IMTIYAZ AHMAD MALLAversusTHE STATE OF JAMMU AND KASHMIR AND OTHERS

                          [2023] 3 S.C.R. 165                            165


                   IMTIYAZ AHMAD MALLA                                   A
                                  v.
    THE STATE OF JAMMU AND KASHMIR AND OTHERS
           (Special Leave Petition (Civil) No. 678 of 2021)
                       FEBRUARY 28, 2023                                 B
      [AJAY RASTOGI AND BELA M. TRIVEDI, JJ.]
       Service Law: Reinstatement – Petitioner issued appointment
letter for the post of constable in the Jammu and Kashmir Executive
Police – He suppressed the information with regard to his involvement
                                                                         C
in the criminal case – In view thereof, his appointment order
cancelled – Later, the petitioner acquitted in the criminal case
pending against him – High Court set aside the cancellation order
– Respondent directed to take further action – On reconsideration,
the Director General of Police in view of the criminal background
of the petitioner, found him unsuitable for the post – Writ petition     D
by the petitioner seeking reinstatement – However, the Single Bench
as well as the Division Bench upheld the decision of the Director
General of Police – On appeal, held : Mere acquittal in a criminal
case does not entitle an employee to the reinstatement in service –
In the police force there is a requirement of integrity and high
                                                                         E
standard of conduct – Courts below rightly held 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 – Thus, no illegality and infirmity in
the impugned order being just and proper – No interference called
for in exercise of its jurisdiction u/Art. 136 – Constitution of India   F
– Art. 136 – Ranbir Penal Code – s. 379 – Forest Act – s. 6 .
      Constitution of India: Art. 136 – Special and extraordinary
power under – Scope of – Held: To be exercised in rare and
exceptional cases.
      Words and Phrases:”Honourable acquittal” – Meaning of.             G

      Union Territory, Chandigarh Administration And Others
      vs. Pradeep Kumar And Another (2018) 1 SCC 797 :
      [2018] 1 SCR 112; Commissioner of Police, New Delhi
      and Another vs. Mehar Singh (2013) 7 SCC 685 : [2013]
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                                 165
166            SUPREME COURT REPORTS                          [2023] 3 S.C.R.


A           13 SCR 432; Management of Reserve Bank of India,
            New Delhi vs. Bhopal Singh Panchal (1994) 1 SCC
            541 : [1993] 3 Suppl. SCR 586; R. P. Kapur vs. Union
            of India and Another AIR 1964 SC 787 : [1964] SCR
            431; Avtar Singh Vs. Union of India and Others (2016)
            8 SCC 471 : [2016] 7 SCR 445 – referred to.
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                              Case Law Reference
      [2018] 1 SCR 112                 referred to               Para 4
      [2013] 13 SCR 432                referred to               Para 9

C     [1993] 3 Suppl. SCR 586          referred to               Para 11
      [1964] SCR 431                   referred to               Para 11
      [2016] 7 SCR 445                 referred to               Para 13
            CIVIL APPELLATE JURISDICTION : Special Leave Petition
      (C) No.678 of 2021.
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            From the Judgment and Order dated 09.08.2019 of the High Court
      of Jammu & Kashmir and Ladakh at Srinagar in LPASW No.71 of
      2018.
            Vikram Hegde, Chitwan Sharma, Advs. for the Petitioner.
E         Shailesh Madiyal, Parth Awasthi, Vaibhav Sabharwal, Akshay
      Kumar, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            BELA M. TRIVEDI, J.
F           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.
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             2. Briefly stated, the petitioner had successfully participated in
      the selection process conducted in 2008-2009 for the post of constable
      in theJammu 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 undergoing the nine
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 IMTIYAZ AHMAD MALLA v. THE STATE OF JAMMU AND                                  167
     KASHMIR AND OTHERS [BELA M. TRIVEDI, J.]

months BRTC course. It appears that thereafter the search slips of the          A
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
                                                                                B
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            C
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
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Gundchobotra instead of Pakhribal in order to get a clean chit at the time
of police verification. Under the 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           E
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         F
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        G
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
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168                SUPREME COURT REPORTS                         [2023] 3 S.C.R.


A     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 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,
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      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
C     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.
D            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 bringhome the charges levelled against him, and therefore his acquittal
      in the said case was required to be treated as an honorable acquittal. He
E     further submitted that the very basis for presuming that the petitioner
      had a criminal background was no 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
F     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
G               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
      1
H         (2018) 1 SCC 797
     IMTIYAZ AHMAD MALLA v. THE STATE OF JAMMU AND                                169
         KASHMIR AND OTHERS [BELA M. TRIVEDI, J.]

          be convicted, as benefit of doubt goes to the accused. Prosecution      A
          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
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          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             C
petitioner was tried, the petitioner was afforded a benefit of doubt in
view of the contradictory evidence which had 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         D
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             E
          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        F
          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        G
          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
2
    (2013) 7 SCC 685                                                              H
170            SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A           “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
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            prosecution miserably fails to prove the charges levelled against
            the accused, it can possibly be said that the accused was honourably
            acquitted.
            26. In light of the above, we are of the opinion that since the
            purpose of the departmental proceedings is to keep persons, who
C           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.
D           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
E           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
F           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
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            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
H           taking decisions in these matters to the Screening Committee.
IMTIYAZ AHMAD MALLA v. THE STATE OF JAMMU AND                               171
    KASHMIR AND OTHERS [BELA M. TRIVEDI, J.]

   The decision of the Screening Committee must be taken as final           A
   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
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   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.                                                       C
   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                    D
   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         E
   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       F
   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       G
   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 incorporated in the Standing
   Order is strictly implemented.”
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172                SUPREME COURT REPORTS                           [2023] 3 S.C.R.


A           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 interalia 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
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      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 PradeepKumar’s case (supra) also it was reiterated that
C     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
D               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
E               [Inspector General of Police v. S. 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. BhopalSingh
F               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
G               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
      3
          (1994) 1 SCC 541
      4
          AIR 1964 SC 787
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     IMTIYAZ AHMAD MALLA v. THE STATE OF JAMMU AND                                 173
         KASHMIR AND OTHERS [BELA M. TRIVEDI, J.]

          by the expression “honourably acquitted”. When the accused is            A
          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. …….                                                                  B
          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             C
          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   D
          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 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          E
          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          F
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        G
          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
5
    (2016) 8 SCC 471                                                               H
174             SUPREME COURT REPORTS                             [2023] 3 S.C.R.


A     High Court in the impugned judgement has also elaborately dealt with
      each andevery aspect of the issues involved, while upholding the orderof
      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
B
      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
C     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.

      Nidhi Jain                                                        SLP dismissed.
D     (Assisted by : Bhavyata Kapoor and Tamana, LCRAs)




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