clear that a candidate to be recruited to the
police service must be of impeccable character
and integrity. A person having criminal
antecedents will not fit in this category. Even if
he is acquitted or discharged, it cannot be
10
presumed that he was honourably
acquitted/completely exonerated. The decision
of the Screening Committee must be taken as
final unless it is shown to be mala fide. The
Screening Committee also must be alive to the
importance of the trust reposed in it and must
examine the candidate with utmost character.”
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
Others5
 has laid down the precise guidelines. Para 38.5 thereof
reads as under:
“38.5. In a case where the employee has made
declaration truthfully of a concluded criminal
case, the employer still has the right to
consider antecedents, and cannot be
compelled to appoint the candidate.”
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

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